Younkers v. Ocean County.

• Citation: 130 N.J.L. 607,33 A.2d 898
• Decision Date: 16 September 1943
• Docket Number: No. 1.,1.
• Parties: YOUNKERS et al. v. OCEAN COUNTY.
• Court: New Jersey Supreme Court

130 N.J.L. 607

33 A.2d 898

YOUNKERS et al.

v.OCEAN COUNTY.

No. 1.

Court of Errors and Appeals of New Jersey.

Sept. 16, 1943.

Appeal from Supreme Court.

Action by Marvin Younkers, by his next friend, Josephine Younkers, and Josephine Younkers, individually, against the County of Ocean, a municipal corporation of the State of New Jersey, for personal injuries sustained by the infant plaintiff when run over by a road grader owned by the County. Defendant's motions for nonsuit and for a direction of verdict in its favor were denied, judgment was entered against the defendant, and it appeals.

Affirmed.

PERSKIE, Justice, and WELLS, RAFFERTY, THOMPSON, and DILL, Judges, dissenting.

Robert A. Lederer, of Toms River, for appellant.

Edward W. Haines, of Toms River, for respondents.

COLIE, Justice.

The appellant County of Ocean appeals from a judgment entered against it at the Ocean County circuit of the Supreme Court. The co-defendant, Richard Burton, against whom judgment also went, does not appeal. The grounds of appeal are error in denying a motion for nonsuit and for a direction of verdict in favor of the County of Ocean.

The defendant, County of Ocean, was not, under the facts hereinafter stated, engaged in the performance of a governmental function and therefore liability could be imposed upon it for the negligent operation of the instrument here involved. Olesiewicz v. City of Camden, 100 N.J.L. 336, 126 A. 317.

Marvin Younkers, a minor, was employed as a laborer on roadwork by the Borough of Pine Beach. On February 25, 1939, he sustained serious injuries when run over by a road grader operated by Richard Burton. The grader was owned by the County of Ocean but rented to the Borough of Pine Beach at the rate of two dollars an hour. When the grader was rented to a municipality the operator was furnished by the County of Ocean but was paid on an hourly basis by the Borough of Pine Beach and the operator's name was carried on the pay-roll of the Borough. When doing county work, Burton was paid by the county and was under the supervision of the county road supervisor. When doing work for the municipality, the county road supervisor exercised no supervision over the grader. In this case the work being done at the time of the accident was under the supervision of one Heatley, foreman of road work for the Borough of Pine Beach. The extent of his supervision was to give Burton instructions as to what the former wanted done and thereafter the latter did it according to his own judgment. Burton testified that the arrangements that he made with Heatley, the road foreman for the Borough, were acceptable to him, and that is borne out by the fact that Burton had been operating the grader on Borough road work for some weeks before the accident.

The liability of the County of Ocean to respond in damages to the plaintiff must be grounded upon the relationship of master and servant between it and the operator Burton. Control by the master over the servant is of the essence of that relationship. Spelde v. Galtieri, 102 N.J.L. 203, 130 A. 526. When a servant is permitted or directed by the master to perform services for another, he may become the servant of such other. The question of whether the general employer, or the specific employer is the master turns upon the decision as to who has the right to exercise control over the servant. The elements of the relation of master and servant have been stated by this court as ‘hiring, control, direction, and power of dismissal.’ Cf. Courtinard v. Gray Burial etc., Co., 98 N.J.L. 493 at 496, 121 A. 145, 146; N. Y., L. E. & W. R. Co. v. Steinbrenner, 47 N.J.L. 161, 54 Am.Rep. 126. In Delaware,...