For the petitioner-defendant in certiorari, Pesin & Pesin (Meyer Pesin, of counsel, on the brief).
For the respondent-plaintiff in certiorari, Wall, Haight, Carey & Hartpence (Edward J. O'Mara, of counsel).
Before Brogan, Chief Justice, and Justices Donges and Perskie.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The writ brings up for review a judgment of the Pleas in a compensation case. The question presented is whether the employee's injury by accident (which is conceded) arose out of and in the course of his employment. The Deputy Commissioner in the Bureau held that at the time of the accident the petitioner had "deviated from his assigned employment;" that the injury occurred when petitioner was acting in "disobedience of orders" or from an act which he performed for his own amusement. The conclusion was that the petitioner's injuries did not arise out of and in the course of his employment. The petition was dismissed. The Pleas, disagreeing in toto with the Bureau's conclusions,
reversed the judgment and awarded compensation. The nature of the question makes necessary a rather full exposition of the facts.
The petitioner, Robert T. Miller, was employed by the Mueller Company, a manufacturer of macaroni, as a "tray boy" whose duty it was to load trays of macaroni onto a truck. This, generally, was the character of the service performed by him for the first four months of his employment. During that time he learned to operate certain machines in use in the plant but in so doing it was not pursuant to any express instruction of the employer. It seems that the petitioner at the time was not old enough -- he was still less than eighteen years of age -- to work on a machine that carried moving parts. He testified nonetheless that the foreman said it would be "all right" for him to learn to operate a machine and that he actually worked on a machine as a helper to the knowledge of his foreman. He further said that he operated a machine from time to time alone when the regular operator was absent and that he worked on what were known as the "small style macaroni presses" by direction of the foreman; that he worked at other machines to the foreman's knowledge and without objection. His injury resulted from having his fingers caught in a "roller" which, as we understand it, is a machine with moving parts, auxiliary to one called the "kneader." Petitioner further testified that he worked on a kneading machine for two months during the incapacity of its regular operator by assignment of the foreman, Eggeling. This service was in May and June, 1943. He was injured in November of the same year. After June he was employed as a "utility man" helping in one department or another and, as he put it, he "relieved on the macaroni presses" and "now and then on a kneader." All of this, so he said, on the foreman's instructions. He helped as a "relief" in the operation of these several machines from time to time without being told to do so, his statement being "when I was walking about on my spare time or my relief, well, I would go over and help the fellow out if he was behind;" that it was a practice in the plant to relieve or help out others. At or about the time of his injury and for about three weeks prior thereto
his particular duty was the washing of walls in the plant. This assignment was during the "slow season" when production was "ahead of schedule." At such periods all the machines are not operated and the opportunity is taken to clean the machines. On the day of the injury we find it to be the fact that Miller's assigned job was to wash walls. His task at the time placed him in the immediate vicinity of a kneading machine and the roller on which he was injured. Petitioner had finished washing the wall and describes his subsequent actions in the following words: "After I was done on my job I got down off the ladder and I was going to go down to the back, down to the toilet. Well, I stood over by the kneader. There was a small piece of dough lying on top of the table where the rollers are. Well, I started pushing this piece of dough through the rollers. I kept putting it through a few times. Well, I would say I was on there about five minutes. * * * There was one fellow on the machine. * * * I didn't talk to him at all. * * * His name was Bobby Trapp. He came over to me and asked me: 'Will you give me a hand I am behind in my work?' You see the machine calls for two men but it was slow at that time. There was only one man on the job, but he had the work piling up on him besides the work he was doing. Well, it was about a minute after he said that I was getting a piece of dough out between the rollers while it was in motion and I don't know, I am not sure whether somebody called me or I turned my head, while I was getting this piece of dough out of the rollers, but I wasn't looking and my fingers got caught. I turned my head away from the machine and they got caught just as soon as I turned my head away from the machine because I had my both hands in there, * * * holding on to the piece of dough that the rollers were getting out. After catching them I shut the machine off and I pulled them out." As a result of this happening petitioner lost his left index and middle finger by amputation.
On cross-examination it appeared that he had worked at washing walls for about two weeks before the accident; that the day before the accident he had been taken off the washing job by the ...