Van Ness v. Bor. Of Haledon., No. 8.

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: HEHER, Justice.
• Citation: 56 A.2d 888,136 N.J.L. 623
• Parties: VAN NESS v. BOROUGH OF HALEDON.
• Decision Date: 29 January 1948
• Docket Number: No. 8.

136 N.J.L. 623
56 A.2d 888

VAN NESS
v.
BOROUGH OF HALEDON.

No. 8.

Court of Errors and Appeals of New Jersey.

Jan. 29, 1948.

Appeal from Supreme Court.

Proceeding under the Workmen's Compensation Act by Loretta Van Ness, claimant, to recover compensation for the death of Charles Van Ness, employee, opposed by the Borough of Haledon, employer. The Workmen's Compensation Bureau granted claimant compensation, and the employer appealed to the Court of Common Pleas. The Court of Common Pleas, 24 N.J.Misc. 29, 45 A.2d 673, affirmed the determination of the Workmen's Compensation Bureau, and the employer brought certiorari to the Supreme Court. From a judgment of the Supreme Court, 135 N.J.L. 222, 51 A.2d 244, reversing the judgment of the Court of Common Pleas, the claimant appeals.

Judgment of Supreme Court reversed, and judgment of Court of Common Pleas affirmed.

56 A.2d 889

Marcus & Levy, of Paterson (Isadore Rosenbloom, of Paterson, of counsel), for appellant.

William A. Davenport, of Newark (Robert E. Kiernan, of Newark, of counsel), for respondent.

HEHER, Justice.

An award of compensation under R.S. 34:15-7 et seq., N.J.S.A., to the dependents of appellant's decedent was reversed by the Supreme Court for what was found to be a failure of proof of the relationship of employer and employee between decedent and the respondent Borough at the time of the fatal mishap; and the question at the outset is whether there was error in matter of law in this determination, for if the finding rests on conflicting evidence, or on uncontroverted evidence reasonably susceptible of divergent inferences, it is conclusive on error. Mixon v. Kalman, 133 N.J.L. 113, 42 A.2d 309. We take the view that the Supreme Court misapprehended the character of the relationship, and that the proofs conclusively demonstrate that decedent was engaged in the master's service at the time of his death.

Decedent was a ‘police marshal’ of Haledon, designated as such under an ordinance which established a police department in the Borough ‘consisting of a Chief of Police and such policemen and marshals' as should thereafter be appointed, and provided, inter alia, that ‘The compensation of the members of the department shall be determined by the Council;’ that ‘The marshals shall be paid only for such time as they shall be engaged in actual duty assignment of the Mayor, Police Committee or Chief of Police;’ and that ‘All orders and assignments for any member of the Police

56 A.2d 890

Department from the Mayor or Police Committee shall be made to and through the Chief of Police.’ On the night in question, while decedent was in attendance at a session of the Police Court of the Borough of North Haledon as a witness in a case involving the enforcement of the State Motor Vehicle Act, N.J.S.A. 39:1-1 et seq., and thus in the pursuit of his official duties, word came of an accident in North Haledon which required immediate police attention. He hastened to the scene of the accident in a police radio car driven by a regular patrolman of Haledon, who had also undertaken to respond to the call, knowing that the North Haledon radio car was ‘out of call.’ A police captain of North Haledon, who was also in court preceded them in another car. When it was found that an ambulance was needed, and the police captain could not make radio contact with the emergency ambulance corps in Haledon (which also served North Haledon), decedent drove the radio car at a high rate of speed (with siren sounding and red flasher working) to the ambulance station in Haledon and, in a highly emotional state, called for the ambulance, reversed the direction of the radio car...