McKenzie v. Brixite Mfg. Co.

• Decision Date: 10 January 1961
• Docket Number: No. A--41,A--41
• Parties: John McKENZIE, Petitioner-Appellant, v. BRIXITE MANUFACTURING CO., Respondent.
• Court: New Jersey Supreme Court

Page 1

34 N.J. 1

166 A.2d 753

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

No. A--41.

Supreme Court of New Jersey.

Argued Nov. 7, 1960.

Decided Jan. 10, 1961.

Fred Feinberg, Jersey City, for petitioner-appellant (Solomon B. Borsky, Jersey City, attorney; Fred Feinberg of counsel).

Isidor Kalisch, Newark, for respondent.

The opinion of the court was delivered by

SCHETTINO, J.

This is a workmen's compensation appeal.

The basic question is did petitioner's injury arise out of and in the course of the employment within the meaning of the Workmen's Compensation Act. R.S. 34:15--7 et seq., N.J.S.A. The Division of Workmen's Compensation and the County Court held that it did. The Appellate Division, by a split vote, held that it did not. 61 N.J.Super. 461, 161 A.2d 276 (1960). Petitioner appeals as a matter of right. R.R. 1:2--1.

As we view the record, the following facts are clearly established. Petitioner, on May 14, 1957, was in the employ of respondent as a granule mixer. A co-worker, Johnson, was engaged in scraping an empty barrel when petitioner walked by and playfully touched Johnson between his buttocks. The touching caused Johnson to turn suddenly, raise his arms impulsively and strike petitioner with a hot scraper causing the injury. Respondent was aware that such sportive touchings were common between these two employees as well as between other employees.

The issues are (1) Does customary horseplay add to the risk of employment, (2) Was the particular act momentary and impulsive and an inconsequential deviation from the course of the petitioner's employment; (3) Does N.J.S.A. 34:15--7.1 bar recovery by an aggressor-participant in skylarking incidents, and (4) Was the award of the attorney's fee by the County Court for services rendered on appeal excessive.

In Tocci v. Tessler & Weiss, Inc., 28 N.J. 582, 147 A.2d 783, 786 (1959), the court reviewed in detail the history of the judicial interpretation of the statutory words 'out of and in the course of' the employment and concluded that the facts of each particular case must be examined and determination then made of whether the subject accident was 'work-connected' or whether such accident was 'unrelated' to the employment. It emphasized the liberal view taken by our courts in cases involving the 'out of and in the course of' provision of our statute beginning with the rule laid down in Bryant v. Fissell, 84 N.J.L. 72, 86 A. 458 (Sup.Ct.1913), wherein it was held that an accident arises out of the employment if it results from a risk 'reasonably incidental' thereto.

The history of skylarking in the compensation field has been intriguing. Hulley v. Moosbrugger, 88 N.J.L. 161, 95 A. 1007, 1008, L.R.A.1916C, 1203 (E. & A. 1915), denied recovery to an employee who was injured and died when he tried to dodge a fellow employee's playful swing of an arm on the theory that the accident did not arise 'out of the employment'. The court held that the employer was not charged with the duty to see that none of his employees assaulted any other of them, either willfully or sportively. Such a holding was in line with the strict-construction approach to the workmen's compensation cases immediately after the enactment. See Cole v. I. Lewis Cigar Mfg. Co., 3 N.J. 9, 16, 68 A.2d 737 (1949). But within three years thereafter our courts began to chip away at the Hulley ruling. In Mountain Ice Co. v. McNeil, 91 N.J.L. 528, 103 A. 184, L.R.A. 1918E, 494 (E. & A. 1918), the court, although denying recovery, implied that it would have awarded compensation if the employer countenanced or permitted the Specific skylarking. This theory was referred to with approval in Staubach v. Cities Service Oil Co., 126 N.J.L. 479, 482--483, 19 A.2d 882, 884. (Sup.Ct.1941), certiorari denied 127 N.J.L. 577, 24 A.2d 193 (Sup.Ct.1942), affirmed 130 N.J.L. 157, 31 A.2d 804 (E. & A. 1943). There, an employee was fatally injured when another employee sportively threw gasoline used in the work operations on him. The court pointed out that had the employer had knowledge of the sportive activity, the injury would be a 'natural incident of the work' and would be held to arise out of and in the course of employment. Accord, Greene v. Watson Flagg Mach. Co., 25 N.J.Misc. 146, 51 A.2d 121 (Dept. of Labor 1947).

The next logical step was approached in Secor v. Penn Service Garage, 19 N.J. 315, 117 A.2d 12 (1955). There a garage attendant splashed gasoline on himself while servicing a car. His employer directed him to change into a clean uniform as gasoline soaked clothes were very dangerous. The employee struck a match near his clothes and the clothes instantly went up in flames resulting in severe injuries to himself. The court stated that, even if the employee committed the act foolishly and in a spirit of 'mock bravado,' he was entitled to compensation for (19 N.J. at p. 324, 117 A.2d at p. 16):

'An employee is not an automaton, and, even when he is highly efficient, he will to some extent deviate from the uninterrupted performance of his work. Such deviation, if it be considered minor in the light of the particular time, place and circumstances, is realistically viewed by both the employer and the employee as a normal incidence of the employment relation and ought not in this day be viewed as legally breaching the course thereof. Fulfillment of the high purposes of our socially important and ever broadening Workmen's Compensation Act suggests this approach and nothing in the statutory terms dictates any narrower position.'

Mr. Justice Jacobs in that case noted that, although Hulley denied compensation, 'the trend has been toward allowing compensation even to participating employees where their deviations may be said to be minor and attributable to normal human tendencies which men do not wholly shed simply because they are at work.' (19 N.J. at pp. 320--321, 117 A.2d at p. 15).

Other jurisdictions have wrestled with this problem. In Anderson & Kerr v. State Industrial Comm., 155 Okl. 137, 7 P.2d 902 (Sup.Ct.1932), the court affirmed an award of compensation for an injury held to have arisen out of and in the course of employment. In that case an employee was waiting for an assignment of duties and reading a newspaper when the foreman picked up a sample sack and threw it at him. There followed about ten minutes of frolicking and playing between the employee and the foreman with two sacks during which petitioner grabbed both sacks and ran towards the foreman. The foreman, seeing a gun lying on a work bench, picked it up to scare petitioner and shot into the ground. The bullet glanced up and struck petitioner in the spine. The court grounded its decision on the fact that for some years scuffling and frolicking by employees for pastime and recreation had occurred to the knowledge of the employer so that it became an established custom.

In Maltais v. Equitable Life Assur. Soc., 93 N.H. 237, 40 A.2d 837 (Sup.Ct.1944), the employees of defendant's assured were accustomed, apparently with the employer's acquiescence, to clean their dusty work clothes with a compressed-air hose used by the employer in its business. Petitioner's decedent playfully used an air hose upon a fellow employee's clothes and hair. In turn the fellow employee took the air hose and played it upon decedent's clothes and body. Inadvertently, he fatally injured decedent when he applied the hose to decedent's rectum. The court held that such conduct did not destroy petitioner's right to recover for compensation under the Workmen's Compensation Act as decedent's acts did not constitute serious misconduct or come within any of the prohibited actions barring compensation. Petitioner's recovery was based upon the theory that the injury could be properly deemed one arising out of and in the course of the employment as the practice, known or chargeable to the knowledge of the employer, constituted a part of the conditions of the employment.

New York also permits recovery by participants where the skylarking is customary and within the knowledge of the employer. Ognibene v. Rochester Mfg. Co., 298 N.Y. 85, 80 N.E.2d 749 (Ct.App.1948); Industrial Comm'r v. McCarthy, 295 N.Y. 443, 68 N.E.2d 434 (Ct.App.1946). Also see discussion of recent cases and other authorities in 22 NACCA Law...