Flanagan v. Charles E. Green & Son

• Decision Date: 04 November 1938
• Docket Number: Nos. 210, 213.,s. 210, 213.
• Citation: 2 A.2d 180,121 N.J.Eq. 327
• Parties: FLANAGAN v. CHARLES E. GREEN & SON.
• Court: New Jersey Supreme Court

2 A.2d 180

121 N.J.Eq. 327

FLANAGAN

v. CHARLES E. GREEN & SON.

Nos. 210, 213.

Supreme Court of New Jersey.

Nov. 4, 1938.

Proceeding under the Workmen's Compensation Act by Fergus F. Flanagan against Charles E. Green & Son. To review a judgment entitling petitioner to receive compensation for 200 weeks at the rate of $15 per week, defendant brings certiorari.

Affirmed in part and reversed in part and entered.

Argued October term, 1938, before CASE, DONGES, and PORTER.

R. Robinson Chance and Kellogg & Chance, all of Jersey City, for prosecutor in certiorari.

Frank G. Turner, of Newark, for respondent in certiorari.

CASE, Justice.

The writ of certiorari brings up for review a judgment for workmen's compensation rendered by the Essex County Court of Common Pleas. At the time of the accident for which recovery was had below Fergus F. Flanagan, the employee, was sixty-nine years of age and had been in the employ of the prosecutor as machine operator since 1913. The lunch period was from twelve to twelve-thirty. Flanagan regularly ate his lunch by the machine where his work was. No special place was provided in the factory as an eating place for the employees, but it was customary, though not compulsory, for the latter to eat in the shop. On the day in question Flanagan, having finished his lunch, went to a sink in the back of the room to wash his milk bottle and on the way back to his machine stumbled over a stool and fell. As a result of the fall his left leg was broken; specifically, the trochanters at the juncture of the neck and shaft of the femur were fractured. Prosecutor, upon learning of the accident, sent Flanagan to the attending physician, and the latter placed him in St. James Hospital. While Flanagan was at the hospital undergoing treatment for the fractured femur, his arm was injured as an incident to the changing of the bed-sheets by the hospital nurses.

The determination below found that there were permanent injuries to both the leg and the arm. Compensation was allowed for those permanent injuries at $15 a week for a period of 200 weeks.

Prosecutor's first point is that the original injury was not from an accident arising out of and in the course of the employment. The essential facts of that accident came into proof by the admission in evidence of a signed statement which prosecutor's insurer had procured from the employee. The statement was offered and admitted in evidence upon this remark made in the presence of counsel for the employer and without remonstrance from him: "* * * both parties are submitting the statement to your Honor to pass upon the factual question." We construe this quoted sentence as equivalent to a stipulation by the parties that the facts of the accident were as set forth in the statement. The contention of the prosecutor upon the proposition stated above as the first point is that the facts do not show an accident "arising out of the employment". This boils down to the question whether workmen who, with the tacit consent of the employer, have established the custom of eating their noon lunch in the ambit of the machine upon which they are employed are out of their employment to the extent that they have no protection under the Workmen's Compensation Act, R.S.1937, 34:15-1 et seq, while so engaged. There is no suggestion of horseplay or skylarking. Upon the simple legal proposition thus stated the trend of the decisions in this state and the holdings in a number of other jurisdictions are that the workman is still in his employment in the sense that he is within the coverage of the compensation acts. For a review of the leading cases up to the time of the decision, see Hanna v. Frie Railroad Co., 152 A. 179, 8 N.J.Misc. 829. In the cited case the workman was employed by the Erie Railroad Company in the setting of valves and piston backing in engines. It was customary for the employees to eat their lunch in the period between three o'clock and three-twenty o'clock and for some of the men to eat in the machine shop. Hanna undertook to eat his lunch in the machine shop and sat upon a machine which thereupon began operating to his serious injury and almost immediate death. It was found that the accident arose out of and in the course of the employment. That is a direct holding, as it seems to us, upon the question here involved. In McInerney v. Buffalo & S. R. Corporation, 225 N.Y. 130, 121 N.E. 806, the decision went contra to the claim of the workman on the facts of the case, but this language is used: "It is true that it...