25 N.J. Misc. 397 | New York County Court, Essex County | 1947
Petitioner, Harry Bosenberg, was employed as a sewing machine operator by respondent-appellant, Biboni and Co. In addition to using sewing machines,
The additional salient facts are that many of the employees on numerous occasions, to the knowledge of the employer, had used this pressing machine for personal purposes. This was not done by the employer’s express permission, certainly not by his authority, but rather, D’Addario, the supervisor, simply looked the other way to avoid any altercation. There is no evidence that Rosenberg’s pressing of his own trousers, or in fact the trousers themselves, had the slightest connection with his employer’s business.
Petitioner-appellee nevertheless contends that this pressing of his own trousers, which, in the absence of evidence to the contrary, must therefore be taken to be for his own personal use, was incidental to his employment, and therefore arose out of and in the course of the employment, because of the fact that the employer did not stop him and the other employees from using this pressing machine for their personal purposes on various occasions. As sustaining his position, he cites a number of cases, mostly from other jurisdictions, quoting the principle that, “An injury sustained by an employee while engaged in the performance of an act essential to his personal comfort and convenience is compensable as ‘arising out of’ and ‘in the course of the employment.’ ” 71 C. J. 669. He further cites the following text from 1 Honnold, Workmen’s Compensation, 381:
“Acts of ministration by a servant to himself such as quenching a thirst, relieving his hunger, protecting himself from excessive cold, performance of which while at work are reasonably necessary to his health and comfort, are incidents to his employment and acts of service therein within the Workmen’s Compensation Acts, though they are only indirectly conducive to the purpose of the employment. Consequently, no break in the employment is caused by the mer.e face that the-workman is ministering to his personal comforts
But the latter citation, with which the New Jersey cases and the authorities generally are fully in accord, clearly indicates that the employee, while employed, may not do anything he likes for his “personal comfort and convenience,” and still claim to be acting within the sphere of his employment. These acts must be “essential” thereto, in order that he may maintain his health and properly perfprm the duties for which he is being paid. Such is the rationale of the New Jersey decisions, holding that acts done by the employee in connection with taking lunch, warming himself, answering a call of nature, and changing his clothes and cleaning up after work, since they are all essential for the preservation of the employee’s health, and the proper performance of his duties as a healthy employee, are acts incidental to his employment, so that injuries arising therefrom are compensable. Terlecki v. Strauss, 85 N. J. L. 454; 89 Atl. Rep. 1023; affirmed (Court of Errors and Appeals), 86 N. J. L. 708: 92 Atl. Rep. 1087; Taylor v. 110 S. Pennsylvania Ave., 117 N. J. L. 346; 188 Atl. Rep. 689; Flanagan v. Green & Son, 121 N. J. L. 327; 2 Atl. Rep. (2d) 180; affirmed (Court of Errors and Appeals), 122 N. J. L. 424; 5 Atl. Rep. (2d) 742; Hanna v. Erie, 8 N. J. Mis. R. 829; 152 Atl. Rep. 179 ; Bubis v. Flockhart Foundry, supra.
By definition, therefore, where an act is done by the employee for his personal comfort and convenience, which is not reasonably essential for his health and conducive to the proper conduct of his work, but is merely for his own accommodation or advantage, without any connection with his work, same is not incidental to his employment, and injury arising therefrom is not compensable. Such is clearly the character of the petitioner’s act here, in pressing his own trousers, without the slightest connection between such pressing and his work. Nor would it seem that his having done so on other occasions, or the custom of other employees to do similar
The latter is the rationale of Popovich v. Atlantic Products Corp., 125 N. J. L. 533; 17 Atl. Rep. (2d) 492, where the employee, on returning to work from lunch, through a trapdoor; was injured by the slamming of the trapdoor by another employee, who had been playing ping-pong, as permitted by the -employer. The court makes it clear, not that the custom of playing ping-pong was a part of the employment, but that this custom created a “danger” in the employment,- the injury from which was therefore compensable. And the court says, in Belyus v. Wilkinson, Gaddis & Co., 115 N. J. L. 43; 178 Atl. Rep. 181; affirmed (Court of Errors and Appeals), 116 N. J. L. 92; 182 Atl. Rep. 873, “The line . of demarcation is that which separates acts within and those beyond the sphere of the employment” (115 N. J. L. at p. 50; 178 Atl. Rep. at p. 186). In that case, if the court had found, as claimed, that decedent’s injuries arose from “business of his own, i. e., the washing of his boy’s pants” (115 N. J. L. at p. 46; 178 Atl. Rep. at p. 184), clearly no compensation would have been allowed. To the same effect are the cases of Daly v. Bates & Roberts, 224 N. Y. 126; 120 N. E. Rep. 118, where petitioner’s doing her personal laundry was held non-compensable, though there the work was done after hours, rather than during the luncheon period, and Vitas v. Grace Hospital Soc., 107 Conn. 512; 141 Atl. Rep. 649, where plaintiff’s injury was held non-compensable when it arose from her laundering the curtains for her own room in the hospital during the luncheon period. Since the curtains were for a room in the hospital, run by the employer, the court alludes to the fact that if the work “was permitted by the employer for their mutual benefit and convenience,
In short, since the employee’s pressing of his own trousers was, so far as the evidence indicates, for his own personal use, the mere fact that others were leniently permitted to do acts for their own accommodation during their employment, does not change the character of that act from a purely personal one to one incidental to the employment. Thus the injury arising therefrom is not compensable.
The award in the Bureau will, therefore, be reversed, and a determination may be entered accordingly.