Bubis v. Flockhart Foundry Co.

• Decision Date: 11 March 1937
• Citation: 191 A. 281
• Parties: BUBIS v. FLOCKHART FOUNDRY CO.
• Court: New Jersey Supreme Court

191 A. 281

BUBIS

v. FLOCKHART FOUNDRY CO.

New Jersey Department of Labor—Workmen's Compensation Bureau.

March 11, 1937.

Proceeding under the Workmen's Compensation Act by John Bubis, employee, opposed by the Flockhart Foundry Company, employer.

Award in accordance with opinion.

Perry E. Belfatto, of Newark, for petitioner. Edward R. McGlynn, of Newark (Joseph Weintraub, of Newark, of counsel), for respondent.

STAHL, Deputy Commissioner.

The material facts as developed in the evidence are not in dispute, and are essentially as follows: Petitioner was regularly employed as a chipper by the respondent, whose business, as its name would impart, was that of operating a foundry. His duties consisted of chipping rough edges from castings by means of an automatic chipping machine. He received for his said services an average weekly wage of $26.25, being one-fourth of the gross weekly earnings of a crew composed of himself and three other co-workers. Petitioner and his crew worked principally in a large foundry room, situated on the ground floor of a building which was unequipped with any heating system. During the cold weather months it was the custom among the several employees to build coke fires in a certain drum-shaped salamander in order to heat the room and thus afford them some degree of comfort during their hours of employment. The use of this improvised heating device was known to the respondent, who, by acquiescence, permitted its continuance without objection. It so happened that on March 29, 1935, at about 11:45 a. m., because of the chilly condition of the room, petitioner undertook to build a fire by placing in the salamander wood and other kindling matter to which he added a small amount of gasoline from a can, and before he was able to apply a match, the gasoline came in contact with some burning embers from a previous fire which had been made earlier in the morning, causing flames to shoot out from the bottom of the salamander, igniting petitioner's clothing and causing severe burns of his body and legs. It is for the injuries sustained therein that the petitioner brings the present proceeding to recover compensation from the respondent.

White it is conceded that the petitioner's injuries were the result of an accident, the vital point in controversy turns upon the question of whether the said accident arose out of and in the course of his employment.

An accident arises "out of the employment" when it occurs in the course of the employment and results from a risk, danger, or hazard of the employment, or from conditions incidental thereto. An accident arises "in the course of the employment" when it takes place (a) within the period of employment; (b) at a place where the employee may reasonably be; and (c) while he is reasonably fulfilling the duties of the employment or doing something incidental to it.

No definite rule, applicable in all cases, can be made as to what is incidental to an employment. It depends largely upon the nature of each particular employment; for what may be considered a condition incidental to one type of employment may be wholly unrelated to another or different type of employment. However, it is generally accepted, not only in this jurisdiction but in other jurisdictions as well, that the performance of acts of personal comfort are incidents of an employment. In 71 C.J. 669, referring to acts of personal comfort, there appears the following: "An injury sustained by an employe while engaged in the performance of an act essential to his personal comfort and convenience, is compensable as 'arising out of and 'in the course of the employment.'" And in 1 Honnold on Workmen's Compensation there appears the following on page 381: "Acts of ministration by a servant to himself such as quenching a thirst, relieving his hunger, protecting himself from excessive cold, performance of which while at work are reasonably necessary to his health and comfort, are incidents to his employment and acts of service therein within the Workmen's Compensation acts, though they are only indirectly conducive to the purpose of the employment. Consequently no break in the employment is caused by the mere fact that the workman is ministering to his personal comforts or necessities, as by warming himself, or seeking shelter, or by leaving his work to relieve nature, or to procure a drink, refreshments, food, or fresh air, or to rest in the shade."

This rule was applied in Zabriskie v. Erie Railroad Co., 85 N.J.Law, 157, 88 A. 824, where an employee during the hours of his work found it necessary to resort to a toilet upon the respondent's premises, which it was shown to be the continued practice of the employer's workmen to use without dissent of the employer, but which toilet was so located as to make it necessary for the employee to cross the employer's railroad tracks to reach it, in doing which he was struck by one of the employer's trains, receiving fatal injuries; held, that the death was by accident, arising out of and in the course of his employment. Also in Hanna v. Erie...