McKenzie v. Brixite Mfg. Co.

• Decision Date: 24 May 1960
• Docket Number: No. A--120,A--120
• Citation: 61 N.J.Super. 461,161 A.2d 276
• Parties: John McKENZIE, Petitioner-Respondent, v. BRIXITE MANUFACTURING CO., Respondent-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 461

61 N.J.Super. 461

161 A.2d 276

John McKENZIE, Petitioner-Respondent, v. BRIXITE MANUFACTURING CO., Respondent-Appellant.

No. A--120.

Superior Court of New Jersey Appellate Division.

Argued Feb. 16, 1960.

Decided May 24, 1960.

Isidor Kalisch, Newark, argued the cause for respondent-appellant.

Fred Feinberg, Jersey City, argued the cause for petitioner-respondent (Solomon B. Borsky, Jersey City, attorney).

Before Judges PRICE, SULLIVAN and FOLEY.

The opinion of the court was delivered by

FOLEY, J.A.D.

Petitioner was awarded a judgment in the Workmen's Compensation Division which was affirmed by the County Court. Respondent appeals.

McKenzie was employed by the respondent as a 'granule mixer.' He testified that on May 14, 1957, as he was passing a fellow employee, Walter Johnson, who was engaged in scraping hot asphalt from a bucket, he touched Johnson on the shoulder whereupon Johnson turned about and struck him on the right forearm with the result that the hot scraper burned him. The version of the affair offered by respondent was quite different. Johnson testified as follows:

'Q. Do you remember a happening involving yourself and Mr. John McKenzie? A. I beg your pardon?

'Q. Do you remember something happening this day between yourself and Mr. John McKenzie? A. Well, there was no kind of words or nothing.

'The Deputy Director: Do you remember this happening?

'The Witness: Yes, I remember.

'Q. Will you please tell us about it?

'The Deputy Director: What happened?

'The Witness: I don't know exactly what date it was on or not. But at the time we were working, and I went and got a bucket of asphalt. I had poured the asphalt in the tank, and Mr. McKenzie came by--

'Mr. Feinberg: Who?

'The Witness: Mr. McKenzie; John McKenzie; and as I was scraping the bucket out of the asphalt, he came by and goosed me.

'And I swung around with the scraper and hit it on his hand.

'Q. Did he touch you on the shoulder, Mr. Johnson? A. No, not on the shoulder. I don't know nothing about it.

'The Deputy Director: Stand up and show me exactly where he goosed you?

'The Witness: Right here (indicating).

'The Deputy Director: Turn around. I can't see it from there. Show me where?

'The Witness: Right here (indicating).

'The Deputy Director: He now points to the mid-buttock area, where the anus is located.'

John Miller, another employee, testified:

'Q. Mr. Miller, do you remember the incident occurring on approximately May 14th, 1957 involving Mr. Johnson and Mr. McKenzie? A. Say that again, please?

'Q. Do you remember something happening involving Mr. McKenzie and Mr. Johnson in about May of 1957; May 14th? A. No, I don't.

'Q. Do you remember when Mr. McKenzie was burned on the arm. A.

'Mr. Feinberg: I object, if your

'8mr. Feinberg: I object, if your Honor please.

'The Deputy Director? Well, that has been testified to. I will allow it.

'Q. Would you please tell us what happened? A. Well, the way I seen it, they was running a corner line, so Mr. Johnson went and got a bucket of asphalt, and that asphalt is hot. He got the asphalt and brought it back, poured the asphalt in the tank.

'When he emptied the bucket, there was some left in the bucket, and he was scraping it out, and as Mr. Johnson was bent over scraping out the bucket, this Mr. McKenzie walked up behind him and goosed him; and Walter just throwed his arm around and hit him with the hot asphalt. I saw all that.'

Robert Schaab, assistant plant superintendent, testified:

'Q. Did Mr. McKenzie tell you himself what had happened at that time? A. After he came back to work. This was after he had been released by the Doctor.

'Q. Yes. A. (Continuing) He told me that in passing by Walter Johnson he had touched him. And knowing Johnson and McKenzie I--

'Q. No, no. You can only testify to what he told you. A. I see. Well, I asked John McKenzie whether, instead of touching him, whether he had actually goosed Mr. Johnson, and he said, 'yes'.

'Q. He admitted that to you? A. Yes.

'The Deputy Director: Exactly what did you ask him? What was the language you used?

'The Witness: Well, this is quite some time ago, but--

'Q. As near as you can remember. A. Well, very likely I said, 'John, are you sure you were not kibitzing around? Are you sure you just touched him passing by, or did you goose him?'

'That is very likely what I would have said.

'Mr. Feinberg: All right.

'The Witness: And at that time he admitted that he had goosed him.'

Both lower tribunals found as a fact that the incident was as described by Johnson and Miller and our independent examination of the record leads us to the same conclusion. We are also satisfied from the testimony of Johnson and Schaab that the sportive act involved was a common practice in various parts of the plant and that many employees participated in it from time to time. Moreover, we are convinced that the management was aware of the existence of the practice and took no measures to terminate it. However, there was no evidence that this activity was ever indulged in at the particular place of the happening here involved or at any other place in the plant where the type of work performed or the materials used by the employees were likely to endanger the safety of either a victim or an instigator of the skylarking described. The only testimony bearing on this subject came from Schaab:

'Q. Now, you say, 'knowing Mr. McKenzie and Mr. Johnson'; what did you mean by that? A. Well, they are equally ticklish and goosy, and it is something that unfortunately you can't stop. They goose back and forth.

'Q. In other words, there is quite a lot of goosing going on back and forth; is that right? A. Well, they spend their time working. It is my job to see that they put in a day's work.

'They don't spend eight hours a day goosing one another.

'Q. But occasionally they would? A. They would.

'Q. And you tolerate that as part of the normal manner of people engaging in work? A. It happens all over, I'm afraid.

'Q. And you knew that this was happening; is that correct? A. That's right.

'Q. Now, sir--A. (Continuing) I will say this: Whenever we run this corner operation, Walter Johnson works that same spot. He works at a large storage tank; a thirty-five hundred gallon storage tank, and draws a bucket of hot asphalt. Every man on the job knows that Walter Johnson is goosy; but when he is playing with a bucket of hot asphalt they stay far away from him.'

Initially it is argued that the petitioner's claim is barred by the provisions of N.J.S.A. 34:15--7.1, L.1956, c. 141, p. 579, § 9, which reads:

'An accident to an employee causing his injury or death, suffered while engaged in his employment but resulting from horseplay or skylarking on the part of a fellow employee, not instigated or taken part in by the employee who suffers the accident, shall be construed to have arisen out of and in the course of the employment of such employee and shall be compensable under the act hereby supplemented accordingly.'

In support of this contention respondent maintains that the granting of compensation for injuries suffered by a nonparticipant in skylarking evinces an intention of the Legislature to debar instigators or participants in skylarking from the benefits of the Workmen's Compensation Act in All such cases. We cannot agree. The fact that the act is remedial social legislation to be construed liberally is so well recognized as to require no citation of authority. From the time of its adoption the legislative policy consistently has been to broaden rather than to restrict the coverage of the act; and the flow of judicial interpretation of the act has ever been in the same direction. Thus an intent to exclude a class of persons from its coverage unless explicitly stated should not be assumed. The plain wording of the statute, as above set forth, emphasizes an intent to rectify the injustice of withholding compensation from the innocent victim of the sportive act of another (as was the case in Hulley v. Moosbrugger, 88 N.J.L. 161, 95 A. 1007, L.R.A.1916C, 1203 (E. & A. 1915)), whether or not such act was a part of a common practice of which the employer knew or should have known. See Budrevie v. Wright Aeronautical Corp., 135 N.J.L. 46, 50 A.2d 147 (Sup.Ct.1946), affirmed 136 N.J.L. 198, 55 A.2d 10 (E. & A. 1947). Although the Supreme Court, in citing these cases in Secor v. Penn Service Garage, 19 N.J. 315, 320, 117 A.2d 12, 15 (1955), observed that the 'great weight of authority is now to the contrary' of these holdings, the cases had nonetheless not been repudiated at the time L.1956, c. 141, § 9, was adopted. Hence it is evident that it was this state of the law which the Legislature desired to change. But it does not follow that the Legislature intended also to foreclose a participant in skylarking from any rights he might be found to have in the light of the facts of his particular case. We think, therefore, that the failure to include the instigator or participant within the amnesty granted by L.1956, c. 141, § 9, is indicative of a legislative intention that such persons were to be left In statu quo, neither gaining nor losing by this legislative supplement. However, it cannot be denied that the enactment displays a legislative policy of distinguishing between victim and participant in or instigator of skylarking by placing the rights of the victim on a footing separate and apart from that occupied by the participant or instigator.

In both the Division and the County Court reliance was placed on the holdings in Martin v. Snuffy's Steak House, 46 N.J.Super. 425, 134 A.2d 789, 796 (App.Div.1957), and Secor v. Penn Service Garage, supra, as authority for the decisions therein reached.

In the Martin case petitioner, a waitress, was in verbal disagreement with respondent's chef Over the performance of their respective duties. In the course of the dispute thus generated, the chef abused petitioner by the use of loud, profane and indecent language. Her...