*1 he has him that constitutes certificate attorney his knowledge, read the and that best of pleading it. there is to support information belief good ground rule not be An under this should attorney’s obligation rule The lawyer. least of all to a disbarred delegated, that an violates attorney who expressly provides willfully We its terms action. subjected disciplinary rule requires breach of this respondent’s conclude he be reprimanded. Weintraub, Justice Guilty reprimand—Chief Heiier, Burling, Jacob's, Erancis
and Justices Proctor—6.
Not guilty—Justice Waci-ieneeld—1. PLAINTIFF-APPELLANT, TOCCI, v. TESSLER & EDWARD WEISS, INC., DEFENDANT-RESPONDENT. Decided January Argued 1959. December *2 Mr. Louis C. Jacobson the cause argued appellant. Mr. Edward B. Meredith the cause for the re- argued spondent.
The opinion of court was delivered J. The Division of Workmen’s Compensation Jacobs, *3 dismissed the claim its plaintiff’s and action was petition sustained by the County Union Court. Thereupon plain- the tiff to the we appealed Appellate Division and certified his appeal on our own motion.
In 1948 the Edward plaintiff Tocci was as a employed the jeweler Weiss, Tessler by respondent Inc., & then which conducted its jewelry business in manufacturing a factory Street, loft at 9-11 Franklin Newark. In 1953 the respond- ent moved business to its new been con- plant structed on a of located at 2389 large plot ground Yaux Hall Eoad, Union. The to the plaintiff reported plant Union upon the of his completion two-week vacation period work July 1953. His was the of making engagement rings p. and his were from 7:30 a. m. hours to 4:15 working m., p. with luncheon from 12 noon to 12:45 m. The plaintiff and the other at liberty were to have their luncheon employees at the premises at which was close plant any place enough to enable them return work to on time. For about two after the at weeks work the Union he plaintiff began plant and some of the other went employees Field Biertuempfel Tessler, Fred their luncheon Mr. described period. as one used come proprietors, of down to the field with who employees, a softball generally engaged until their game return to the The plant. plaintiff testified that when he and the other noticed employees that grassy area in back of the lot at the parking company’s plant was cut, they assumed it was for their being use and there- they transferred their upon activities, luncheon their including softball game, to In plant 1953 and premises. August thereafter the and other plaintiff many employees customarily ate their lunch and softball played weather daily, permitting, plant premises.
Although softball never took on game any formal it did league aspects, furnish a recreational with outlet intra- The company competition. laid out the diamond in accordance with and set “inter- recognized regulations up the toolmakers shop games, jewelers”; against plain- tiff the view expressed benefited insofar company as “the itself made friends of men game better them- selves, a better with each other instead understanding of one crowd itself, were out they to the hanging brought field and in there ball brought through playing they He better.” testified that the get along company “supplied bats balls for the ball soft team” the team scores matches” were inside “inter-shop posted over the plant Burke, time clock.” Mr. building “right at the Union company’s plant, testified that he thought a recreational luncheon such as softball would be game an aid better towards labor-manage- Weiss, ment that he Mr. one relationship, approached “owners,” whether he plant and asked would approve *4 bats,” the idea of baseballs and that “furnishing Mr. he Mr. Burke Weiss said would. also testified that he talked to Weiss made Mr. about and that backstop Mr. having him find “what Weiss asked out the cost would necessary for and he he put be that said would do it.” having up, Mr. nor Tessler Neither Weiss Mr. nor any other witness was called the to refute limit respondent or the foregoing or the normal inferences to be drawn testimony therefrom. 10, 1956 the the plaintiff On October plant the luncheon hour and was premises during preparing to 586 in an softball his
engage inter-shop warm-up game. During ho fell and balance, lost his attempted flyball, to backhand a his claim Thereafter, fractured his left clavicle. he filed Division; in close of for at the petition compensation dismissed Deputy petition Director testimony that the was “willfully upon finding plaintiff negligent” and had not established that he had a compensable suffered that It is clear that Director’s injury. finding Deputy for of the constituted a plaintiff ground negligence his claim was erroneous Secor compensation (see for barring 19 317 315, Belyus v. Penn J. Garage, Service (1955); N. Wilkinson, & 49 Ct. v. Gaddis 115 N. J. L. (Sup. & in 1936)), affirmed 116 N. J. L. A. 1935), (E. did seek sustain the Court County respondent However, that it did dismissal of petition ground. in the Court on its contention that County plain prevail an arose “out of and tiff had not suffered which accident in the course of his within the employment,” contemplation the statute. R. 34:15-7. 8.
The Workmen’s Act is humane social Compensation in the cost of work-connected place designed legislation it who for as readily provide jury upon employer shall an It sets forth expense. compensation operating death out of and injury by accident paid arising of the in cases where employment except course all death self-inflicted or when injury or is intentionally is the natural and cause of the proximate injury. intoxication act, 34:15-7. after of the Justice R. S. Shortly passage Fissell, L. noted, Bryant in v. N. J. Trenchard arises out of the 1913), that an accident employ (Sup. from risk incidental” “reasonably ment if results thereto that an accident arises the course of the employment what man “if it so employe doing occurs do within a time reasonably employed may he and at a where place may reasonably he is employed, time.” And more recently, Belyus be during Wilkinson, & Heher Gaddis Justice supra, similarly arises accident out when noted
587
and arises in the
the risk
incident” to it
is “reasonably
its
when it occurs within
period
course of
and while
be
at a
where the
place
employee may properly
“or
some
he is
duties of his employment
doing
fulfilling
The
incidental
to it.”
continued sweeping generality
thing
definition
and its judicial
suggest
statutory language
line
liberally just
to maintain a
the conscientious endeavor
said
have
may
accidental
which
be
injuries
between those
which
said to
had some work connection and those
In
the employment.
have been unrelated to
drawing
have
rested on
formula
line the
any legalistic
courts
com
comprehensive legislative
but have
apply
sought
facts
fairly
justly
particular
pre
plan
pensation
DeFuria, 19 N. J. 290
v.
(1955);
sented. See Green
13 N. J. 8
v. Stein
Saintsing
v.
Gargiulo Gargiulo,
(1953);
1
J.
259
Div.
Super.
1949),
N.
(App.
bach Company,
v.
Aluminum
Sterling
2 N. J. 304
Stout
affirmed
(1949). Cf.
244, 246
:
213 W. 2d
Ct. App. 1948)
Products
S.
(Mo.
many attempted
various cases of the
definitions
“There are
‘arising
meaning
out of and in the course of his em-
words
not,
very
things
ployment,’
nature of
cannot
but
there
cases,
every
any
applies
be,
in all
and therefore
formula that
set
requirement
involving
application
must be decided
ease
upon
particular
and circumstances
and not
reference
own
facts
to some formula.”
en
while he was
occurred
plaintiff’s injury
The
in a
luncheon
customary
respondent’s premises
at the
gaged
not only
the respondent
hour recreational
necessary
supplying
also encouraged by
but
permitted
here
our
we need not
concern
Consequently,
equipment.
ac
where the recreational
with
precedents
selves
judicial
or was not
employer’s premises
not at
tivity
See
encouraged by
employer.
or was not
customary
Inc.,
Anheuser-Busch,
386
48 N. J. Super.
(Cty.
Konrad v.
&
14
Polishing
Royal Plating
Padula v.
1958);
Ct.
Co.
Mfg.
Hydro-Line
N. J.
603 (Cty.
1951);
Super.
Commission,
Ill. 2d
E. 2d 234
N.
Industrial
*6
Ct.
(Sup.
Wilson v. General
1958);
Motors Corporation,
298 N.
468,
Y.
In Waskevitz the employee while he injured was on his way from the room where he worked to an outer plat- form on another floor where he intended to smoke and get some fresh air; in Buerkle he was when he fell injured while carrying booster battery which he had borrowed from his employer’s premises to start the car of another employee who him customarily home; drove in Grotty he was murdered another employee he was in a brick shed on the employer’s premises where he apparently gone rest; to smoke and he Taylor was injured while he was his taking customary shower at the close of his working day; and in Terleclci she was after injured she had finished her work for the and was her day combing hair In home. each of preparatory going foregoing instances was awarded In compensation. TerlecM the court stated that it had no doubt accident in the “course of the happened employment,” that while the as to whether it “out question arose employment” doubtful, more the court was perhaps did; satisfied the opinion by Swayze Justice pointed out that while the was not the employment cause proximate of the accident “it was cause sense but for accident would not have happened.” This test of causation sweeping purposes "Work *7 men’s Act Compensation has been in approved recent de cisions this Court. See Howard v. by Harwood’s Restaurant Co., 72, 25 N. J. 82 v. Gargiulo Gargiulo, (1957); supra, Co., 13 N. J. at 13. page Crotty v. Driver Harris Cf. 49 supra, 72; N. J. at Super. page Pisapia City of Newark, 47 N. J. 353 Ct. Super. (Cty. 1957).
Our former Court and Supreme Court of Errors and Appeals repeatedly approved compensation awards for acci dental injuries which occurred at the employer’s premises during luncheon hour when the was employee not in actually his work. See Bolos v. Trenton engaged Fire &Clay 102 479 Porcelain N. J. L. Ct. (Sup. 1926), J. & affirmed 103 483 A. N. L. Hanna v. (E. 1927); Erie Railroad 8 N. J. Misc. 829 Ct. (Sup. 1930); Flanagan Son, E. & v. Charles Green 121 N. J. L. 327 (Sup.
1938), affirmed 122 N. J. & 424 A. 1939). L. In (E. Bolos the a employee ate his lunch at brick shed on the employer’s premises and was while fatally injured riding back where building he worked. The compensation award the employee’s widow was in sustained an opinion Justice Trenchard which found that the accident arose out of and in the course of the In employment. Hanna the employee was fatally injured by the unexpected operation aof machine on which she sat while lunch; her having in its a opinion sustaining compensation award the court relied on various judicial precedents Rowland including
590 v. Wright, [1909] 1 K. B. where a workman was a re- for the effects of cat bite awarded compensation premises was at stable eating ceived while workman In had was Flanagan employee where he employed. and had at machine where he worked eaten his lunch bottle; his milk rear of the room to wash to the gone In sustaining his leg. he stumbled broke returning court, in his favor the Justice compensation through award that, Case, although out it was compulsory, pointed have luncheon their for customary that were not removed from they premises of the Workmen’s Act protection Compensation 13 In Container Corp., Robertson v. period. Express of N. on the roof (1953), plaintiff injured J. her her where she had to have premises gone employer’s denied lunch; compensation, opinion this court although the aforementioned decisions but found wise questioned no had been not while injured, engaged “her lunch but course of customary activity,” unrelated to her over promenade purposes her where “she premises roof of portion employer’s before”; Oliphant never been Justice expressed sense dictated limitation in the eat- “common thought her lunch of fresh air to an area ing partaking her place lay.” to the where duties reasonably adjacent J. Riegel Corp., See Imre v. N. Paper (1957). *8 relaxation, and personal While the aforecited comfort compensation cases in which awards were sus- lunch hour are here both and this court pertinent persuasive, tained and have never had any courts predecessor actually a for claim for previous pass upon compensation occasion to a luncheon during customary period game sustained injuries at the with employer’s premises employer’s conducted and See DuCharme Columbia approval encouragement. v. Co., 167 31 N. J. Div. Engineering Super. (App. 1954); Stanton, N. J. 194 Div. 1953), v. 26 Super. (App. Harrison N. Essex affirmed 14 J. 172 Stevens v. (1954). Compare Club, L. 656 Ct. with Fells 136 N. J. Country (Sup. 1948),
591 Commission, Winter v. Industrial Accident Cal. 129 App. 174, 2d 2d 276 P. 689 However, Ct. (D. App. 1954). courts elsewhere have had and such occasion their decisions Schneider, be found in 6 Workmen’s Compensation Larson, Text 519 et and 1 Workmen’s Com seq. (1948) Notes, 328 et Chi. L. pensation seq. (1952). See 23 U. 328 5 Rev. De Paul L. (1956); Rev. 331 24 (1956); L. Tenn. Rev. 810 out (1951). points .Schneider (at p. 519) instances many injuries incurred during' recreational have activities been held to be noncompensable, the courts have drawn a distinction have sus generally and tained compensation recreation, awards where the such as a game on “played employer’s premises with knowl and edge of the acquiescence hours,” employer during noon has become part life routine of the em “daily Larson ployee.” Similarly, out points 330) (at p.
“in the
case of
typical
ball
injury during
noon-hour
game
ball
it
diamond”
company’s
held suffi
“generally
that the
is an
one,
cient
accepted
normal
since
thereby becomes
regular incident
condition of the
Rand, Inc.,
Sorino
employment.”
Remington
See
v.
1 App.
2d 720,
Div.
147 N.
2d
Y. S.
34
Div.
(App.
Brown
1955);
Air, Inc.,
United
v.
298
Services
N. Y.
84
901,
E.N.
for
810
2d
(Ct.
v. Anaconda
App. 1949); Geary
Copper Mining
Co., 120
485,
Mont.
41 S.
2d 608 (Ct.
Silk
App. 1931);
Mills
Kingsport
Cox,
Tenn.
incident the in v. employment.” Similarly, of Sorino Inc., Rand, Div. 2d N. Remington supra App. [1 Y. S. 2d a New York Division a 35], Appellate upheld compensation award for sustained the injuries by employee in softball an softball playing interdepartmental a the league conducted on diamond maintained game by at in employer premises; that, the court noted as Co., Tedesco General Electric 305 N. Y. N. E. v. 2d 33 factors (Ct. App. 1953), following significant were present: “(1) activities were on the of premises substantial employer; employer financial (2) gave support; could halt the (3) employer program any time.” In Thomas Proctor & Mfg. supra, Gamble was at the employee injured employer’s premises during hour; her she and lunch other had employees generally amused themselves lunch hour on small riding truck and it; her occurred while she was in injury on award the court sustaining compensation said: may regarded establishing “Inasmuch as the evidence be as play plaintiff injured in which was had become a settled custom, knowledge express approval with the indeed of charge department, objection the foreman in and without part any one, opinion injury of the court is of the that her only regarded, having as occurred her course of employment, having (179 page 376) but as it.” arisen out of P. at In Conklin v. Kansas City Public Service supra [226 Mo. W. App. 309, 41 S. 2d was 613], injured while he was noon indoor hour baseball watching game other in one being played by employer’s The court reviewed earlier cases buildings. and concluded that the whether, was all controlling point under the circum stances, “the arose from which had injury become something an incident to the Since the in employment.” evidence dicated that the indoor baseball a noon game customary hour recreational on the place took employer’s the consent premises with em encouragement little ployer, difficulty court sufficient finding basis for a The Conklin case cited compensation award. *10 witli full in approval v. Geary Anaconda Copper Mining
supra Mont. 485, 188 P. 2d 187], where an [120 who was subject to call was injured during luncheon period while in playing handball on garage building employer’s premises; the handball was a playing customary luncheon period activity which met wdth the employer’s approval and the court found that there was “sufficient causal connection” to warrant the that the arose out holding injury of and in the course of the In employment. his concurring Chief opinion, Justice Adair noted that “most courts have been liberal in workmen protecting the noon hour” during and that since the employee’s injury occurred the em- ployer’s while he premises was doing something customary which the have, did not company as it disapprove, it might fairly be considered that may his was activity incidental to his and his employment injury compensable.
In the of all of the light we have no foregoing hesitancy in that the concluding plaintiff’s accidental was com- injury under pensable prescribed liberal construction of the New Workmen’s Jersey Compensation Act. See Howard v. Harwood’s Restaurant 25 N. supra, J. at 88; page Gargiulo Gargiulo, 13 N. supra, J. at 13. When page first transferred employees their luncheon recreational to the activity employer’s premises the company have might discontinuance; but did not order its on the contrary, approved its encouraged continuance and in so doing aware presumably fully of the resultant benefits to itself in the morale of its improving employees, its having close so that employees could they resume their readily time, work on and in having their engage recreational on its own premises where it was in to exercise such position supervision as it consider might The appropriate. sanctioned recreational activity at the em- ployer’s premises quickly became a one customary and was thereafter incidental to the as employment as was the lunch- eon itself or would be a as break customary for coffee or or other permitted relaxation at cigarette premises time, work day. The regular place and the activity, sufficiently bespeak
employer’s encouragement the accidental injury its relation to its pursuit may fairly justly which happened during be said may with those occurrences grouped with those which work rather than have some connection We employment. to have unrelated to be said been court erred in are satisfied that the lower dismissing is accordingly: and its petition judgment claim plaintiff’s Reversed. *11 the majority The rationale of J. (dissenting). Heiier, “* ** first trans- the employees is that
opinion [w]hen the activity public ferred their luncheon recreational [from Eield, to three blocks from plant] some Biertuempfel have but did company employer’s premises might discontinuance; it order its on contrary approved in so was presum- its continuance and doing and encouraged im- benefit itself in of the resultant to ably aware fully in its the morale of its employees, having proving their work could resume on by they readily close so their in recrea- time, and in its employees engage having on where it was premises posi- tional its activity own exercise such it consider supervision might appro- tion to as at the em- and "sanctioned recreational priate,” became a one and customary was premises quickly ployer’s was the incidental to lunch- employment thereafter as as for coffee or customary itself would be break eon or as the premises or other relaxation permitted a cigarette time, and day”; work place during regular “[t]he of the activity the employer’s encouragement sufficiently and relation and the its accidental employment bespeak and pursuit may which happened during fairly injury may with those which be said be occurrences justly grouped rather than have some work-connection with those have been unrelated to the be employ- said ment.” be in the context of comparison,
But there can no such and of between policy compensation, statutory principle accidental sustained injury by on employer’s premises lunch “a of or partaking break coffee or a and an cigarette,” suffered while injury playing softball for recreation, exercise or no more than there would ifbe such an accident occurred while in the same pursuit on the nearby Field, Biertuempfel adjoining neigh lands, bor’s aor with the nearby plajrground, employer’s In none of knowledge. these off-premises circumstances could it said ensued from injury an accident out of arising course of the within the intendment of B. 34:15-7; S. can principle not be where, otherwise here, as the employer merely acqui esced in such use of its lands and there no integrated plan of recreational activity sponsored employer for ilie mutual benefit and advantage labor management as, e. g., Tedesco v. General Electric N. Y.
114 N. 2d 33 Froessel, E. (Ct. App. 1953), J., where a athletic company-sponsored association maintained a club house on the company’s Schenectady premises for the social recreation of all of its employees. The claimant employee in a injured softball “conducted under game the auspices athletic and held on company property.” [the association] Wilson v.
Distinguishing
General Motors
Corporation,
*12
N. Y.
tive divided of domination or benefit the by employer,” to finances, interrelationship into “classifications of roughly and It employer control.” was shown that the subsidized $55,277 extent the of the association the of to operations association, turn, over an and the paid eight-year period, the four-year period, upwards over to employer, during $2,000 of in excess current and that the games charges; the were “attracted from who spectators general public, attend of which to without advertised permitted charge—all It the was found there was “inseparable employer.” and and ulti- “complete connection with the employment,” by possessed, the “not but employer, only mate control” ** exercised, the softball employees organized league In Wilson teams, initiative, their own without suggestion “[u]pon the “the management,” although or from encouragement and conferences permitted employer paid equipment time and the com- contests on company to relating was, Euld, J., and the pany’s premises”; holding di- “out-of-hours, were off-the-premises personal ball games were with the men, optional not only versions of were for their own exclusively but recreation employees without advantage employer”; business indulgence, sponsored” were neither “initiated nor by games re- “compulsion exerted no or employer; employer permission upon participate; straint” and the take in the games employer’s cooperation part were was no enough; there evidence of program or benefit to the “any accruing company business advantage contests”; employees’ participation from the “[t]oo possibility ephemeral partici- tenuous such im- benefit the indirectly employer by pation might perhaps or em- by fostering the workers’ morale health or proving will”; it matter that “employer nor does ployee good to, in, some aid such or contributed financial acquiesced thus activities”; support given employer, “slight ad- business advertising consequent without attendant *13 was, a for what it accepted really should be vantage, gratuitous contribution to its social recrea- employees’ tional life.” case,
Chief dissent in this Judge Conway’s proceeding a premise of conclusive the referee below finding by the claimant was baseball on injured “playing a team promoted and encouraged by employer,” sup- of a ported by statutory presumption compensable acci- dent, declares that exerted “moral suasion employer by ais real factor in an very any “where employment,” activity—different from the duties and employee’s regular even recreational nature—is promoted or encouraged, subsidized there is a employer, strong compulsion upon employee to the outside participate activity,” and the court “must this human recognize reaction pressures it”; social and the prompt below finding “derived business benefit employer from pro- motion and as encouragement activity” accepted upon substantial evidence. resting
There was no “compulsion” such or “benefit” employer in the case hand. The did not play become part the service of the employee.
To be must compensable, accident arise out of and course of this definitive term employment; can not be under the of a enlarged liberal construction. guise Jurisdiction must definite; be certain and is grant to be its defined expanded beyond Magnolia limits. Coles, Inc. v. 10 N. J. 223 Development (1952); Review, Alexander Hamilton Hotel v. Board Corporation 127 N. J. L. 184 The accident here does (Sup. 1941). not meet the test. statutory
An accident arises if out of the it ensues from risk A reasonably incident to risk employment. is incident of the employment when belongs connected with what the workman has to do in fulfilling his contract of If service. was one to danger because of the nature exposed of his em- ployment, accident arose out of the employment. It is in this if there abe causal category relation between the and the conditions under injury which the work is required
598 a contributory proximate The service is then to be done. a hazard of the employment. is traceable to cause; the injury & 128 Linen Supply Reliable ltman Ge Essex Fells & A. Stevens v. 1942); N. J. L. 443 (E. Club, N. J. L. 656 Ct. (Sup. 1948). 136 Country the initiated nor Here, sponsored the neither employer em- the hour when the noon of softball playing fit; as saw own, they their to be used time was ployees’ of its land for open suffered the use merely the employer the realities to hold and it violence to that does purpose, play by such peremptorily forbidding not thereby, themselves, it to assume elected the choice of the accidental make for liability compensation the to statutory out mishaps arising such as play from injuries resulting The employer the employment. of and course of lands, made the use thus of made no contribution to it was not seek- balls; a few bats and supply save to from such advantage did it receive benefit or ing any nor The 30 the is contrary illusory. use. The to reasoning who staff was in excess of working 100) 35 employees (the their own used the land were in the of play pursuit for as so as desires, unrelated much employment, just who, deviates from the for his own employee purposes, and is while still employment employer’s premises far as to be therefore so removed from employment outside of the statutory coverage. “mutual has no principle application.
The of benefit” taken There is no basis for the conclusion course is for the inference ground was so There no designed. use the land was in as an contemplation that such of integral The risk harm was not one to which part service. of of his because of the nature of employee exposed time was what he not employment; doing contract, rendition of service under nor service; was it such reasonably incidental so causal is alone to lacking. Generosity relation requisite render for compensation one’s does not one liable under the act suffered while in the enjoyment injury favor, there be will and a reciprocal even good though
599 within the ambit of of morale. Such heightening done must thing To have employment. quality, as be part so identified with the service closely Club, Country supra. it. Stevens v. Essex Fells parcel 276 Mich. Clark v. Compare Chrysler Corporation, Plymouth Mfg. N. W. 589 Pate v. 1936); (Sup. 17 S. E. 2d Ct. 1941). S. C. (Sup. *15 affirm the I would judgment. Weintraub,
For reversal—Chief Justice Justices Burling, Jacobs, and Proctor—5. Eranois
For I-Ieher and Wacheneeld—2. affirmance-—Justices SAPERY, THE MATTER OF THE ESTATE OF IN HYMAN DECEASED. Argued Decided January 1959. December