Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d. Jayne, J.A.D. (dissenting).
The petitioner in this workmen's compensation case was allowed compensation in the Division; the County Court reversed, and he now appeals to us.
Petitioner, an attendant at a garage, was injured on his second day on the job. While putting gasoline in a car, the gasoline, due to air in the tank, gushed out over his trousers and right sleeve. Respondent (in the main we accept respondent's account of the incident) told him to change his uniform; and accordingly petitioner went into the office, he says, for that purpose.
There respondent showed him where the dry uniforms were kept, and speaking of the danger of gasoline (the employee was 23 years of age), repeated himself, saying "I'd be very happy if [you] changed [your] trousers." Perhaps in mock bravado, petitioner replied "he wasn't afraid of that stuff" (gasoline). Taking out a book of paper matches, he lit one, and holding it with his right hand, put it near his left knee. His clothes caught fire, and he was injured.
According to respondent, petitioner put the flaming match two to three inches (according to petitioner, it was one foot) from his knee. It may be that radiation from its heat would not reach a distance of two inches to the side, and that in fact his right sleeve, being above the flame, was ignited first. But we need not stop on this. On the appeal respondent does
not charge petitioner with the intentional infliction of injuries on himself. N.J.S.A. 34:15-7; cf. Restatement of Torts § 13(d); 31 C.J.S., Evidence , § 135, p. 772.
Nor (in view of the direction of the argument here) should much attention be given to the question whether petitioner's accident arose "out of * * * his employment" (N.J.S.A. 34:15-7). It has been said repeatedly that if the employment is a contributory cause, the accident arises out of it; it need not be the proximate or the primary cause, so long as it is a necessary factor. Sanders v. Jarka Corp. , 1 N.J. 36 (1948); Spindler v. Universal Chain Corp. , 11 N.J. 34, 39 (1952); Gargiulo v. Gargiulo , 13 N.J. 8, 13 (1953); Cierpial v. Ford Motor Co. , 16 N.J. 561, 566 (1954). The gasoline on petitioner's clothes was one of the causes contributing to the accident, a necessary factor thereto, and it follows that the accident arose out of the employment.
As held in Gargiulo v. Gargiulo, supra (where an employee was injured by an arrow shot by a boy in the neighborhood), the question is not whether the accident was foreseeable, but whether it has its origin, at least in part, in a condition connected with the employment. If such is its origin, an accident is compensable even though the immediate moving force is some entirely voluntary act, uncalled for by the employment -- such as the shooting of the arrow, or an assault on the employee, a truck driver, by another truck driver as a result of a collision of their trucks in the course of the employment. Sanders v. Jarka Corp., supra.
We do not pass upon the question whether some foolish action of the employee, unwanted by the employer, yet springing from human propensities or "human behavior as we find it" (Giracelli v. Franklin Cleaners & Dyers, Inc. , 132 N.J.L. 590 (Sup. Ct. 1945)) on the job, can be said to arise out of the employment merely because it constitutes a by-product inherent in the employment of men. Here the accident arises not only from such propensities, but from one of the conditions of the employment, which was planted therein by the employer, namely, the presence of the gasoline.
But this is not the case in which to continue on with this interesting inquiry. The respondent conceded in the County Court that the accident arose out of the employment, and it did not dispute the point on the argument here. On the contrary, in its brief it seems to say that the instant matter involves merely the application of settled notions as to the "course of * * * employment," as those notions are defined in Bryant, Adm'x., v. Fissell , 84 N.J.L. 72 (Sup. Ct. 1913).
To be within the course of employment, the accident must arise, not only within a certain period of time and at a place petitioner may reasonably be during that period, but also in the course of an activity reasonably a part of the conditions of the employment. We are concerned here, not ...