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Tocci v. Tessler & Weiss Inc.

Decided: January 20, 1959.

EDWARD TOCCI, PLAINTIFF-APPELLANT,
v.
TESSLER & WEISS, INC., DEFENDANT-RESPONDENT



For reversal -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis and Proctor. For affirmance -- Justices Heher and Wachenfeld. The opinion of the court was delivered by Jacobs, J. Heher, J. (dissenting).

Jacobs

The Division of Workmen's Compensation dismissed the plaintiff's claim petition and its action was sustained by the Union County Court. Thereupon the plaintiff appealed to the Appellate Division and we certified his appeal on our own motion.

In 1948 the plaintiff Edward Tocci was employed as a jeweler by the respondent Tessler & Weiss, Inc., which then conducted its jewelry manufacturing business in a factory loft at 9-11 Franklin Street, Newark. In 1953 the respondent moved its business to its new plant which had been constructed on a large plot of ground located at 2389 Vaux Hall Road, Union. The plaintiff reported to the Union plant upon the completion of his two-week vacation period in July 1953. His work was the making of engagement rings and his working hours were from 7:30 A.M. to 4:15 P.M., with luncheon from 12 noon to 12:45 P.M. The plaintiff and the other employees were at liberty to have their luncheon at the plant premises or at any place which was close enough to enable them to return to work on time. For about two weeks after the plaintiff began work at the Union plant he and some of the other employees went to Biertuempfel Field during their luncheon period. Mr. Fred Tessler, described as one of the proprietors, used to come down to the field with the employees, who generally engaged in a softball

game until their return to the plant. The plaintiff testified that when he and the other employees noticed that the grassy area in back of the parking lot at the company's plant was being cut, they assumed it was for their use and they thereupon transferred their luncheon activities, including their softball game, to the plant premises. In August 1953 and thereafter the plaintiff and many other employees customarily ate their lunch and played softball daily, weather permitting, at the plant premises.

Although the softball game never took on any formal league aspects, it did furnish a recreational outlet with intracompany competition. The employees laid out the diamond in accordance with recognized regulations and set up "intershop games, the toolmakers against the jewelers"; the plaintiff expressed the view that the company benefited insofar as "the game itself made better friends of the men themselves, a better understanding with each other instead of one crowd hanging by itself, they were brought out to the field and brought in there through playing ball and they get along better." He testified that the company "supplied bats and balls for the soft ball team" and that the team scores of the "inter-shop matches" were posted inside the plant building "right over the time clock." Mr. Burke, an employee at the company's Union plant, testified that he thought that a recreational luncheon activity such as the softball game would be an aid towards better labor-management relationship, that he approached Mr. Weiss, one of the plant "owners," and asked whether he would approve the idea of "furnishing baseballs and bats," and that Mr. Weiss said he would. Mr. Burke also testified that he talked to Mr. Weiss about having a backstop made and that Mr. Weiss asked him to find out "what the necessary cost would be for having that put up, and he said he would do it." Neither Mr. Weiss nor Mr. Tessler nor any other witness was called by the respondent to refute or limit the foregoing testimony or the normal inferences to be drawn therefrom.

On October 10, 1956 the plaintiff was at the plant premises during the luncheon hour and was preparing to

engage in an inter-shop softball game. During his warm-up he attempted to backhand a flyball, lost his balance, fell and fractured his left clavicle. Thereafter, he filed his claim petition for compensation in the Division; at the close of the testimony the Deputy Director dismissed the petition upon the finding that the plaintiff was "willfully negligent" and had not established that he had suffered a compensable injury. It is clear that the Deputy Director's finding that the negligence of the plaintiff constituted a ground for barring his claim for compensation was erroneous (see Secor v. Penn Service Garage, 19 N.J. 315, 317 (1955); Belyus v. Wilkinson, Gaddis & Co., 115 N.J.L. 43, 49 (Sup. Ct. 1935), affirmed 116 N.J.L. 92 (E. & A. 1936)), and in the County Court the respondent did not seek to sustain the dismissal of the petition on that ground. However, it did prevail in the County Court on its contention that the plaintiff had not suffered an accident which arose "out of and in the course of his employment," within the contemplation of the statute. R.S. 34:15-7.

The Workmen's Compensation Act is humane social legislation designed to place the cost of work-connected injury upon the employer who may readily provide for it as an operating expense. It sets forth 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 where the injury or death is intentionally self-inflicted or when intoxication is the natural and proximate cause of the injury. R.S. 34:15-7. Shortly after passage of the act, Justice Trenchard noted, in Bryant v. Fissell, 84 N.J.L. 72, 77 (Sup. Ct. 1913), that an accident arises out of the employment if it results from a risk "reasonably incidental" thereto 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." And more recently, in Belyus v. Wilkinson, Gaddis & Co., supra, Justice Heher similarly noted that an accident arises out of the employment when

the risk is "reasonably incident" to it and arises in the course of the employment when it occurs within its period at a place where the employee may properly be and while he is fulfilling the duties of his employment "or doing something incidental to it." The continued sweeping generality of the statutory language and its judicial definition suggest the conscientious endeavor to maintain a liberally just line between those accidental injuries which may be said to have had some work connection and those which may be said to have been unrelated to the employment. In drawing that line the courts have not rested on any legalistic formula but have sought to apply the comprehensive legislative compensation plan fairly and justly to the particular facts presented. See Green v. DeFuria, 19 N.J. 290 (1955); Gargiulo v. Gargiulo, 13 N.J. 8 (1953); Saintsing v. Steinbach Company, 1 N.J. Super. 259 (App. Div. 1949), affirmed 2 N.J. 304 (1949). Cf. Stout v. Sterling Aluminum Products Co., 213 S.W. 2 d 244, 246 (Mo. Ct. App. 1948):

"There are many attempted definitions in the various cases of the meaning of the words 'arising out of and in the course of his employment,' but there is not, and in the very nature of things cannot be, any set formula that applies in all cases, and therefore every case involving the application of that requirement must be decided upon its own particular facts and circumstances and not by reference to some formula."

The plaintiff's injury occurred while he was engaged at the respondent's premises in a customary luncheon hour recreational activity which the respondent not only permitted but also encouraged by supplying the necessary equipment. Consequently, we need not here concern ourselves with judicial precedents where the recreational activity was not at the employer's premises or was not customary or was not encouraged by the employer. See Konrad v. Anheuser-Busch, Inc., 48 N.J. Super. 386 (Cty. Ct. 1958); Padula v. Royal Plating & Polishing Co., 14 N.J. Super. 603 (Cty. Ct. 1951); Hydro-Line Mfg. Co. v. Industrial Commission, 15 Ill. 2 d 156, 154 N.E. 2 d 234

(Sup. Ct. 1958); Wilson v. General Motors Corporation, 298 N.Y. 468, 84 N.E. 2 d 781 (Ct. App. 1949). Cf. Theberge v. Public Service Electric and Gas Co., 25 N.J. Misc. 149 (Workmen's Comp. Bd. 1947); Leventhal v. Wright Aeronautical Corp., 25 N.J. Misc. 154 (Workmen's Comp. Bd. 1946); Porowski v. American Can Co., 15 N.J. Misc. 316 (Workmen's Comp. Bd. 1937). Nor need we concern ourselves with the fact that the plaintiff was not making engagement rings when he was injured, for the law is soundly established in our State and elsewhere to the effect that an employee is not to be deprived of the benefits of the Compensation Act simply because he was not actually working when the accident occurred. Thus he may have stopped work for a coffee break or to have a smoke or to get some fresh air or to use the telephone or to satisfy other human needs incidental to his being at his place of employment; it is no longer disputed that he is generally entitled to compensation for an accidental injury which occurs during such interval. See Crotty v. Driver Harris Co., 49 N.J. Super. 60, 69 (App. Div. 1958); Buerkle v. United Parcel ...


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