Theberge v. Pub. Serv. Electric & Gas Co.

• Citation: 51 A.2d 248
• Decision Date: 03 February 1947
• Docket Number: No. A-20000.,A-20000.
• Parties: THEBERGE v. PUBLIC SERVICE ELECTRIC & GAS CO.
• Court: New Jersey Department of Labor-Workmen's Compensation Bureau

51 A.2d 248

THEBERGE

v.PUBLIC SERVICE ELECTRIC & GAS CO.

No. A-20000.

New Jersey Department of Labor, Workmen's Compensation Bureau.

Feb. 3, 1947.

Proceeding under the Workmen's Compensation Act by Eva Marie Theberge, claimant, opposed by Public Service Electric & Gas Company, employer of claimant's deceased husband.

Petition dismissed.

Herman M. Wilson, of Newark, for petitioner.

Carl T. Friggens and David M. Sellick, both of Newark, for respondent.

WAGNER, Deputy Commissioner.

A formal petition was filed in the above-entitled matter claiming compensation by virtue of the provisions of R.S. 34:15 et seq., N.J.S.A. An answer was duly filed by the respondent. The matter came on for hearing before this Court at Newark, New Jersey, on the 18th day of January, 1947.

At the start of trial it was stipulated and agreed by and between counsel that the Court should first determine the question of liability before any witnesses were brought in to testify on the question of causal relationship between the accident and the death of decedent. Petitioner claimed that the accident arose out of and in the course of decedent's employment, which the respondent denied. There was little dispute on the factual situation at the close of trial on the liability phase of the case. The main dispute was as to whether the facts showed a compensable case under our law.

The respondent, a public utility corporation, owned a gas plant and office at 1025 McCarter Highway, Newark, New Jersey, where and from which employees worked who took care of the distribution of illuminating gas from the gas plant to respondent's customers. Across McCarter Highway directly to the east were additional buildings and an auto parking yard or court also owned by respondent. The auto parking yard was only about 85 feet square; was fenced abutting McCarter Highway, and paved with asphalt. It was used for storage of some of respondent's 50 or 60 trucks and autos when the vehicles were not in use. Due to the nature of respondent's business, vehicles moved in and out of the yard at all hours, and there was a gasoline pump located in same to take care of fueling the vehicles. On April 30, 1946, during the noon lunch period, a game of baseball was started by some of the employees. This game consisted of the batter hitting the ball after which the various players engaged in the sport would field it and throw and catch the ball among themselves before returning it to the batter. Neither the respondent nor the players provided any bases or base lines and there was no base running. This game was being played during the employees' noon lunch period as stated, and the decedent, George Theberge, participated in the sport during his lunch period for which he was not paid by the respondent. He was free to spend his lunch period as he chose and the matter of staying on the premises or leaving them was his free personal choice. Theberge had been playing about ten minutes when one of the other players threw the ball to him, and after catching it he twisted and fell, fracturing his right leg. He was taken to a hospital where he died on May 12, 1946. Theberge was employed by the respondent as a gas regulator man and his duties consisted of the regulation of gas devices and painting gas holders at the gas plant and in the territory served by the respondent. He was not hired or employed as a ball player and the matter of an employee's ball playing ability was not considered on his hire or discharge. The ball playing was started by the employees with their own equipment during their leisure time in the noon lunch period and the game was open to any one who cared to participate. Across the street to the north of the office and about the same distance from same as the auto parking yard, there was a City Park and it had been the practice of some of the employees to play ball in either the City Park or auto parking yard for the past 3 to 10 years during spring and summer lunch periods. The number playing varied from 2 to 10 men, and whether the ball playing started at all, or in the City Park or garage yard was a matter of chance and choice exercised by the employees. The employer kept no record of what the men did on their leisure time, and the method and means of spending this time was left to the individual employee.

Some employees of the gas plant had voluntarily formed an athletic and social ‘association’ among themselves which, among other things, participated in sports activities with other Public Service units. This group of employees financed itself from membership dues, purchased equipment with no financial aid from the employer and elected its own officers free...