Summary
In Tettemer v. Slisz, 131 N.J.L. 185 (E. A. 1944), petitioner was employed by the operator of a dairy farm to help rebuild a barn which had been accidentally destroyed by fire.
Summary of this case from Malloy v. Capitol BakeryOpinion
Submitted October 29, 1943 —
Decided January 27, 1944.
On appeal from a judgment of the Supreme Court, in which Mr. Justice Porter filed the following opinion:
"The writ of certiorari brings before me for review the determination and judgment in this Workmen's Compensation case. By consent of counsel it was made returnable before me, sitting alone.
"It is not disputed that Tettemer, the petitioner, was working as a carpenter in the building of a barn owned by Slisz, the prosecutor, at his farm near Flemington, and that while working on the barn on November 10th, 1940, he fell from a ladder and was seriously injured. He claims to have been employed by Slisz together with two other carpenters at an hourly rate of compensation; that Slisz was in charge of the work and worked with the men, all of whom were under his directions. There seems some dispute as to whether Slisz was in charge of the work and the manner in which the men were hired and paid. However that may be, the insurance carrier, prosecutor, does not now deny that petitioner was in his employ, but makes the point that he was a casual employee and that his injuries are therefore not compensable. The statute N.J.S.A. 34:15-36 defines casual employment as follows: `* * * Casual employments, which shall be defined, if in connection with the employer's business, as employment the occasion for which arises by chance or is purely accidental; or if not in connection with any business of the employer, as employment not regular, periodic or recurring.' Tested by that definition, I do not think that this employment was casual. Slisz conducted a dairy farm. His barn was destroyed by fire. It was neecssary to have a barn in which to house his cattle. That was surely in connection with and a regular part of his business. To have a barn built under these circumstances is not chance or accident, as those words are used in the statute. The fact that the barn had accidently been destroyed, it seems to me, is of no significance. To provide housing for his herd is a regular part of his business, whether rebuilding a destroyed barn or building an additional one made necessary because of increased herds and enlarged business. Both the Bureau and the Pleas on appeal found as a fact that the petitioner was employed by Slisz regularly and not casually, and was injured out of and in the course of the employment. I think the proofs fully support those findings. I so find. Having reached this conclusion, it becomes unnecessary to consider the effect on the liability of the insurance carrier in making certain payments and agreements under the claim against it.
"The judgment under review is affirmd."
For the appellants, Arthur F. Mead.
For the respondent, Kellogg Chance.
The judgment under review will be affirmed, for the reasons expressed in the opinion of Mr. Justice Porter.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, COLIE, DEAR, WELLS, RAFFERTY, HAGUE, THOMPSON, DILL, JJ. 14.
For reversal — None.