Rosenberg v. Biboni & Co.

• Decision Date: 26 August 1947
• Parties: ROSENBERG v. BIBONI & CO.
• Court: New Jersey Court of Common Pleas

54 A.2d 659

ROSENBERG

v.BIBONI & CO.

Court of Common Pleas of New Jersey, Essex County.

Aug. 26, 1947.

Appeal from Workmen's Compensation Bureau.

Proceeding under the Workmen's Compensation Act by Harry Rosenberg, claimant, opposed by Biboni & Company, employer. From an award of compensation by the Workmen's Compensation Bureau, the employer appeals.

Reversed.

Rothbard, Harris & Oxfeld and Henry Harris, all of Newark, for petitioner-appellee.

Edward G. Gerardo, of Orange, for respondent-appellant.

HARTSHORNE, Judge.

Petitioner, Harry Rosenberg, was employed as a sewing machine operator by respondent-appellant, Biboni and Co. In addition to using sewing machines, the company's business required the use of a pressing machine. January 21, 1946, just before returning to work after luncheon, Rosenberg started pressing his own trousers on this pressing machine. He then injured his right thumb, for which he was awarded compensation in the Bureau, the present appeal lying from such award.

The additional salient facts are that many of the employees on numerous occasions, to the knowledge of the employer, had used this pressing machine for personal purposes. This was not done by the employer's express permission, certainly not by his authority, but rather, D'Addario, the supervisor, simply looked the other way to avoid any altercation. There is no evidence that Rosenberg's pressing of his own trousers, or in fact the trousers, themselves, had the slightest connection with his employer's business.

Petitioner-appellee nevertheless contends that this pressing of his own trousers, which in the absence of evidence to the contrary, must therefore be taken to be for his own personal use, was incidental to his employment, and therefore arose out of and in the course of the employment, because of the fact that the employer did not stop him and the other employees from using this pressing machine for their personal purposes on various occasions. As sustaining his position, he cites a number of cases, mostly from other jurisdictions, quoting the principle that, ‘An injury sustained by an employee while engaged in the performance of an act essential to his personal comfort and convenience is compensable as ‘arising out of’ and ‘in the course of the employment.’' 71 C.J. 669. He further cites the following text from 1 Honnold, Workmen's Compensation, 381: ‘Acts of ministration by a servant to himself such as quenching a thirst, relieving his hunger, protecting himself from excessive cold, performance of which while at work are reasonably necessary to his health and comfort, are incidents to his employment and acts of service therein within the Workmen's Compensation acts, though they are only indirectly conductive to the purpose of the employment. Consequently, no break in the employment is caused by the mere fact that the workman is ministering to his personal comforts or necessities, as by warming himself, or seeking shelter, or by leaving his work to relieve nature, or to procure a drink, refreshments, food, or fresh air, or to rest in the shade.’ Bubis v. Flockhart Foundry, 191 A. 281, 15 N.J.Misc. 299, 301.

But the latter citation, with which the New Jersey cases and the authorities generally are fully in accord, clearly indicates that the employee, while employed, may not do anything he likes for his ‘personal comfort and convenience,’ and still claim to be acting within the sphere of his employment. These acts must be ‘essential’ thereto, in order that he may maintain his health and properly perform the duties for which he is being paid. Such is the rationale of the New Jersey decisions, holding that acts done by the employee in connection with taking lunch, warming himself, answering a call of nature, and changing his clothes and cleaning up after work, since they are all essential for the preservation of the employee's health, and the proper performance of his duties as a healthy employee, are acts incidental to his employment, so that injuries arising therefrom are compensable. Terlecki v. Strauss, 85 N.J.L. 454, 89 A. 1023, affirmed Err. & App., 86 N.J.L. 708, 92 A. 1087; Taylor v. 110 S. Penna. Ave. Corp., 117 N.J.L. 346, 188 A. 689; Flanagan v. Green & Son, 121 N.J.L. 327, 2 A.2d 180, affirmed Err. & App., 122 N.J.L. 424, 5 A.2d 742; Hanna v. Erie R. Co., 152 A. 179, 8 N.J.Misc. 829; Bubis v. Flockhart Foundry, supra.

By definition, therefore, where an act is done by the employee for his personal comfort and convenience, which is not reasonably essential for his health and conducive to the proper conduct of his work, but is merely for his own accommodation or advantage, without any connection with his work,...