Conford, Foley and Kilkenny. The opinion of the court was delivered by Foley, J.A.D. Conford, J.A.D. (dissenting).
This is a workmen's compensation case in which petitioner appeals from a judgment of the County Court affirming the Workmen's Compensation Division's dismissal of his claim petition.
The essential facts are not in dispute. On June 25, 1957 at about 6:30 P.M. Complitano, who was regularly employed by respondent as a fitters helper between the hours of 8:00
A.M. and 4:30 P.M., was injured while playing softball in the North Newark League on a team which purported to represent the company. The league was sponsored by the recreation department of the City of Newark. Petitioner seeks compensation for such injuries.
The history of the organization and development of the team is significant. It is entirely clear that the formation of the team and its admission into the league was initiated by the employees. In June 1957 their representative came to the respondent's personnel manager and requested that the company pay an entrance fee to the league and defray the cost of uniforms, consisting of a sweat shirt, sweat pants, shirt and jacket, and also of bats and balls. The personnel manager took up the matter with the company's vice-president who granted the request. The uniforms bore the legend "Steel & Alloy Tank Co." The total expenditures of the company in 1957 approximated $300. In 1955 the management had provided similar equipment also at the employees' solicitation. The field on which the games were played was two or three miles distant from respondent's plant. Respondent had no connection with the field nor with the selection or designation of it as the site upon which the league games were played. All of the games were played after working hours, and while they were open to the general public without charge for admission, except for two games played for charitable benefit, apparently a limited number of people attended them. Periodically the league standings were published in a local newspaper. The team played in the league for the years 1955 to 1957, inclusive, and won the league title in each of these years. As a reward the players each received a small trophy and the company was presented a large trophy which it displayed in the entrance hall of the company office. In connection with the winning of the title, the company, again at the behest of the employees, gave to each member of the team a ticket to attend the seventh game of the World Series played at the Yankee Stadium, and $10 to cover his expenses of the day.
Admittedly, the company left all details of the management of the team, such as the selection of players and the scheduling of games, to the employees. No control whatever was exercised over the team by management. Proficiency in the sport bore no relationship to hiring or to duration of employment. And there is no suggestion that management directly or indirectly coerced or influenced employees to play on the team. On one or two occasions the players were permitted to leave the plant shortly before the regular hour of closing, but beyond this the only company act in furtherance of the recreational activity consisted in its voluntary contribution at the employees' request of the entrance fee and cost of uniforms as hereinabove stated.
In considering the significance of the company's contribution of $300 to the enjoyment of the small group which benefited thereby, it is not amiss to note that the payroll of the plant was in excess of $20,000 per week. And in evaluating the weight of appellant's arguments, as they will be delineated hereinafter, the nature of respondent's industrial operation is of importance. Respondent was in the business of manufacturing storage tanks of various sizes which it sold to industry, as distinguished from individual members of the public.
The primary thesis of appellant is that he is entitled to a recovery because the recreational activity in which he was engaged at the time he was injured was of mutual benefit to his employer and to himself. The "mutual benefit doctrine" is enunciated in cases of which Du Charme v. Columbia Engineering Co. , 31 N.J. Super. 167 (App. Div. 1954) (injury sustained at Christmas party sponsored by employer); Harrison v. Stanton , 26 N.J. Super. 194 (App. Div. 1953), affirmed 14 N.J. 172 (1954) (employee injured in automobile accident while driving home a baby sitter hired by the employee to care for his children while he and his wife attended a social function in furtherance of the employer's business); Kelly v. Hackensack Water Co. , 10 N.J. Super. 528 (App. Div. 1950) (employee injured at outing
sponsored by employer); and Saintsing v. Steinbach Company , 1 N.J. Super. 259 (App. Div. 1949), affirmed 2 N.J. 304 (1949) (employee suffered ill effects of vaccination gratuitously provided by employer) are typical. In the cited cases the court found as a fact that the occasion on which the injury was suffered was of mutual benefit to the employer and the employee. It is noteworthy that each case was featured by the employer's encouragement of the employee to attend the social affair. Such encouragement might well have been interpreted by the employees as a command.
The most recent case in this jurisdiction treating with the problem of compensability of accidental injuries sustained in the course of recreational activity as an incident to the employment is Tocci v. Tessler & Weiss, Inc. , 28 N.J. 582 (1959). Tocci was injured while playing in a softball game on the employer's premises during the lunch period. The practice of using the premises for this purpose during this portion of the working day had existed for about three years with the knowledge and consent of the employer. Prior thereto the games had been played during the lunch recess at nearby Biertuempfel Field. The employee personnel was divided into two groups -- the jewelers and the toolmakers -- and the pattern of play involved inter-shop games between them. The petitioner testified without objection that the company benefited thereby because "the game itself made better friends of the men themselves, a better understanding with each other" and "through playing ball * * * they get along better." Another employee said that in asking one of the plant owners for baseballs and bats he had in mind that the recreational activity would be an aid toward better labor-management relations, and that the management acceded to his request and also promised to defray the cost of a backstop. The respondent called no witnesses to refute or limit the foregoing testimony or the normal inferences to be drawn therefrom. The court in holding Tocci to be entitled to an award said:
"When the employees first transferred their luncheon recreational activity to the employer's premises the company might have but did not order its discontinuance; on the contrary, it approved and encouraged its continuance and in so doing was presumably fully aware of the resultant benefits to itself in improving the morale of its employees, in having its employees close by so that they could readily resume their work on time, and in having its employees engage in their recreational activity on its own premises where it was in a position to exercise such supervision as it might consider appropriate. The sanctioned recreational activity at the employer's premises quickly became a customary one and was thereafter as incidental to the employment as was the luncheon itself or as would be a customary break for coffee or a cigarette or other permitted relaxation at the premises during the regular work day. The time, the place and the employer's encouragement of the activity, sufficiently bespeak its relation to the employment and the accidental injury which happened during its pursuit may fairly and justly be grouped with those occurrences which may be said to have had some work connection rather than with those which may be said to have been unrelated to the employment." 28 N.J. , at pp. 593-594 (Emphasis added)
In equating the legal import of Tocci to the case before us it is important to note that in Tocci the court observed:
"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)." 28 N.J. , at pp. 587-588.
The express reservation of the question of compensability of injuries sustained in recreational activity away from the employer's premises, after working hours, which the employer
does not encourage, and from which he receives no benefit, accents the general rule that in such circumstances the accident is not deemed to have been one arising out of and in the course of the employment. McFarland v. St. Louis Car Co. , 262 S.W. 2 d 344 (Mo. Ct. App. 1953); Wilson v. General Motors Corporation, supra; Auerbach Co. v. Industrial Comm. , 113 Utah 347, 195 P. 2 d 245 (Sup. Ct. 1948); Tom Joyce 7- Up Co. v. Layman , 112 Ind. App. 369, 44 N.E. 2 d 998 (App. Ct. 1942); Pate v. Plymouth Manufacturing Co. , 198 S.C. 159, 17 S.E. 2 d 146 (Sup. Ct. 1941); Industrial Comm. v. Murphy , 102 Colo. 59, 76 P. 2 d 741, 115 A.L.R. 990 (Sup. Ct. 1938). In this connection Larson comments:
"As to company athletic teams, the majority of cases still deny compensation for injuries sustained in connection with games played outside of hours and off the premises. The most prominent issues seem to be the extent of the employer's financial support, * * * and the extent of the employer's benefit, * * *."
And in concluding his discussion of this subject he says:
"to be within the course of employment, the activity must either take place on the premises at a time closely related to working hours, or involve some element of compulsion or concurrent benefit to the employer which marks it as an incident of the employment." 1 Larson, Workmen's Compensation Law , § 22.24, p. 337, and § 22.30, p. 342 (1952).
The leading case expounding this view, Wilson v. General Motors Corporation, supra , is discussed at length by Justice Heher in his dissenting opinion in Tocci, supra. Factually, it is in many respects the counterpart of the case at hand. There a group of employees, on their own initiative and without any suggestion by the employer, formed an intrashop baseball league consisting of 14 teams. Games were played in a public park some miles away from the plant. All organizational details and all arrangements affecting the games were handled by the employees. The player's sweaters were inscribed with the letters "M. & A." (signifying Motor
and Axle division). The employer paid for the equipment and permitted conferences relating to the contests, on company time and on the company's premises. There was no outside publicity or advertising. The claimant suffered a fractured leg when he collided with another player during a game.
The Workmen's Compensation Board allowed compensation, substantially for some of the reasons advanced by the appellant herein, namely, that claimant's participation in the activity was incidental to his employment; that the employer promoted the organization of the teams, encouraged the participation of its employees in the activity and, as a result, the employer gained the benefit of an improved employer-employee relationship and of the stimulating influence upon the work activity of the employees who participated in such recreation. In reversing, the Court of Appeals held:
"Personal activities of employees, unrelated to the employment, remote from the place of work and its risk, not compelled or controlled by the employer, yielding it neither advantage nor benefit, are not within the compass of the Workmen's Compensation Law. Nor is it of any operative consequence that the employer acquiesced in, or contributed some financial aid to, such activities. The slight support thus given by the employer, without attendant advertising or consequent business advantage, should be accepted for what it really was, a gratuitous contribution to its employees' social and recreational life." 298 N.Y. , at pp. 472-473, 84 N.E. 2 d , at p. 784.
The philosophy undergirding this holding was that the granting of the compensation award in such circumstances "would not only do violence to the letter of the statute but would offend against its spirit, by penalizing employers who, without prospect of profit or benefit, co-operate in enabling their employees to engage in social or athletic recreation on their own time and away from the company premises." See also Industrial Comm. v. Murphy, supra , 102 Colo. , at p. 62. 76 P. 2 d , at p. 742.
The emphasis which the court placed on the "off premises" activity and lack of "employer encouragement" factors in
Wilson is highlighted by its observation that simultaneously with the filing of its opinion in the case it had also filed an opinion in Brown v. United Services for Air, Inc. , 298 N.Y. 901, 84 N.E. 2 d 810 (Ct. App. 1949), in which it affirmed an award of compensation where, as in Tocci, supra , the claimant had been injured playing ball on the employer's premises during employees' lunch hour, holding that these circumstances sustained a finding that the "recreation involved was afforded with the consent and encouragement of the employer to such an extent as to render it an incident of the employment."
We subscribe whole-heartedly to the frequently expressed philosophy that the Workmen's Compensation Act is social legislation and is to be liberally construed in favor of the workman. However, facts may not be distorted nor may unrealistic inferences be drawn therefrom under the guise of liberal construction. If recovery is to be allowed here the proof of employer encouragement and employer benefit, the crucial factors in the determination of whether appellant's injuries were work-connected, must persuade a rational mind that the employer's contribution to the recreational activity was in fact "encouragement" calculated to produce some benefit to the employer, as distinguished from an act of pure generosity unbeclouded by ulterior motive; or alternatively, that a discernible benefit to employer, present or prospective, flowed or was likely to flow from the activity irrespective of the employer's intention with regard thereto.
Viewing the insignificant amount of money contributed to the activity in light of the vastness of respondent's operational expenses, it emerges as a trivial gratuity. Compare Tedesco v. General Electric Co. , 305 N.Y. 544, 114 N.E. 2 d 33 (Ct. App. 1953). See Wilson, supra, Tocci, supra (dissenting opinion), 28 N.J. , at pp. 596-597. When there are added to this the facts that the activity was initiated by the employees, was at all times under their exclusive direction and control, and so was beyond the competence of the employer to terminate, the composite picture produced
reveals no semblance of employer encouragement sufficient to categorize the activity as an ...