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Secor v. Penn Service Garage

Decided: September 27, 1955.

NORMAN G. SECOR, PLAINTIFF-RESPONDENT,
v.
PENN SERVICE GARAGE, DEFENDANT-APPELLANT



For affirmance -- Justices Heher, Wachenfeld, Jacobs and Brennan. For reversal -- Chief Justice Vanderbilt, and Justices Oliphant and Burling. The opinion of the court was delivered by Jacobs, J.

Jacobs

The Appellate Division, in an opinion reported at 35 N.J. Super. 59 (1955), reinstated an award to the employee under the Workmen's Compensation Act. There having been a dissent in the Appellate Division, the employer appealed to this court as of right under R.R. 1:2-1.

The plaintiff Norman G. Secor was employed as a garage attendant by the respondent Penn Service Garage. He was 22 years of age, was hired on Friday, May 1, 1953, and was severely injured on Monday, May 4, 1953. His duties included the parking of automobiles and the selling of gasoline. While he was filling a customer's gas tank, the gasoline overflowed and splashed onto his right sleeve and left trouser leg. Bernard F. Berkowitz, one of the partners doing business as Penn Service Garage, asked him to come into the office and "change his uniform into dry clothes." Secor and Berkowitz went into the office and Berkowitz showed Secor where the uniforms were and "told him that since he had gasoline on him it's very dangerous" and that he would be "very happy" if Secor changed his trousers.

Berkowitz testified that at that point Secor, saying "he wasn't afraid of that stuff," took a book of matches out, lit one with his right hand, put it close to his left leg, and instantaneously was in flames. Secor tetified that Berkowitz had told him to change his clothes, that he and Berkowitz had gone into the office and Berkowitz had told him where to get some clean clothes, and that he lit a match and "was going to reach for a cigarette" in his shirt pocket when his clothes burst into flames. He acknowledged that he had told Berkowitz that he was not "afraid of the gasoline" but he denied that he held the match close to his leg.

In due course Secor filed a petition for compensation alleging that he was severely burned and that his injury was by accident arising out of and in the course of his employment. The answer of Penn Service Garage admitted that Secor was in its employ on May 4, 1953 and "that an occurrence took place in which the petitioner was injured"; it asserted, however, that the injury was not compensable under the New Jersey Workmen's Compensation Act in that the injury sustained was "'intentionally self-inflicted' and it is therefore denying compensation pursuant to R.S. 34:15-7." The Deputy Director in the Division of Workmen's Compensation, after hearing the parties, rendered an award in the petitioner's favor. He made no determination as to whether the petitioner was actually about to light a cigarette or whether his act was an impulsive one designed to impress his employer with his lack of personal fear or the absence of any real need for changing clothes. He did, however, find that the petitioner's injury was not caused by the intentional lighting of his clothes and that it was not intentionally self-inflicted within the meaning of R.S. 34:15-7. This finding was clearly sound under the evidence and the controlling authorities; indeed it was not questioned by the employer either in the Appellate Division or in this court. See Belyus v. Wilkinson, Gaddis & Co., 115 N.J.L. 43, 49 (Sup. Ct. 1935), affirmed 116 N.J.L. 92 (E. & A. 1936). Cf. 1 Larson, Workmen's Compensation Law (1952), 453, 509. [19 NJ Page 318] On the employer's appeal to the County Court the award in the employee's favor was reversed. The County Court found that, although the injury was not intentionally self-inflicted and was conceded by the employer to have arisen "out of the employment," it had not arisen "in the course of the employment." In reaching its conclusion it expressly rejected the employee's story that he was about to light a cigarette. In the Appellate Division the County Court's action was set aside and the award rendered by the Workmen's Compensation Division was reinstated. Judge Clapp's opinion pointed out that the charge of intentional self-infliction of the injury had been withdrawn and that in view of the employer's concession in the County Court and the direction of the argument in the Appellate Division, it was unnecessary to deal at any length with the question of whether the injury arose "out of the employment." He first noted that the presence of gasoline on the plaintiff's clothes was attributable to his work and contributed, at least in part, to his injury. See Cierpial v. Ford Motor Co., 16 N.J. 561, 566 (1954); Gargiulo v. Gargiulo, 13 N.J. 8, 13 (1953); Spindler v. Universal Chain Corp., 11 N.J. 34, 39 (1952); Sanders v. Jarka Corp., 1 N.J. 36, 41 (1948). Cf. Green v. DeFuria, 19 N.J. 290, 296 (1955). He then considered whether, under the employer's version of the incident, the injury occurred in the "course of the employment" and concluded that it did, citing the doctrine, seemingly approved in the recent opinion of Justice Oliphant in Robertson v. Express Container Corp., 13 N.J. 342, 347 (1953), that while a "deliberate and conscious" deviation by the employee will serve to remove him from the course of his employment within the contemplation of the Compensation Act, a "momentary or impulsive" act representing an insubstantial deviation will not serve to do so. Cf. Larson, supra, 369, where the author states that the modern decisions tend to support the suggestion that "if the deviation be trifling and momentary it should be disregarded." On its appeal to this court the appellant attacks the soundness of the views expressed by the Appellate Division and

urges (1) that the plaintiff did not establish the essentials of his compensation claim by "a preponderance of the evidence" and (2) that the testimony established that his injury was sustained "by actions committed by him not in the course of his employment."

The Workmen's Compensation Act is remedial social legislation designed to place the costs of accidental injuries which are work-connected upon employers who may readily provide for them as operating expenses. It provides broadly that compensation shall be paid for death or injury by accident arising out of and in the course of the employment "in all cases except when the injury or death is intentionally self-inflicted, or when intoxication is the natural and proximate cause of injury." R.S. 34:15-7. The common law concept of liability based on fault is nowhere mentioned in the act and has no proper place in its administration; on the contrary the act is to be liberally applied as a compensation statute intended to protect employees in the event of work-related injuries notwithstanding their own negligent or even foolhardy conduct. See Green v. DeFuria, supra, where Justice Wachenfeld, in sustaining an award to an employee who left his place of employment to silence an annoying automobile horn, aptly remarked that it was "fundamental in the workmen's compensation law that the negligence or even the foolishness of the employee does not bar recovery when it is short of intentional or willful misconduct. N.J.S.A. 34:15-7." Similarly the act nowhere either in terms or purpose, embodies the common law concept of proximate causation; on the contrary it is enough if the employment is a contributory cause. See Sanders v. Jarka Corp., supra, where this court in sustaining an award based on a criminal assault stated flatly that the employment "need not be the sole or proximate cause of the injury" and that the statutory requirement is met if the employment is "a contributing cause to the accident" or "a necessary factor" leading to it. See also Gargiulo v. Gargiulo, supra, extensively discussed in Larson, The Legal Aspects of Causation in Workmen's

Compensation, 8 Rutgers L. Rev. 423 (1954). Cf. Newell v. Moreau, 94 N.H. 439, 55 A. 2 d 476 (1947); State Compensation Ins. Fund v. Industrial Acc. Comm'n, 38 Cal. 2 d 659, 242 P. 2 d 311 (1952); Petro v. Martin Baking Co., 239 Minn. 307, 58 N.W. 2 d 731 (1953).

The statutory phrase "by accident arising out of and in the course of his employment" has no strict common law counterpart and courts have defined and applied it with varying liberality. In the oft-cited case of Bryant v. Fissell, 84 N.J.L. 72, 77 (Sup. Ct. 1913), Justice Trenchard, in sustaining an award to an injured workman, stated that a compensable accident results "from a risk reasonably incidental to the employment" and that an accident arises in the course of the employment "if it occurs while the employe is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time." See Miller v. Bill Miller's Riviera, Inc., 21 N.J. Super. 112, 116 (App. Div. 1952); Schultz v. Henry V. Vaughans Sons & Co., 24 N.J. Super. 492, 498 (Cty. Ct. 1953). In Belyus v. Wilkinson, Gaddis & Co., supra, Justice Heher noted that an accident arises out of the employment when the risk is "reasonably incident" thereto, and arises in the course of the employment when it occurs within the period of the employment at a place where the employee may reasonably be and while he is reasonably fulfilling the duties of the employment "or doing something incidental to it." See Larson, supra, 193. Notwithstanding the sweep of these judicial definitions, the court in Hulley v. Moosbrugger, 88 N.J.L. 161, 169 (E. & A. 1915), denied a compensation award to a non-participating victim of horse-play on the ground that his ...


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