Mack Trucks, Inc. v. Miller, 122

• Decision Date: 23 October 1974
• Docket Number: No. 122,122
• Citation: 326 A.2d 186,23 Md.App. 271
• Parties: MACK TRUCKS, INC., et al. v. Larry L. MILLER.
• Court: Court of Special Appeals of Maryland

Page 271

23 Md.App. 271

326 A.2d 186

MACK TRUCKS, INC., et al. v. Larry L. MILLER.

No. 122.

Court of Special Appeals of Maryland.

Oct. 23, 1974.

Howard W. Gilbert, Jr., Hagerstown, with whom were Mackley, Gilbert & France, Hagerstown, on the brief, for appellants.

W. Kennedy Boone, Hagerstown, with whom were Wachs, Kreykenbohm & Boone, Hagerstown, on the brief, for appellee.

Argued before MORTON, MOORE and LOWE, JJ.

LOWE, Judge.

Larry L. Miller, appellee, was injured during a 'coffee-break' while playing touch football on a grass plot owned by his employer, Mack Trucks, Inc., in front of the building where he worked. His claim, for compensation resulting from a ruptured kidney was denied by the Workmen's Compensation Commission. His appeal to the Circuit Court for Washington County reversed that denial with a finding that Miller had sustained an accidental injury arising out of and in the course of his employment. This appeal was taken by Mack Trucks, Inc. and its insurer, the Travelers Insurance Company. The only question to be decided is whether the injury incurred by Miller arose out of and in the course of his employment.

Miller's regular shift hours on the day of the injury were from 8:00 a.m. to 4:00 p.m. He was permitted seventy minutes for lunch at the noon hour and two fifteen minute 'coffee-breaks,' one at 10:00 a.m. and one at 2:30 p. m. During the afternoon 'coffee-break' Miller and his co-workers would play touch football on the company grass plot about one hundred yards from the plant. This particular recreation had not been expressly authorized, but was permitted by the company's acquiescence over a period of three months during which the safety director was a spectator on at least two occasions. At no time did he or any other official of Mack Trucks, Inc. interfere with, or object to the football game.

As a condition of recovery it must be established under the circumstances of each case that the injury arose 'out of and in the course of' employment. Md.Code, Art. 101, § 15. The words 'out of' refer to the cause or origin of the accident, while the phrase 'in the course of' refers to the time, place and circumstances under which it occurred. Coates v. J. M. Bucheimer Co., Inc., 242 Md. 198, 201, 218 A.2d 191. ¹

We may restrict our inquiry by eliminating uncontested factors. The 'origin' or 'cause' of the injury was a third party who blocked appellee during the football game known to and not prohibited by the employer. The activity occurred on free time allowed the employee during the hours he was required to be on premises and was on company property. Under these circumstances, all of the prerequisite conditions of recovery have been met save one. We must decide whether the activity is sufficiently work-related to be an incident of employment.

In 1966 the Court of Appeals first determined that when an employer encouraged, authorized and underwrote the costs of recreational activities the work-related criterion was met. Sica v. Retail Credit Co., 245 Md. 606, 227 A.2d 33. The employee there was injured at a company picnic when he drove off a piling into shallow water and broke his neck. Recognizing that each case must be decided on its particular circumstances, the Court gave great weight to the 'substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale common to all kinds of recreation and social life.' Sica, supra, at 618, 227 A.2d at 40.

We find it difficult to distinguish a recreational activity encouraged during free time (a Saturday picnic once a year) in Sica from a far shorter free time recreational period provided during each working day (a 15 minute 'coffee-break'). Sica was encouraged to take advantage of the relaxation and recreation and to socialize with fellow employees, although not necessarily expressly encouraged to swim or play ball. So indeed Miller was encouraged if not required to avail himself of the free time provided, and although not encouraged to play touch football, was permitted to do so with the employer's knowledge over a period of at least three months. Not only do the employer's actual knowledge and acquiescence establish the recreational activity as an 'incident of employment,' but the period over which it had persisted would, itself, permit that inference. 1 Larson's Workmen's Compensation, § 22.12; citing Moore's Case, 330 Mass. 1, 110 N.E.2d 764, analyzed and relied upon in...