Tocci v. Tessler & Weiss, Inc.

Heiier, J.

(dissenting). The rationale of the majority opinion is that “* * * [w]hen the employees first transferred their luncheon recreational activity [from the public Biertuempfel Eield, some three blocks from the plant] to the employer’s premises the company might have but did not order its discontinuance; on the contrary it approved and encouraged its continuance and in so doing was presumably fully aware of the resultant benefit to itself in improving the morale of its employees, in having its employees close by so that they could readily resume their work on time, and in having its employees engage in their recreational activity on its own premises where it was in a position to exercise such supervision as it might consider appropriate,” and the "sanctioned recreational activity at the employer’s premises quickly became a customary one and was thereafter as incidental to the employment as was the luncheon itself or as would be a customary break for coffee or a cigarette or other permitted relaxation at the premises during the regular work day”; and “[t]he time, the place and the employer’s encouragement of the activity sufficiently bespeak its relation to the employment and the accidental injury which happened during its pursuit may fairly and justly be grouped with those occurrences which may be said to have had some work-connection rather than with those which may be said to have been unrelated to the employment.”

But there can be no such comparison, in the context of the statutory principle and policy of compensation, between *595accidental injury sustained by an employee on the employer’s premises while partaking of lunch or during “a break for coffee or a cigarette,” and an injury suffered while playing softball for exercise or recreation, no more than there would be if such an accident occurred while in the same pursuit on the nearby Biertuempfel Field, or the adjoining neighbor’s lands, or a nearby plajrground, with the employer’s knowledge. In none of these off-premises circumstances could it be said that the injury ensued from an accident arising out of and in the course of the employment within the intendment of B. S. 34:15-7; and on principle it cannot be otherwise where, as here, the employer merely acquiesced in such use of its lands and there was no integrated plan of recreational activity sponsored by the employer for ilie mutual benefit and advantage of management and labor as, e. g., in Tedesco v. General Electric Co., 305 N. Y. 544, 114 N. E. 2d 33 (Ct. App. 1953), Froessel, J., where a company-sponsored athletic association maintained a clubhouse on the company’s Schenectady premises for the social recreation of all of its employees. The claimant employee was injured in a softball game “conducted under the auspices of [the athletic association] and held on company property.” Distinguishing Wilson v. General Motors Corporation, 298 N. Y. 468, 84 N. E. 2d 781 (Ct. App. 1949), it was pointed out, that in Tedesco the employer’s financial support of the program was “substantial, not slight”; the “control by the employer was dominant” and “advertising and business advantage benefited the employer.” Employer “dominance and benefit” were deemed to be the determinative factors. In a word, it was said that all the activities of the athletic association “are obviously carried out with the sole purpose of providing an integrated plan of recreational activity in which the employer is dominant,” and “[h]owever beneficent to the employees such plan may be, its primary motivation is undoubtedly the furtherance of employee relations and the building of an esprit de corps and good will which redound to the benefit of the employer.” Again, it was declared that the decisive circumstances “are those indica*596tive of domination by or benefit to the employer,” divided roughly into “classifications of finances, interrelationship and control.” It was shown that the employer subsidized the operations of the association to the extent of $55,277 over an eight-year period, and the association, in turn, paid over to the employer, during a four-year period, upwards of $2,000 in excess of current charges; and that the games “attracted spectators from the general public, who were permitted to attend without charge—all of which advertised the employer.” It was found that there was an “inseparable connection with the employment,” and “complete and ultimate control” by the employer, “not only possessed, but exercised, * *

In Wilson the employees organized a softball league of 14 teams, “[u]pon their own initiative, without suggestion or encouragement from the management,” although “the employer paid for the equipment and permitted conferences relating to the contests on company time and on the company’s premises”; and the holding was, Euld, J., that the ball games 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; the employer exerted no “compulsion or restraint” upon the employees to participate; permission to take part in the games and the employer’s cooperation in the program were not enough; there was no evidence of “any business advantage or benefit accruing to the company from the employees’ participation in the contests”; “[t]oo 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”; nor does it matter 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 *597gratuitous contribution to its employees’ social and recreational life.”

Chief Judge Conway’s dissent in this case, proceeding on the premise of a conclusive finding by the referee below that the claimant was injured while “playing baseball on a team promoted and encouraged by the employer,” supported by a statutory presumption of a compensable accident, declares that “moral suasion exerted by the employer is a very real factor in any employment,” and “where an activity—different from the employee’s regular duties and even recreational in nature—is encouraged, promoted or subsidized by the employer, there is a strong compulsion upon the employee to participate in the outside activity,” and the court “must recognize this human reaction and the social pressures that prompt it”; and the finding below that the employer “derived business benefit from its promotion and encouragement of the activity” was accepted as resting upon substantial evidence.

There was no such “compulsion” or employer “benefit” in the case at hand. The play did not become a part of the service of the employee.

To be compensable, the accident must arise out of and in the course of the employment; this definitive term cannot be enlarged under the guise of a liberal construction. Jurisdiction must be certain and definite; the grant is not to be expanded beyond its defined limits. Magnolia Development Co., Inc. v. Coles, 10 N. J. 223 (1952); Alexander Hamilton Hotel Corporation v. Board of Review, 127 N. J. L. 184 (Sup. Ct. 1941). The accident here does not meet the statutory test.

An accident arises out of the employment if it ensues from a risk reasonably incident to the employment. A risk is an incident of the employment when it belongs to or is connected with what the workman has to do in fulfilling his contract of service. If the danger was one to which the employee was exposed because of the nature of his employment, the accident arose out of the employment. It is in this category if there be a causal relation between the injury and the conditions under which the work is required *598to be done. The service is then a contributory proximate cause; the injury is traceable to a hazard of the employment. Geltman v. Reliable Linen & Supply Co., 128 N. J. L. 443 (E. & A. 1942); Stevens v. Essex Fells Country Club, 136 N. J. L. 656 (Sup. Ct. 1948).

Here, the employer neither initiated nor sponsored the playing of softball during the noon hour when the employees’ time was their own, to be used as they saw fit; the employer merely suffered the use of its open land for that purpose, and it does violence to the realities to hold that thereby, in not peremptorily forbidding such play by the choice of the employees themselves, it elected to assume the statutory liability to make compensation for accidental injuries resulting from such play as mishaps arising out of and in the course of the employment. The employer made no contribution to the use thus made of its lands, save to supply a few bats and balls; and it was not seeking nor did it receive any benefit or advantage from such use. The reasoning to the contrary is illusory. The 30 or 35 employees (the working staff was in excess of 100) who used the land for play were in the pursuit of their own desires, unrelated to the employment, just as much so as the employee who, for his own purposes, deviates from the employment while still on the employer’s premises and is therefore so far removed from the employment as to be outside of the statutory coverage.

The principle of “mutual benefit” has no application. There is no basis for the conclusion that the course taken was so designed. There is no ground for the inference that such use of the land was in contemplation as an integral part of the service. The risk of harm was not one to which the employee was exposed because of the nature of his employment; what he was doing at the time was not the rendition of service under the employment contract, nor was it reasonably incidental to such service; and so the requisite causal relation is lacking. Generosity alone to one’s employee does not render one liable for compensation under the act for injury suffered while in the enjoyment of the favor, even though there be reciprocal good will and a *599heightening of morale. Such is not within the ambit of the employment. To have that quality, the thing done must be so closely identified with the service as to be part and parcel of it. Stevens v. Essex Fells Country Club, supra. Compare Clark v. Chrysler Corporation, 276 Mich. 24, 267 N. W. 589 (Sup. Ct. 1936); Pate v. Plymouth Mfg. Co., 198 S. C. 159, 17 S. E. 2d 146 (Sup. Ct. 1941).

I would affirm the judgment.

For reversal—Chief Justice Weintraub, and Justices Burling, Jacobs, Eranois and Proctor—5.

For affirmance-—Justices I-Ieher and Wacheneeld—2.