For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Schettino, J.
This is a workmen's compensation appeal.
The basic question is did petitioner's injury arise out of and in the course of the employment within the meaning of the Workmen's Compensation Act. R.S. 34:15-7 et seq. The Division of Workmen's Compensation and the County Court held that it did. The Appellate Division, by a split
vote, held that it did not. 61 N.J. Super. 461 (1960). Petitioner appeals as a matter of right. R.R. 1:2-1.
As we view the record, the following facts are clearly established. Petitioner, on May 14, 1957, was in the employ of respondent as a granule mixer. A co-worker, Johnson, was engaged in scraping an empty barrel when petitioner walked by and playfully touched Johnson between his buttocks. The touching caused Johnson to turn suddenly, raise his arms impulsively and strike petitioner with a hot scraper causing the injury. Respondent was aware that such sportive touchings were common between these two employees as well as between other employees.
The issues are (1) Does customary horseplay add to the risk of employment, (2) Was the particular act momentary and impulsive and an inconsequential deviation from the course of the petitioner's employment; (3) Does N.J.S.A. 34:15-7.1 bar recovery by an aggressor-participant in sky-larking incidents, and (4) Was the award of the attorney's fee by the County Court for services rendered on appeal excessive.
In Tocci v. Tessler & Weiss, Inc., 28 N.J. 582 (1959), the court reviewed in detail the history of the judicial interpretation of the statutory words "out of and in the course of" the employment and concluded that the facts of each particular case must be examined and determination then made of whether the subject accident was "work-connected" or whether such accident was "unrelated" to the employment. It emphasized the liberal view taken by our courts in cases involving the "out of and in the course of" provision of our statute beginning with the rule laid down in Bryant v. Fissell, 84 N.J.L. 72 (Sup. Ct. 1913), wherein it was held that an accident arises out of the employment if it results from a risk "reasonably incidental" thereto.
The history of skylarking in the compensation field has been intriguing. Hulley v. Moosbrugger, 88 N.J.L. 161 (E. & A. 1915), denied recovery to an employee who was injured and died when he tried to dodge a fellow employee's
playful swing of an arm on the theory that the accident did not arise "out of the employment." The court held that the employer was not charged with the duty to see that none of his employees assaulted any other of them, either willfully or sportively. Such a holding was in line with the strict-construction approach to the workmen's compensation cases immediately after the enactment. See Cole v. I. Lewis Cigar Mfg. Co., 3 N.J. 9, 16 (1949). But within three years thereafter our courts began to chip away at the Hulley ruling. In Mountain Ice Co. v. McNeil, 91 N.J.L. 528 (E. & A. 1918), the court, although denying recovery, implied that it would have awarded compensation if the employer countenanced or permitted the specific skylarking. This theory was referred to with approval in Staubach v. Cities Service Oil Co., 126 N.J.L. 479, 482-483 (Sup. Ct. 1941), certiorari denied 127 N.J.L. 577 (Sup. Ct. 1942), affirmed 130 N.J.L. 157 (E. & A. 1943). There, an employee was fatally injured when another employee sportively threw gasoline used in the work operations on him. The court pointed out that had the employer had knowledge of the sportive activity, the injury would be a "natural incident of the work" and would be held to arise out of and in the course of employment. Accord, Greene v. Watson Flagg Mach. Co., 25 N.J. Misc. 146 (Dept. of Labor 1947).
The next logical step was approached in Secor v. Penn Service Garage, 19 N.J. 315 (1955). There a garage attendant splashed gasoline on himself while servicing a car. His employer directed him to change into a clean uniform as gasoline soaked clothes were very dangerous. The employee struck a match near his clothes and the clothes instantly went up in flames resulting in severe injuries to himself. The court stated that, even if the employee committed the act foolishly and in a spirit of "mock bravado," he was entitled to compensation for (at p. 324):
"An employee is not an automation, and, even when he is highly efficient, he will to some extent deviate from the uninterrupted performance of his work. Such ...