Hulley v. Moosbrugger

• Decision Date: 15 November 1915
• Docket Number: No. 60.,60.
• Citation: 95 A. 1007
• Parties: HULLEY v. MOOSBRUGGER.
• Court: New Jersey Supreme Court

95 A. 1007

HULLEY

v. MOOSBRUGGER.

No. 60.

Court of Errors and Appeals of New Jersey.

Nov. 15, 1915.

(Syllabus by the Court.)

Appeal from Supreme Court.

Proceedings under the Workmen's Compensation Act by Annie E. Hulley to obtain compensation for death of an employé, opposed by Herman F. Moosbrugger, the employer. Compensation was awarded, the judgment was affirmed by the Supreme Court on certiorari (93 Atl. 79), and the employer appeals. Reversed.

McCarter & English, of Newark, for appellant. Clarence E. Case, of Somerville, for appellee.

WALKER, Ch. The question argued, and therefore the only one to be decided upon this appeal, is as to whether or not an employer is liable, under the Workmen's Compensation Act (P. L. 1911, p. 134), to make compensation for injury to an employé which was the result of horseplay or skylarking, so called. The injury in this case resulted in death. The facts are succinctly stated in the opinion of Mr. Justice Kalisch in the Supreme Court (93 Atl. p. 79) as follows:

"William Hulley, a journeyman plumber, the petitioner's decedent, was in the employ of the prosecutor, a master plumber. On the 17th day of September, 1913, the decedent was doing a plumbing job for his master in a dwelling house, the completion of which job required some fittings that were contained in a bin in his employer's shop. At five o'clock in the afternoon the decedent quit work and went to his employer's shop, and, while on his way to the bin for the fittings to be used on the job in which he was engaged, a fellow workman, in a spirit of play, whom the deceased was passing, swung his arm around, either to knock off decedent's hat or to strike him, whereupon the decedent, in dodging the attack, slipped on the descending concrete floor, fell, and sustained injuries which caused his death."

It seems to be immaterial whether Hulley instigated the larking, or took part in it, and it may be assumed that he did neither, which appears to be the fact.

To warrant recovery for the death of an employé under section 2 of the act mentioned, it must not only appear that it was the result of an accident which occurred "in the course of his employment," but also that it arose "out of the employment." Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458.

The judge of the Somerset common pleas held that the petitioner was entitled to recover for the death of her intestate for injuries sustained by reason of the accident, which, he says, arose out of and in the course of the decedent's employment. Although the findings of the court of common pleas as to the facts of the case are conclusive, according to section 18 of the act, and the decision of the Supreme Court in Sexton v. Newark Dist. Tel. Co., 84 N. J. Law, 85, 86 Atl. 451 (affirmed on another ground, s. c, 86 N. J. Law, 701, 91 Atl. 1070), and therefore are conclusive here, yet, nevertheless, the law arising upon ascertained facts is a question for the court reviewing the decision (Bryant v. Fissell, supra).

The Supreme Court in its opinion properly held that the principle to be deduced from the adjudications in this state is that, where an accident is the result of a risk reasonably incident to the employment, it is an accident arising out of the employment; but the facts of the case at bar do not bring it within the doctrine. In none of the cases cited by the Supreme Court did the injury result from horseplay or skylarking—not even in the Massachusetts case In re Employers' Liability Assurance Corp., 102 N. E. 697; s. c, sub nom. McNichol's Case, 215 Mass. 497, wherein it was held:

"Under St. 1911, c. 751, pt. 2, § 1, which provides that payments of compensation under the Workmen's Compensation Act shall be made where an employé 'receives a personal injury arising out of and in the course of his employment,' in order that a claim for such compensation should he sustained, it must appear that the injury had its origin in a risk connected with the employment and that it flowed from that source as a natural consequence. Injuries, resulting in death, received by a checker in the employ of a firm of importers, while doing his work at a dock, from blows or kicks given him by a fellow workman in 'an intoxicated frenzy and passion,' where such fellow workman was known to the superintendent in charge of the work to have the habit of drinking to intoxication and when in that condition to be quarrelsome, dangerous, and unsafe to work with, and knowingly was permitted by such superintendent to continue to work on the day of the injury while in such a condition of intoxication, arc injuries arising out of and received in the course of the workman's employment within the meaning of the Workmen's Compensation Act."

And Rugg, C. J., in delivering the opinion of the court, observed, at page 498 of 215-Mass., 102 N. E. 697:

"The first question is whether the deceased received an 'injury arising out of and in the course of his employment,' within the meaning of those words in part 2, § 1, of the act. In order that compensation may be due, the injury must both arise out of and also be received in the course of the employment. Neither alone is enough. It is not easy nor necessary to the determination of the case at bar to give a comprehensive definition of these words which shall accurately include all cases embraced within the act and with precision exclude those outside its terms. It is sufficient to say that an injury is received 'in the course of the employment when it comes while the workman is doing the duty which he is employed to perform. It 'arises out of' the employment, when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises 'out of the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business, and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence."

In McNichol's Case the Supreme Judicial Court of Massachusetts cited the English cases in which it had been held that certain extraneous injuries arose in the course and out of employment, and also those in which the contrary had been held, citing Armitage v. L. & Y. Ry. Co. and Craske v. Wigan, infra, observing, in effect, that the conclusions reached in those cases accorded with their facts. We regard the McNichol Case as an authority for the result reached in the case at bar.

We have no case in this state in which the right to recover under the Workmen's Compensation Act has arisen out of an accident which was the result of horseplay or skylarking, so called; but the right to recover in such circumstances has been denied in several well-considered English cases, and the Supreme Court said in Bryant v. Fissell, supra, that, as the language of...