Opinion
Submitted February 16, 1934 —
Decided May 4, 1934.
On appeal from a judgment of the Supreme Court, which affirmed a judgment of the Atlantic County Court of Common Pleas, on appeal from a determination of the workmen's compensation bureau. The Supreme Court based its affirmance on the reasons expressed in the opinion of Judge Smathers in the Court of Common Pleas, which opinion reads in part as follows:
"There appears to be in the testimony ample and uncontradicted proof to support the finding of the deputy commissioner that Francis Felix Toner, deceased, met his death during and in the course of his employment.
"This leaves for consideration and determination the question as to which of the respondents was the employer of the said Francis Felix Toner.
"It is the fundamental principle of law that the relationship of master and servant exists wherever the employer retains the right to direct the manner in which the business or work is to be done, as well as the result to be accomplished, or in other words, not only what shall be done, but how it shall be done. The testimony on the part of the petitioner seems to be replete with the indication that the local association lost its power of designation and direction of its business agent by the specific orders of the International Association. The International Association, by the letter of December 29th, marked Exhibit P-1, took full supervision and direction of the local and suspended their officers and placed its vice-president in full charge of the affairs of the local.
"The International constitution, under article 9, sections 8, 9 and 10, gives the president the power to suspend the officers of any local for being delinquent or derelict in their duties. This court, however, is unable to find any power delegated to it by its constitution or the constitution of the local to make appointments on behalf of the local. It seems, therefore, that the appointment of Francis Felix Toner as business agent for the local association was not within the power delegated, or with the consent of the governed, and in making such appointment the International Association assumed the full responsibility. The local neither delegated that power, nor did it at any subsequent time, according to the testimony, ratify the act of the International.
"The two witnesses on behalf of the International both seemed to indicate that Francis Felix Toner was, in the last analysis, responsible to the International Association, and although the local executive board was his immediate superior, the action of the executive board was, during the period of the suspension of the officers of the local by the International, subject to the approval or disapproval of the International. Proof of this power in the International is exemplified by the discharge of the secretary, Mr. O'Mally, by the International even though the local executive board refused to discharge him. The power to discharge is essential between master and servant and is an indicium of the relationship.
"The respondents seem to rely upon the proof that Mr. Toner received a salary from the local is an indication that the local was his employer. Although the payment of salary may be one of the elements of proof of the employment, it is by no means controlling. It has been held in this state that relationship of master and servant is not determined by the manner of payment, but by the control exercised, and receipt of payment from one does not preclude the employe from acting pro hac vice as the servant of another. The matter of payment of salary in this instance seems to have been one of constitutional provision which inured to the benefit of the International, but in nowise limited its power of designation, control and direction which it assumed. The court finds no constitutional provision or agreement between the local and the International which makes the appointee of a member of any local to an office in the local association a servant of that local, and in view of the lack of such authority, or a confirmation of such appointment by the local, this court is forced to conclude that the relationship of master and servant did not exist between the local association and the said Francis Felix Toner. On the other hand, the appointment of the said Francis Felix Toner by the International and the retention of the complete supervision and control of the International over its appointees, and Francis Felix Toner as agent, brings this court to the conclusion that error was committed in the finding of the deputy commissioner upon the question of which of the respondents was the employer. This court is of the opinion that the International Association was the employer of Francis Felix Toner and is responsible for the sum due to the petitioner, Theresa E. Toner, as found by the deputy commissioner."
For the appellant, Andrew F. Zazzali.
For the respondent, Louis M. Mallin.
The judgment under review will be affirmed, for the reasons expressed in the opinion filed in the Atlantic County Court of Common Pleas, ubi supra. For affirmance — THE CHIEF JUSTICE, TRENCHARD, PARKER, HEHER, VAN BUSKIRK, KAYS, HETFIELD, DEAR, DILL, JJ. 9.
For reversal — THE CHANCELLOR, LLOYD, PERSKIE, WELLS, JJ. 4.