Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Jacobs, S.j.a.d.
This is an appeal from a judgment of the Monmouth County Court reversing an award by the Workmen's Compensation Bureau in favor of the petitioner-appellant.
On April 22, 1947, petitioner was in the defendant's employ at its department store in Asbury Park. Shortly prior thereto, the defendant's personnel director, after a meeting with representatives of other employers in the area, had proposed to its store manager that a vaccination service be made available to its employees to guard against a smallpox epidemic which had been threatened by several cases in New York City. The proposal was adopted, vaccine was purchased through the local Department of Health and a notice was distributed to the defendant's employees stating that, "On April 22, 1947, we will provide free innoculation to all those who choose to be immunized against smallpox. We are sure that everyone is aware of the current spread of smallpox and we strongly urge that you take advantage of this service, which we are glad to provide in the interest of your health."
Pursuant to this notice most of the employees, including the petitioner, were vaccinated and it is stipulated that the petitioner suffered a reaction which resulted in both temporary
and partial permanent disability. Petitioner's claim under the Workmen's Compensation Act was sustained in the Bureau which made the factual determination that she had "suffered an injury as a result of an accident which arose out of and in the course of her employment". The Bureau's award was reversed on October 15, 1948, by the Monmouth County Court and the petitioner appeals therefrom.
The defendant's personnel director testified that it was his responsibility to improve the employer-employee relationship, to promote morale and to create a happier environment for the employees. He acknowledged that although his activities pointed to additional employee privileges they were designed for and resulted in mutual benefits to employer and employee. Thus, the defendant has made available at its premises a cafeteria where food is served to employees at reduced prices and a medical clinic where they may receive treatment for incidental non-industrial ailments as well as industrial accidents. The personnel director further acknowledged that absenteeism disrupts orderly business and that it was in the employer's interest that measures be taken to reduce absences but stated that the vaccination program resulted in an expected rise in absenteeism, presumably of short duration. He stressed that the vaccination was not compulsory and pointed out that to emphasize its voluntary nature the employees were required to certify that the defendant would not be responsible for the results.
The issue as to whether a disability is compensable where it has resulted from an employee's vaccination on his employer's direction, has been passed upon in several cases. Thus, in Sanders v. Children's Aid Society , 238 App. Div. 746, 265 N.Y.S. 698, (1933), aff'd 262 N.Y. 655, 188 N.E. 107 (1933) all of the employees were given a diphtheria antitoxin and the claimant suffered a reaction which caused permanent disability. The court sustained an award in the claimant's favor finding that the unforeseen injury was the result of a compensable accident within its State Act. Similar holdings are found in Alewine v. Tobin Quarries , 206 So. Car. 103, 33 S.E. 2 d 81 (1945); Spicer Manufacturing Co. v. Tucker , 127 Ohio St. 421,
188 N.E. 870 (1934); Neudeck v. Ford Motor Company , 249 Mich. 690, 229 N.W. 438 (1930); and Texas Employers' Insurance Association v. Mitchell , 27 S.W. 2 d 600 (Texas Civ. App. 1930).
The more troublesome issue which arises where, as here, the employer has urged but not directed the vaccination, has likewise been dealt with by the courts. In Freedman v. Spicer Manufacturing Corp. , 97 N.J.L. 325 (E. & A. 1921) the employer, during the influenza epidemic of 1918, furnished a vaccine service at its plant to its employees and their families. The innoculations were voluntary but almost 900 of its 1200 employees submitted. Shortly following his innoculation the decedent employee fainted, fell and sustained a fractured skull from which he died. The Bureau denied compensation upon the finding that "it cannot be said that the said accident arose out of the employment, inasmuch as the acceptance of the innoculation was in no way compulsory or ordered by the company." The Court of Common Pleas' reversal of the Bureau's action was sustained first by the Supreme Court and then by the Court of Errors and Appeals. A similar result was reached in Smith v. Brown Paper Mill Co. , 152 So. 700 (La. 1934) where an employee's innoculation at the employer's plant against typhus resulted in permanent disability. The court, after stating that it was shown that the workmen were not "ordered or required" to take the innoculation, pointed out that, "the convenience of the facility and the posted notice constituted a suggestion, invitation and urge, calculated to induce an employee to submit to the treatment who might not otherwise have done so", and further that it could find no difference between the action of the employee in availing himself of the innoculation facility "and that of one using any other convenience furnished at the plant for the workmen." Cf. Taylor v. 110 South Pennsylvania Avenue Corp. , 117 N.J.L. 346 (Sup. Ct. 1936) and Flanagan v. Charles E. Green & Son , 121 N.J.L. 327 (Sup. Ct. 1938) aff'd 122 N.J.L. 424 (E. & A. 1939).
On the other hand, the Supreme Court of Connecticut, with Chief Justice Wheeler dissenting, in ...