Wilson v. Gen. Motors Corp.

• Decision Date: 03 March 1949
• Parties: WILSON v. GENERAL MOTORS CORPORATION et al.
• Court: New York Court of Appeals Court of Appeals

298 N.Y. 468

84 N.E.2d 781

WILSON

v.GENERAL MOTORS CORPORATION et al.

Court of Appeals of New York.

March 3, 1949.

Appeal from Supreme Court, Appellate Division, Third Judicial Department.

Proceeding under the Workmen's Compensation Law by Charles A. Wilson, claimant, opposed by General Motors Corporation, Chevrolet Motor and Axle Division, employer, to recover compensation for injuries sustained by claimant while playing in a softball game. From order of the Appellate Division of the Supreme Court in third judicial department, 272 App.Div. 845, 70 N.Y.S.2d 109, which unanimously affirmed award of the Workmen's Compensation Board, the employer appealed by permission of the Court of Appeals. Reargument of the appeal was ordered by the Court of Appeals, 298 N.Y. 850, 84 N.E.2d 151.

Order of Appellate Division and decision of Workmen's Compensation Board reversed, and claim dismissed.

CONWAY, LEWIS and DYE, JJ., dissenting. Edward L. Robinson, Jr., William M. Fay and Solon J. Stone, all of Buffalo, for appellants.

Winton H. Church, of Buffalo, for respondent Charles A. Wilson.

Nathaniel L. Goldstein, Atty. Gen. (Daniel Polansky and Roy Wiedersum, both of New York City, of counsel), for respondent Workmen's Compensation Board.

FULD, Judge.

Injured in a play at first base in a softball game between teams made up of employees of General Motors Corporation, claimant sought and was awarded compensation benefits. On application of the selfinsured employer, we granted leave to appeal from the affirmance of that award by the Appellate Division so that we might consider whether an injury suffered by an employee voluntarily participating in an athletic or other recreational activity, under the circumstances here disclosed, is properly compensable as one ‘arising out of and in the course of’ his employment.

Claimant, forty-five years old, was employed as a clerk in the patrol office of General Motors which, at the time of the accident, was engaged in the manufacture of aircraft engines. Upon their own initiative, without suggestion or encouragement from the management, the employees had organized a baseball league consisting of fourteen teams. The games were played on the employees' own time in a public park many miles from the employer's plant, and the players had to provide their own transportation to and from the park. Not only were the employees not paid for time spent on the baseball field, but their wages were, indeed, actually subject to deduction if they were late for work after playing or practicing. All organizational details and all arrangements affecting the games were handled by the employees. They procured the equipment gloves, bats and balls and selected the uniforms, bearing the letters ‘M. & A.’ (signifying Motor and Axle Division), although it appears that the employer paid for the equipment and permitted conferences relating to the contests on company time and on the company's premises. The games were not advertised in any way, and no outside publicity whatsoever attended their playing.

The determination made by the Workmen's Compensation Board that ‘claimant's participation in playing baseball * * * was incidental to his employment’, was based upon findings that ‘the employer promoted the organization of departmental baseball teams and encouraged the participation of its employees in athletic activities' and that ‘the resulting better employer-employee relationship exercised a stimulating influence upon the work activity of the participant employee through such recreational facilities.’ The board, in holding the injury compensable, and the Appellate Division, in affirming that body's decision, relied specifically upon the evidence that the employer had paid for the equipment and had permitted conferences relating to the games to be held on company time, and that its nurse, following claimant's injury, had given him heat treatments.

The Workmen's Compensation Law, Consol.Laws, c. 67, has been broadly construed, and properly so, to embrace all activities which can, in any reasonable sense, be included within its coverage. See Matter of Industrial Com'r (Siguin) v. McCarthy, 295 N.Y. 443, 446-447, 68 N.E.2d 434, 435-436. Liberally though we would now apply it, however, we cannot stretch the statute's ‘broad and remedial purpose’ the phrase urged upon us to cover a case such as this. By its very provisions, the statute permits compensation awards only for those injuries ‘arising out of and in the course of’ employment. Workmen's Compensation Law, s 10; see Matter of Ognibene v. Rochester Mfg. Co., 298 N.Y. 85, 80 N.E.2d 749;Matter of Gaurin v. Bagley & Sewall Co., 298 N.Y. 511, 80 N.E.2d 660;Matter of Martin v. Plaut, 293 N.Y. 617, 618, 59 N.E.2d 429, 158 A.L.R. 603.

Though section 21 of the Workmen's Compensation Law creates a presumption ‘in the absence of substantial evidence to the contrary’ that the claim for compensation ‘comes within the (statute's) provision’, it is a ‘limited presumption’. Matter of Magna (State Industrial Board v. Hegeman Harris Co.), 258 N.Y. 82, 85, 179 N.E. 266, 267. It has no bearing here, for it cannot be used as a substitute for actual proof that the injury arose out of and in the course of the employment. See Matter of Dyviniek v. Buffalo Courier Express Co., 296 N.Y. 361, 364, 73 N.E.2d 552; see, also, Matter of Daus v. Gunderman & Sons, 283 N.Y. 459, 465-466, 28 N.E.2d 914, 917-918;Matter of Lorchitsky v. Gotham Folding Box Co., 230 N.Y. 8, 12, 128 N.E. 899, 900. In truth, the presumption has no place in any case once the facts are fully developed; of necessity, it fails in the presence of contrary evidence. See Matter of Magna (State Industrial Board v. Hegeman Harris Co.), supra, 258 N.Y. at page 84, 179 N.E. at page. 266. The presumption, then, is inapplicable and inoperative in this case, and consideration of the record constrains us to conclude that the determination under review lacks evidentiary support.

These ball games, the record makes plain, were out-of-hours, off-the-premises, personal diversions of the men, and were not only optional with the employees but were exclusively for their own recreation and indulgence, without business advantage to the employer. The games were neither initiated nor sponsored by the employer, in no way connected with its affairs, and in no manner subject to its control. Even if the company had so desired, it could not have halted the ballplaying or changed the program in any way. In other words, totally lacking is any basis for an inference that it controlled the activity or sought to compel or induce any employee to participate in it. On the contrary, indication almost positive that the activity was separate and removed from the employment is found in the fact that the employer actually penalized employees who, as a result of playing or practicing, reported late for work. Neither the circumstance that management gave its permission to employees to take part in the sport, nor even that it co-operated in the program, can be said to spell out compulsion or constraint, and no evidence on that score is supplied by testimony that a foreman once remarked that a particular game might have been won had claimant been playing. And, as indicated, we look in vain for evidence of any business advantage or benefit accruing to the company from the employees' participation in the contests. Too tenuous and ephemeral is the possibility that such participation might perhaps indirectly benefit the employer by improving the workers' morale or health or by fostering employee good will.

Personal activities of employees, unrelated to the employment, remote from the place of work and its risk, not compelled or controlled by the employer, yielding it neither advantage nor benefit, are not within the compass of the Workmen's Compensation Law. Nor is it of any operative consequence that the employer acquiesced in, or contributed some financial aid to, such activities. The slight support thus given by the employer, without attendant advertising or consequent business advantage, should be accepted for what it really was, a gratuitous contribution to its employees' social and recreational life. See, e. g., Matter of Rubinstein v. Madison House Soc., 239 App.Div. 867, 264 N.Y.S. 982,Clark v. Chrysler Corp., 276 Mish. 24, 29, 267 N.W. 589;Pate v. Plymouth Mfg. Co., 198 S.C. 159, 162, 17 S.E.2d 146. In a case such as the one before us, the granting of a compensation award would not only do violence to the letter of the statute but would offend against its spirit, by penalizing employers who, without prospect of profit or benefit, co-operate in enabling their employees to engage in social or athletic recreation on their own time and away from the company premises.

The conclusion thus reached impreses us as sound, the reasoning upon which it is based convincing, and, accordingly, we need not the authority or support which decisions from other States may furnish. However, it is of some consequence that every court that has passed upon the subject has likewise concluded that participation in a baseball game, under circumstances such as those here presented, cannot be considered an incident of employment. See Industrial Comm. v. Murphy, 102 Colo. 59, 76 P.2d 741, 115 A.L.R. 990;Leventhal v. Wright Aeronautical Corp., 51 A.2d 237, 25 N.J.Misc. 154;Poroski v. American Can Co., 191 A. 296, 15 N.J.Misc. 316;Pate v. Plymouth Mfg. Co., 198 S.C. 159, 17 S.E.2d 146, supra; State Young Men's Christian Ass'n v. Industrial Comm., 235 Wis. 161, 292 N.W. 324; cf. Clark v. Chrysler Corp., 276 Mich. 24, 267 N.W. 589, supra; Auerbach Co. v. Industrial Comm., Utah, 195 P.2d 245.

In Pate v. Plymouth Mfg. Co., supra, the employer likewise gave financial assistance to a baseball team formed by its employees. Holding that an accidental injury suffered by an employee was not compensable, the court wrote that “There is no evidence that the mill exercised or attempted to...