Robertson v. Express Container Corp.

• Citation: 26 N.J.Super. 274,97 A.2d 693
• Decision Date: 12 June 1953
• Docket Number: No. A--276,A--276
• Parties: ROBERTSON v. EXPRESS CONTAINER CORP.
• Court: New Jersey Superior Court — Appellate Division

Page 274

26 N.J.Super. 274

97 A.2d 693

ROBERTSON v. EXPRESS CONTAINER CORP.

No. A--276.

Superior Court of New Jersey Appellate Division.

Argued May 25, 1953.

Decided June 12, 1953.

Alexander Avidan, Newark, for petitioner-appellant (Avidan & Avidan, Newwark, and Abraham Levine, Jersey City, attorneys).

Sidney M. Schreiber, Newark, for defendant-respondent (McKeown, Schreiber, Lancaster & Demos, Newark, attorneys; Roger F. Lancaster, Newark, on the brief).

Before Judges EASTWOOD, BIGELOW and JAYNE.

On appeal from the Essex County Court wherein Judge NAUGHRIGHT filed the following opinion:

'The Division of Workmen's Compensation, Department of Labor and Industry, denied petitioner's claim for compensation for injuries she suffered from an accident that occurred on July 10, 1951, on the ground that the accidental injuries suffered by petitioner did not arise out of and in the course of her employment. From this decision the petitioner appeals.

'There is little dispute as to the facts, they are as follows:

'Petitioner has been employed by the respondent for the past several years as a cleaning woman. Her job was to clean the second-floor offices of the respondent company. She came to work at 4:30 P.M. and would stay until 11 P.M., taking time off during this period to eat her lunch. The office force would usually leave at 5 P.M. and petitioner was pretty much on her own. She received little, if any, supervision in her work; she ate lunch when and where she wished and could take as much time for it as she desired.

'When petitioner began working for respondent she was furnished cleaning equipment and a closet to store it in. This closet was located in the area of the offices. Petitioner continued to use the closet for storing the equipment for about a year, when some of the office staff complained of a damp smell and petitioner, believing the cleaning mops may be causing it, commenced storing her cleaning equipment on the roof of respondent's premises which could be reached via a door in the office area.

'Respondent is engaged in the manufacturing business and it would be well at this point to describe the premises in question. The offices that petitioner cleans are on the second floor of its plant. The section of the plant immediately adjoining the offices is one story in height. A door leads from the offices to the roof of the one-story section. The one-story section is divided into different heights, so that going through the previously mentioned door one may reach three different sections of different heights of roof covering the same building. There are ladders to assist in ascending or descending to the different heights of the roof.

'On the day in question petitioner had commenced her cleaning duties as usual, and at about 7 P.M. went out on the roof to eat her lunch. It was her custom to do so during the summer months. This was done without either the approval or disapproval of respondent and, so far as we have been able to determine from the testimony, without his knowledge.

'A few days before the day in question there was a propane fire at Port Newark. Petitioner desiring to see if there was still smoke coming from this fire which was some distance away, left the first section of the roof and climbed the ladder to the next height or second section of the roof. While on the second section petitioner desired to go to the next elevation or third section of the roof. While walking toward the ladder to reach this third elevation she walked on a glass section of the roof. She fell through this glass section a distance of some 30 feet to the floor below.

'Petitioner candidly admits that her only motive in wanting to see if the fire was still smoking was to satisfy her curiosity.

'It is admitted that petitioner is an employee of the respondent and that she met with an injury caused by an accident. To warrant a recovery it must appear that the accident (a) arose out of, and (b) in the course of her employment. The pertinent part of our workmen's compensation act was first construed in Bryant v. Fissell, 84 N.J.L. 72, 86 A. 458, 459 (Sup.Ct.1913), wherein the court said,

"Even if there be an accident which occurred 'in the course of' the employment, if it did not arise 'out of the employment,' there can be no recovery; and even though there be an accident which arose 'out of the employment,' if it did not arise 'in the course of the employment,' there can be no recovery. * * * 'For an accident to arise out of and in the course of the employment, it must result from a risk reasonably incidental to the employment. As was said by Mr. Lord Justice Buckley in Fitzgerald v. Clarke & Son (1908), 2 K.B. 796. 'The words 'out of' point, I think, to the origin and cause of the accident; the words 'in the course of' to the time, place and circumstances under which the accident takes place. The former words are descriptive of the character or quality of the accident. The latter words relate to the circumstances under which an accident of that character or quality takes place. The character or quality of the accident as conveyed by the words 'out of' involves, I think, the idea that the accident is in some sense due to the employment. It must be an accident resulting from a risk reasonably incident to the employment.'

"We conclude, therefore, that an accident arises 'in the course of the employment' if it occurs while the employe is doing that a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time.'

'The test set forth in the Bryant case, supra, was used in Bolos v. Trenton Fire Clay and Porcelain Company, 102 N.J.L. 479, 133 A. 764 (Sup.Ct.1926), wherein the petitioner was awarded compensation on account of the death of her husband. The facts of that case were as follows: At the regular lunch time the decedent left his employer's truck, on which he was a helper, at the brick shed on his employer's premises, and ate his lunch at the barn, also on the premises. When the whistle blew for him to resume work at the termination of the noon recess, he started for his truck. Observing another of his employer's trucks starting from the vicinity of the barn and going to the brick shed, he jumped upon its running board. To get to the brick shed it was necessary for the truck to travel about 600 feet, in part over a public street abutting and paralleling a part of the premises. In turning back from the street into the premises the decedent was thrown from the truck and killed.

'The court in determining that the accident arose out of and in the course of decedent's employment, stated that decedent was rightly in the barn and that his method of returning to the brick shed was reasonable.

'In the case presented to us we are squarely faced with the question of whether petitioner on the second elevation of the roof, at the point where the ladder leads to the third section of the roof and where the accident occurred, was rightly at that position.

'The Bryant case, supra, and the Bolos case, supra, were both cited in Bubis v. Flockhardt Foundry Co., 119 N.J.L. 136, 194 A. 781 (Sup.Ct., 1937), affirmed in 120 N.J.L. 177, 198 A. 851 (E. & A.1938). In that case petitioner and his fellow employees who worked in an unheated building were accustomed to build fires in crude stoves for their comfort, and on the morning of the accident, petitioner, thinking the fire in the stove had gone out, poured gasoline in it preparatory to kindling a new fire. There were embers still burning in the bottom of the stove, however, which caused a flare-up of the gasoline, and petitioner was badly burned. The court in awarding petitioner compensation quoted from 71 C.J. 672, 'The injuries of an employee incurred in protecting himself from cold have been held to arise out of and in the course of employment.'

'In Waskevitz v. Clifton Paper Board Co., 7 N.J.Super. 1, 71 A.2d 646, 647 (App.Div. 1950), certification denied 4 N.J. 561, 73 A.2d 365 (1950), the Superior Court, Appellate Division, presented with a set of facts that contained elements of both the Bolos case, supra, and the Bubis case, supra, allowing compensation, stated:

'The courts have held that the employee's performance of acts of personal comfort may be reasonably incident to the employment and have sustained awards for accidents occurring while the employee was obtaining a smoke or a breath of fresh air. * * * Indeed, they have recognized that, in the light of the modern labor-management relationship, the employer's furnishing of facilities to the employee for such relaxation during the work day might well be considered as designed for their mutual benefit rather than the exclusive benefit of the employee. * * *'

'Appellant contends that the Waskevitz case, supra, is analogous to his case, and that in fact the Waskevitz case goes further than the case before us now. We disagree with appellant. In the Waskevitz case the deceased was employed in a room that was hot and humid. In view of the unpleasant working conditions the employees would customarily go to 'drop off' doors leading to the outside for the purpose of having a smoke and obtaining a breath of fresh air. There was no objection by the employer to this practice. It was while decedent was going to have a smoke and breath of fresh air that he met his death.

'In the case before us we do not have the petitioner obtaining relief from any unpleasant working conditions. Though conceivably she may go out on the first section of the roof for a breath of fresh air and to eat her lunch, her only motive in climbing to the higher sections of the roof was to see a fire, or the smoke therefrom. She was not doing an act with either the express or even tacit approval of her employer.

'This court is aware that employees have received compensation for injuries caused by accident while the employee was engaged in some act of curiosity. In Bethlehem Steel...