Waskevitz v. Clifton Paper Bd. Co., A--148

• Decision Date: 01 March 1950
• Docket Number: No. A--148,A--148
• Citation: 71 A.2d 646,7 N.J.Super. 1
• Parties: WASKEVITZ v. CLIFTON PAPER BOARD CO.
• Court: New Jersey Superior Court — Appellate Division

Page 1

7 N.J.Super. 1

71 A.2d 646

WASKEVITZ v. CLIFTON PAPER BOARD CO.

No. A--148.

Superior Court of New Jersey

Appellate Division.

Argued Feb. 20, 1950.

Decided March 1, 1950.

Isidor Kalisch, Newark, argued the cause for the appellant (Stanley U. Phares, Elizabeth, attorney).

Isadore Rosenbloom, Paterson, argued the cause for the respondent (Marcus & Levy, Paterson, attorneys).

Before Judges JACOBS, McGEEHAN and EASTWOOD.

The opinion of the court was delivered by JACOBS, S.J.A.D.

This is an appeal from a judgment of the Passaic County Court sustaining an award for petitioner by the Workmen's Compensation Bureau.

The appellant operated a paper board manufacturing plant at Clifton, New Jersey. On the second floor of the plant there was a hyro-pulper containing hot water into which paper was dumped and churned to a pulp. The area surrounding the hydropulper was wet and the place was steamy with a stench from the churning pulp. On the first floor of the plant there was a breaker beater room which contained machines used in the processing of the pulp into paper board. This room 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. Although there were several such doors apparently the most popular one was located on the second floor not distant from the hydro-pulper. There was testimony that men from every department came to this door where they could smoke and talk without interfering with the work of other employees. There was no objection by the employer to this practice.

On February 17, 1948 the decedent John Waskevitz was assigned to work in the breaker beater room. After working for several hours in the hot humid room he went to the second floor and, while passing the hydro-pulper, accidentally fell in and was killed. Upon ample evidence both of the lower tribunals found that at the time of the accident he was on his way to the nearby door for a smoke and fresh air. The question presented is whether the circumstances justified their conclusion that the accident arose out of and in the course of the decedent's employment.

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. See Bradford's Case, 319 Mass. 621, 67 N.E.2d 149 (Sup.Jud.Ct.1946); Elliott v. Industrial Accident Commission, 21 Cal.2d 281, 131 P.2d 521, 144 A.L.R. 358 (Sup.Ct.1942); 1 Honnold, Workmen's Compensation (1917) § 111, p. 381. Cf. Bubis v. Flockhart Foundry Co., 191 A. 281, 15 N.J.Misc. 299 (W.C.B.1937) affirmed, 119 N.J.L. 136, 194 A. 781 (Sup.Ct.1937), 120 N.J.L. 177, 198 A. 851 (E. & A.1938). 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. See Kubera's Case, 320 Mass. 419, 69 N.E.2d 673 (Sup.Jud.Ct.1946). Cf. Saintsing v. Steinbach Co., 1 N.J.Super. 259, 263, 64 A.2d 99 (App.Div.1949) affirmed 2 N.J. 304, 66 A.2d 158 (1949).

The appellant contends, nevertheless, that the petitioner's award may not be sustained because the decedent had violated a restriction which had been imposed upon him, citing Reis v. Breeze Corporations, Inc., 129 N.J.L. 138, 143, 28 A.2d 304, 307 (Sup.Ct.1942) and authorities therein. In the Reis case the former Supreme Court sustained the denial of an award where the accident occurred while the employee was at a 'forbidden place not within the control of his employer' pointing out that where the employee remains within his sphere of...