For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Schettino, J. Francis, J. (concurring). Francis, J., concurring in result.
This is a workmen's compensation case appeal. An award was granted petitioner, Angel Diaz, by the Division of Workmen's Compensation. The County Court upheld the award, 60 N.J. Super. 424 (Cty. Ct. 1960), and the Appellate Division affirmed. 65 N.J. Super. 249 (App. Div. 1960). We granted certification. 34 N.J. 465 (1961).
Diaz was injured on November 20, 1957 while in the employ of respondent. Diaz was hosing down with water certain frames lying on the floor before him. A fellow employee, Frank Waters, was working nearby within a radius of seven to ten feet. Waters testified that Diaz twice playfully squirted water on Waters' legs. After the first squirting, Waters warned Diaz that he would receive the same treatment if Diaz again squirted Waters. There is evidence that Diaz probably did not understand Waters as Diaz did not speak or understand English. A second squirting took place. In retaliation Waters turned and threw at Diaz the contents of a pail of what he thought was water but was in fact lacquer thinner. Almost immediately, an open flame under a nearby tank ignited Diaz's clothing and he was severely burned. There is contradictory testimony but three tribunals agree that the injuries occurred as described and we see no reason to disturb these findings.
The employer contends that Diaz was engaged in skylarking and should be denied compensation because he failed to provide the link necessary to his case, i.e., proof that the employer acquiesced in the skylarking which caused the injury. It relies on McKenzie v. Brixite Mfg. Co., 34 N.J. 1 (1961). Diaz contends that his conduct was not such as to bar him from the benefits of the Workmen's Compensation Statute.
Unlike McKenzie the record here contains no proof that the employer had knowledge of the kind of activity which caused petitioner's injury, or indeed that any pattern of skylarking preceded the injury so that the employer could be constructively charged with knowledge thereof, or of any
knowledge or observation of prior skylarking by Diaz or the other employees. At oral argument both counsel said a rehearing would produce no additional testimony on the presence or absence of skylarking as a custom at respondent's place of business.
We hold that the facts presented here do not encompass the type of "skylarking" which bars recovery and hence the question of acquiescence by the employer is immaterial. Rather the case requires the application of a realistic view of reasonable human reactions to working conditions and associations with people encountered in the course of employment.
The history of judicial interpretation of the statutory words "out of and in the course of" the employment indicates clearly that upon the facts of each case a determination is made of whether the subject accident was "work-connected" or whether the accident was "unrelated" to the employment. In Tocci v. Tessler & Weiss, Inc., 28 N.J. 582 (1959), we noted the emphasis of the liberal view taken by our courts involving the "out of and in the course of" provision beginning with the rule laid down in Bryant v. Fissell, 84 N.J.L. 72 (Sup. Ct. 1913), which stated that an accident arises out of the employment if it results from a risk "reasonably incidental" thereto.
We refer to some of the authorities in this field. In Secor v. Penn Service Garage, 19 N.J. 315 (1955), a garage attendant splashed gasoline on himself while servicing a car. His employer told 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. We held that even if the employee committed the act foolishly in a spirit of "mock bravado," he was entitled to compensation. Mr. Justice Jacobs explained why (19 N.J., at page 324):
"An employee is not an automaton, and, even when he is highly efficient, he will to some extent deviate from the uninterrupted performance of his work. Such deviation, if it be considered minor in
the light of the particular time, place and circumstance, is realistically viewed by both the employer and the employee as a normal incidence of the employment relation and ought not in this day be viewed as legally breaching the course thereof. Fulfillment of the high purposes of our socially important and ever broadening Workmen's Compensation Act ...