Green v. De Furia

• Decision Date: 27 June 1955
• Docket Number: No. A--168,A--168
• Citation: 116 A.2d 19,19 N.J. 290
• Parties: James GREEN, Petitioner-Appellant, v. Frank DE FURIA and John Benedetto, t/a Black and White Garage, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 290

19 N.J. 290

116 A.2d 19

James GREEN, Petitioner-Appellant, v. Frank DE FURIA and John Benedetto, t/a Black and White Garage, Defendants-Respondents.

No. A--168.

Supreme Court of New Jersey.

Argued June 13, 1955.

Decided June 27, 1955.

Herman M. Wilson, Newark, for appellant (Harvey A. Lieb, Newark, attorney).

Henry F. Hoey, Jr., Newark, for respondents (William P. Braun, Newark, attorney).

The opinion of the court was delivered by

WACHENFELD, J.

The question on this appeal is whether appellant had removed himself from the coverage of the Workmen's Compensation Act at the time he sustained the injuries for which he now seeks recovery.

Prior to June 11, 1953 appellant, James Green, was employed as a gasoline station attendant. He worked the night shift and his duties were, as he described them, 'to sell gas and oil at night and answer the telephone (for tow calls), take the message and relay it to one of the men who did the towing.'

Between 1 a.m. and 2 a.m. on the morning of June 11, he was sitting in the gasoline station with a friend known to him only as 'Frankie,' who frequently hung around the station at night, when the horn of an automobile parked in a gasoline station across the street short-circuited and commenced blowing. The noise created by the blowing of the horn continued for about five or ten minutes, during which time the phone located inside the door of the gasoline station rang but Green was unable to hear the message because of the blaring of the horn. The noise also aroused the sleeping neighborhood and several persons yelled from their windows to appellant to 'stop the noise,' and one of the neighbors called the police to report the incident.

Asked how the noise affected him and what he did, appellant said, 'Well, I couldn't take care of the phone like I should and answer them when they called, so I went across the street to stop the horn myself.' Stopping the horn consisted of raising the hood of the car and disengaging a wire.

This accomplished, appellant started back to his own station, but as he did so, he fell into a grease pit over which the offending car was parked, sustaining a fractured femur and other injuries for which recovery was sought in the Workmen's Compensation Division.

At the hearing before the deputy director, appellant acknowledged he had been told by one of his employers 'never to leave the gas station alone.' John Benedetto, one of the partners who owned the station at which Green worked, testified appellant's instructions were 'to do his job, sell gas and oil, answer the phone calls, if anything came in never to leave the place alone but that alone meant never to leave anybody in there because even people sitting in the office if he is pumpting gas they steal cigarettes and other things. Taat alone meant never to leave anybody else in there or anybody--never to leave the premises.'

At the conclusion of the hearing, the deputy director denied compensation, holding the appellant, in crossing the street to fix the horn, was a volunteer and had departed from his own employment. On appeal from the denial of compensation, the County Court held otherwise, concluding that appellant's 'leaving of his post was designed to serve the business of his master,' and therefore the injury arose out of and in the course of the employment, and entered an award in appellant's favor.

In the Appellate Division, 34 N.J.Super. 521, 112 A.2d 747, 750, the majority reversed the determination of the County Court, holding while 'much could be said to support the conclusion of the deputy director that petitioner was not in fact on the business of his employer at the time,' it was also clear the petitioner 'was specifically enjoined by his employers not to leave the premises' and therefore 'his injury while so doing takes him out of the coverage of the statute.'

In his dissenting opinion, the minority judge found since towing was part of the defendants' business, the answering of the telephone was an important part of appellant's duties, and appellant's testimony that the continuous noise interfered with conversation on the telephone, which caused him to eliminate the difficulty, was entitled to credence and the act was reasonably related to the employment and hence arose out of the employment. Furthermore, the minority judge was of the conclusion that appellant, in leaving the premises, had not disobeyed his employer's instructions, which were simply 'never to leave the place alone,' since 'Frankie' was in the station when appellant crossed the street and the station was in full view of the appellant at all times.

The line which separates acts of an employee performed for his own personal benefit and those done in furtherance of his master's interests concededly is at times an illusive one, if it exists at all. Compare Pacific Indemnity Co. v. Industrial Accident Commission, 105 Cal.App. 535, 288 P. 129 (D.Ct.App.1930), and Pawela v. Niagara From the Air, Inc., 264 App.Div. 962, 37 N.Y.S.2d 66 (App.Div.1942), with Ridler v. Sears, Roebuck & Co., 224 Minn 256, 28 N.W.2d 859 (Sup.Ct.1947), and Priglise v. Fonda, J. & G.R. Co., 192 App.Div. 776, 183 N.Y.S. 414 (App.Div.1920). In deference to the broad and liberal interpretation to be accorded workmen's compensation laws, Gargiulo v. Gargiulo, 13 N.J. 8, 13, 97 A.2d 593 (1953); Spindler v. Universal Chain Corp., 11 N.J. 34, 38, 193 A.2d 171 (1952), the courts have expanded the concept of 'arising out of the employment' to include acts normally outside the employment performed for the benefit of third persons but the effect of which is to foster public good will toward the master, e.g., Yates v. Humphrey, 218 Iowa 792, 255 N.W. 639 (Sup.Ct.1934); Gross v. Davey Tree Expert Co., 248 App.Div. 838, 290 N.Y.S. 168 (App.Div.1936); Pacific Indemnity Co. v. Industrial Accident Commission, supra; Pawela v. Niagara From the Air, Inc., supra; Larson, Workmen's Compensation Law, § 27.22 (1952). Certainly, even if we assume the motivating factor of Green's mission across the street was to appease the neighbors who had been awakened by the sound of the horn, it is arguable that the case falls within this classification and compensation ought to be allowed regardless of any other nexus between his conduct and his employment.

In any event, the answer to the question whether Green was a volunteer when he left the station and walked across the street to stop the horn depends upon the acceptance or rejection of his testimony that the noise of the horn rendered impossible the performance of his conceded duty to answer the telephone. No one disputes the right of an employee to remove obstacles interfering with the performance of his obligations to his employer, irrespective of whether the interference was occasioned by the act of a third person or of incidental benefit to others than the immediate employer. Oklahoma Ry. Co. v. Cannon, 198 Okl. 65, 176 P.2d 482 (Sup.Ct. 1946); Texas Employers Ins. Ass'n, v. Ferguson, 196 S.W.2d 677 (Tex.Civ.App.1946); Leary v. Dept. of Labor & Industries, 18 Wash.2d 532, 140 P.2d 292 (Sup.Ct.1943). It matters not whether the act performed and the risk assumed by the employee is directly connected with the employment or extraordinary in character, so long as the employment is a necessary factor leading to the accident. Geltman v. Reliable Linen & Supply Co., 128 N.J.L. 443, 446--447, 25 A.2d 894, 139 A.L.R. 1465 (E. & A. 1942); Gargiulo v. Gargiulo, supra, 13 N.J. at page 12, 97 A.2d 593.

We agree with the County Court and the minority below that there is no basis on the record before us for denying credence to appellant's testimony as to his inability to answer the telephone. Certainly it is not beyond the realm of belief that the raucous noise of the modern automobile horn is capable of drowning out a telephone conversation immediately across the street. Respondents suggest, however, that it is highly improbable that appellant received a telephone call at the precise time the horn was blowing. We fail to see merit in this suggestion. One of appellant's specific duties was to answer the telephone for emergency tow calls. A call could have come at the time the horn was blowing as well as at any other time. Moreover, we note no attempt was made to attack appellant's testimony in this respect on cross-examination.

But, it is said, even if the noise of the horn constituted an interference with appellant's answering of the telephone, nevertheless compensation should be denied becase the means of eliminating the interference[116 A.2d 23] --going across the street to disengage the horn's wire--was unreasonable in view of the fact that app...