Price, Sullivan and Foley. The opinion of the court was delivered by Foley, J.A.D.
This is a workmen's compensation case. Respondent appeals from a judgment of the County Court affirming an award in the Workmen's Compensation Division. The issue is whether the petitioner suffered an accident arising out of and in the course of his employment. R.S. 34:15-7.
We have examined the entire record and the views expressed in the tribunals below and, in reaching our independent determination, have given due regard to the opportunity of the hearer of the evidence to have judged the credibility of the witnesses in accordance with the mandate of Russo v. United States Trucking Corp. , 26 N.J. 430 (1958).
Respondent was in the business of processing materials such as masonite and metal. This entailed the use of machinery for cutting, perforating and allied purposes. Petitioner had been in the employ of the respondent for approximately one year and ten months prior to the happening of the accident which forms the basis of this suit.
On January 17, 1958, shortly after 7:30 A.M., petitioner, during working hours, interrupted his assigned duties to ask a co-worker, McAllister, to perforate a piece of scrap masonite for him, admittedly intending to take it home for his personal use. McAllister, the operator of the press which was used in the perforating process, was then engaged in applying grease to the rollers at the back of his machine. In response to petitioner's request McAllister laconically told petitioner to do it himself and continued with his work. Petitioner went to the opposite side of the machine and inserted the piece of scrap in the front rollers. He then returned to the back of the machine to receive it as it came through the back rollers. Evidently the piece of material was not long enough to come in contact with these rollers and the petitioner put his hand in the machine in an effort to pull the material through. In doing so his hand became caught in the device and was severely injured.
Petitioner and two other employees testified that it was a common practice in the plant for employees to appropriate scrap materials to their own use with the knowledge of respondent's supervisory personnel. It may be inferred from the nature of the scrap that management realized that if this material was to be effectively utilized by the employees for their personal use, it would be necessary for them to use respondent's machinery because of the unlikelihood that the employees themselves would possess the necessary equipment. In any event there was testimony by the above-mentioned witnesses that the machinery was utilized by the employees for this purpose in full view of representatives of management and without objection. It appears also that while petitioner had not previously operated this particular machine (except during his trial period as a press operator concerning which we shall presently comment) he had on several occasions in the presence of his foreman cut or perforated scrap metal for his own purposes on a shearing machine, and had at times, when this machine was idle, cut metal for the employer's purposes. In overall view the picture presented by the evidence is one of indiscriminate use by the employees, whether machine operators or not, of the respondent's machinery to adapt scrap to the employees' personal projects with the acquiescence of respondent's supervisory personnel. This picture is highlighted by the fact that although, as noted, petitioner and the two other employees who testified in his behalf unequivocally stated that this practice was carried on under the eyes of respondent's foreman, none of the latter class of employees was called by respondent to refute the charge.
As the case is presented to us the thesis of the respondent is that the accident resulted from a purely personal act, in itself a violation and disobedience of an order to refrain from the use of the machine, and constituted an abandonment or deviation from the ambit and sphere of petitioner's employment. To support this position stress is laid on the fact that when petitioner entered respondent's
service he was put to work as a "press operator" on the same machine which brought him to his injury or one similar to it, but that two weeks later he was given a job as a "material handler," his duties then consisting in bringing materials to various machines and in removing scrap or sludge which fell to the floor. Petitioner stated that the reason for the change was that he did not want to "work shift work." Respondent claims that it came about because petitioner did not qualify as a press operator and that petitioner knew this to be the fact. Accepting for present purposes respondent's version, we are not impressed by the argument that petitioner's use of the machine in these circumstances constituted "disobedience" of an "order." The defense of disobedience presupposes the existence of specific instructions designed primarily, if not exclusively, for the safety of the employees, of which the petitioner had actual notice. Also even where such disobedience occurs recovery is not barred if the deviation does not amount to an unreasonable breach of the employer-employee relationship. Green v. De Furia , 19 N.J. 290, 298 (1955).
Plainly in the case sub judice management's assignment of petitioner to other duties, of itself, did not spell out a specific order that petitioner should not use the machine, since obviously the work reassignment may have been inspired by any number of considerations apart from management's concern for the safety of petitioner. For instance, it is at least equally inferable that the transfer to other work was motivated by the employer's conclusion that petitioner's work productivity on the press operation was substandard, and thus unprofitable to the employer, or that he was less valuable to the employer as a press operator than others who were available for this work.
We therefore find that the transfer of petitioner from press operation to other duties almost two years prior to the date of the accident did not establish or even tend to ...