Injured in a play at first base in a softball game between teams made up of employees of General Motors Corporation, claimant sought and was awarded compensation benefits. On application of the self-insured employer, we granted leave to appeal from the affirmance of that award by the Appellate Division so that we might consider whether an injury suffered by an employee voluntarily participating in an athletic or other recreational activity, under the circumstances here disclosed, *Page 471 is properly compensable as one "arising out of and in the course of" his employment.
Claimant, forty-five years old, was employed as a clerk in the patrol office of General Motors which, at the time of the accident, was engaged in the manufacture of aircraft engines. Upon their own initiative, without suggestion or encouragement from the management, the employees had organized a baseball league consisting of fourteen teams. The games were played on the employees' own time in a public park many miles from the employer's plant, and the players had to provide their own transportation to and from the park. Not only were the employees not paid for time spent on the baseball field, but their wages were, indeed, actually subject to deduction if they were late for work after playing or practicing. All organizational details and all arrangements affecting the games were handled by the employees. They procured the equipment — gloves, bats and balls — and selected the uniforms, bearing the letters "M. A." (signifying Motor and Axle Division), although it appears that the employer paid for the equipment and permitted conferences relating to the contests on company time and on the company's premises. The games were not advertised in any way, and no outside publicity whatsoever attended their playing.
The determination made by the Workmen's Compensation Board that "claimant's participation in playing baseball * * * was incidental to his employment", was based upon findings that "the employer promoted the organization of departmental baseball teams and encouraged the participation of its employees in athletic activities" and that "the resulting better employer-employee relationship exercised a stimulating influence upon the work activity of the participant employee through such recreational facilities." The board, in holding the injury compensable, and the Appellate Division, in affirming that body's decision, relied specifically upon the evidence that the employer had paid for the equipment and had permitted conferences relating to the games to be held on company time, and that its nurse, following claimant's injury, had given him heat treatments.
The Workmen's Compensation Law has been broadly construed, and properly so, to embrace all activities which can, in any reasonable sense, be included within its coverage. (See *Page 472 Matter of Industrial Comr. [Siguin] v. McCarthy, 295 N.Y. 443,446-447.) Liberally though we would now apply it, however, we cannot stretch the statute's "broad and remedial purpose" — the phrase urged upon us — to cover a case such as this. By its very provisions, the statute permits compensation awards only for those injuries "arising out of and in the course of" employment. (Workmen's Compensation Law, § 10; see Matter of Ognibene v.Rochester Mfg. Co., 298 N.Y. 85; Matter of Gaurin v. Bagley Sewall Co., 298 N.Y. 511; Matter of Martin v. Plaut,293 N.Y. 617, 618.)
Though section 21 of the Workmen's Compensation Law creates a presumption — "in the absence of substantial evidence to the contrary" — that the claim for compensation "comes within the [statute's] provision", it is a "limited presumption". (Matterof Magna v. Hegeman Harris Co., 258 N.Y. 82, 85.) It has no bearing here, for it cannot be used as a substitute for actual proof that the injury arose out of and in the course of the employment. (See Matter of Dyviniek v. Buffalo Courier ExpressCo., 296 N.Y. 361, 364; see, also, Matter of Daus v.Gunderman Sons, 283 N.Y. 459, 465-466; Matter of Lorchitsky v. Gotham Folding Box Co., 230 N.Y. 8, 12.) In truth, the presumption has no place in any case once the facts are fully developed; of necessity, it fails in the presence of contrary evidence. (See Matter of Magna v. Hegeman Harris Co., supra, at p. 84.) The presumption, then, is inapplicable and inoperative in this case, and consideration of the record constrains us to conclude that the determination under review lacks evidentiary support.
These ball games, the record makes plain, were out-of-hours, off-the-premises, personal diversions of the men, and were not only optional with the employees but were exclusively for their own recreation and indulgence, without business advantage to the employer. The games were neither initiated nor sponsored by the employer, in no way connected with its affairs, and in no manner subject to its control Even if the company had so desired, it could not have halted the ballplaying or changed the program in any way. In other words, totally lacking is any basis for an inference that it controlled the activity or sought to compel or induce any employee to participate in it. On the contrary, indication almost positive that the activity was *Page 473 separate and removed from the employment is found in the fact that the employer actually penalized employees who, as a result of playing or practicing, reported late for work. Neither the circumstance that management gave its permission to employees to take part in the sport, nor even that it co-operated in the program, can be said to spell out compulsion or constraint, and no evidence on that score is supplied by testimony that a foreman once remarked that a particular game might have been won had claimant been playing. And, as indicated, we look in vain for evidence of any business advantage or benefit accruing to the company from the employees' participation in the contests. Too tenuous and ephemeral is the possibility that such participation might perhaps indirectly benefit the employer by improving the workers' morale or health or by fostering employee good will.
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. (See, e.g., Matter of Rubinstein v. Madison House Soc.,239 App. Div. 867; Clark v. Chrysler Corp., 276 Mich. 24, 29;Pate v. Plymouth Mfg. Co., 198 S.C. 159, 162.) In a case such as the one before us, the granting of a compensation award 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.
The conclusion thus reached impresses us as sound, the reasoning upon which it is based convincing, and, accordingly, we need not the authority or support which decisions from other States may furnish. However, it is of some consequence that every court that has passed upon the subject has likewise concluded that participation in a baseball game, under *Page 474 circumstances such as those here presented, cannot be considered an incident of employment. (See Industrial Comm. v. Murphy, 102 Col. 59; Leventhal v. Wright Aeronautical Corp., 25 N.J. Mis. Rep. 154; Porowski v. American Can Co., 15 N.J. Mis. Rep. 316; Pate v. Plymouth Mfg. Co., 198 S.C. 159, supra;State Young Men's Christian Assn. v. Industrial Comm.,235 Wis. 161; cf. Clark v. Chrysler Corp., 276 Mich. 24, supra;Auerbach Co. v. Industrial Comm., 195 P.2d 245 [Utah].)
In Pate v. Plymouth Mfg. Co. (supra), the employer likewise gave financial assistance to a baseball team formed by its employees. Holding that an accidental injury suffered by an employee was not compensable, the court wrote that "`There is no evidence that the mill exercised or attempted to exercise any control or domination of the club or endeavored to direct its activities * * * it is impossible * * * to see where the corporation had any connection with the ball club, other than from a charitable or benevolent standpoint to promote the social life of its workers. It is impossible * * * to see how the words of the statute defining a compensable injury can be stretched to cover the situation presented.'" (198 S.C., at pp. 162-163.)
And in the Murphy case (supra), it was said: "It may be regrettable that this young man can not be compensated under the terms of the act, but its provisions must not be pushed beyond the limits of their purpose, nor its funds diverted to those not clearly entitled thereto and the object of their creation be thus frustrated. Kindness to one may well be cruelty to many. Allowance of this claim could but serve as a warning to employers that they may concern themselves with the social life and recreation of their men, or permit their officers to do so, or contribute to efforts to lighten life, only under penalty of liability for every accident and injury arising from such activities, however remote from the employment itself." (102 Col., at p. 62.)
There are of course, many instances where the recreation may be so bound up with the employment that a resulting injury will be deemed one arising out of and in the course of such employment. One such is Matter of Brown v. United Services for Air, Inc. (298 N.Y. 901), which we also decide today. There, the injury occurred during a volleyball game which was *Page 475 played on the employer's premises, under the employer's supervision and during the employee's lunch hour. Other instances are found in the three cases cited by Judge CONWAY in his dissent (298 N.Y. 475, 482). In one, Matter of Kenney v. Lord Taylor, Inc. (254 N.Y. 532), the claimant was injured on company property at a gathering held at the employer's request for the purpose of having speeches on salesmanship given for the benefit of the defendant concern; in the second, Matter of Piusinski v.Transit Valley Country Club (283 N.Y. 674), the claimant was injured on the very course where he was wont to work for his employer as a golf caddy and it appeared that the game in which he was hurt constituted practice which was of some benefit to the employer; and in the third, Matter of Huber v. EagleStationery Corp. (254 App. Div. 788, leave to appeal denied278 N.Y. 739), where claimant was injured while playing baseball, the team's expenses and transportation were paid for by the employer, the team was organized and supported by the employer for advertising purposes, and all this was done in the hope that a winning team would advertise the company and redound to its benefit. Thus, in each of those cases there was evidence that the activity in which the particular employee had engaged not only was encouraged by the employer, not only was directly aimed at promoting the employee's skill in the discharge of the very duties of his employment, but was of unquestioned "benefit" to the employer. On the same footing, too, stand those cases wherein the employer requires the employee to participate in the recreational activity or subsidizes it in order to derive for himself a financial return or some beneficial publicity. (See, e.g., Matter of Holst v. New York Stock Exch., 252 App. Div. 233; Linderman v. Cownie Furs, 234 Iowa 708; Le Bar v.Ewald Bros. Dairy, 217 Minn. 16; Salt Lake City v.Industrial Comm., 104 Utah 436.)
The further fact, relied upon by the Workmen's Compensation Board and the Appellate Division, that a company nurse gave claimant heat treatments, we put aside as inconsequential. Similar service was provided to all employees who wanted it — for all ailments, whether contracted at home or sustained on plant property, while at work or while at play. That being so, we may not view the rendering of such nursing service as acknowledgment that claimant's injury was compensable. Nor may the *Page 476 additional circumstance, also remarked below, that the employer permitted conferences on company time and property, be deemed sufficient to extend the employment to claimant's voluntary personal recreation, far from his place of work and entirely outside of his working hours. Perhaps if the injury had occurred on the employer's premises during the working day at a conference relating to the games, there might have been basis for finding that the employee's general employment had not been interrupted by his participation in the discussions.
If the result we reach be thought unfortunate, the Legislature has power to alter it. As the law is now written, an employer is under no duty to compensate his employees for injuries sustained by them while pursuing their private interests on their own time and at a distance from their employer's premises. Were the courts to impose such a duty because the employer gave a modicum of encouragement to employees intent on organizing recreational activities, the employer might, in his own self-interest, seek to escape the burden by withholding all aid and support. Such a result would not, we venture, square with the large and long range objectives of the Workmen's Compensation Law.
The order of the Appellate Division and the decision of the Workmen's Compensation Board should be reversed, with costs in this court and in the Appellate Division, and the claim for compensation dismissed.