Appeal from Supreme Court. Proceedings by James Colucci under the Workmen's Compensation Act to obtain compensation for the death of Leo Colucci, opposed by the . Edison Portland Cement Company, employer. An award was affirmed on certiorari (108 Atl. 313), and the employer appeals. Reversed. William H. Morrow, of Belvidere, for appellant. WHITE, J. This is an appeal from a judgment of the Supreme Court, affirming an award by the court of common pleas of Warren county of compensation under the Workmen's Compensation Act (P. L. 1911, p. 134) to the plaintiff for the death of his 21 year old son, Leo, upon whose wages plaintiff was proved to be partially dependent. The essential circumstances or facts, as established by the findings of the common pleas court and the undisputed testimony, were as follows: Leo, a general utility laborer in defendant's cement works, had been at work before the accident (in accordance with his employment) in shoveling away broken rock or cinders, which spilled from a conveyer belt moving through an inclosed tunnel. The work was very trying, because of the dust and dirt and of the heat, and it was necessary for the men so employed to go out of their respective tunnels to seek fresh air and rest for a few minutes "now and then," re-entering the tunnel and resuming the shoveling, however, "in five or ten minutes," so as to prevent an accumulation of the spillings from clogging up the tunnel and stopping the running of the conveyer belt. Leo was working on the night shift, which commenced at 6 p. m. and ended at 7 a. m. Some time between 1:34 a. m. and 2:30 a. m. he left his tunnel and went to the dryer house of h's employer's plant, about 100 yards away, which house he entered and lay down upon a pile of brick and went to sleep. His timecard in the company time clock was punched at 1:34 a. m., which, if he punched it, would indicate that he terminated his work for that night at that time. There was no evidence as to who punched this card, however, and the learned trial judge made no finding upon this point. At 3:45 a. m. the assistant foreman, Sabo, one of whose duties was to keep the men at their work, found Leo's conveyer clogged with an accumulation 'of-spillings, went to look for him, found him sleeping in the dryer house, tried to awaken him, to get him to go back to his work, but was unsuccessful, and finally went himself and shoveled out the tunnel, so the conveyer could run. At about 5 a. m. Sabo found this tunnel clogged up, and again himself shoveled it out, and then at 5:30 a. m. went over to the dryer house and asked Jim, the fireman, if Leo was still asleep in there, and was told that he was, and said, "Come on; I wake him up, and you see some fun," or words to that effect, and took a brick (one witness thought it was an iron bolt) and climbed up some outside tower stairs alongside an adjoining building, and threw the brick down on the corrugated iron roof of the dryer house, so as to make a big noise and to shake the soot and "black stuff" down on the sleeping man, in order to give him a scare. This was within a few minutes of quitting time, and Sabo did not wait and tell Leo to get back to work, but ran down the stairs and slipped away, so that Leo would not see who it was that played the joke upon him. Sabo was asked on cross-examination if his purpose was not to get Leo back to work, but answered, "Well, it was about quitting time." Unfortunately there was a rusty hole or weak spot in the roof, and the brick struck and went through it, and hit Leo in the stomach, so that he died the next day. Two questions are presented by these facts, namely: Did the accident arise out of the employment, and, if so, was it in the course of the employment? Both must be answered in the affirmative to warrant the award. Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458. Hulley v. Moosbrugger, 88 N. J. Law, 61, 95 Atl. 1007, L. R. A. 1916C, 1203. The learned common pleas judge resolved both these questions in the affirmative, but in this respect, so far as his decision was a conclusion of law from established facts, it was subject to review in the Supreme Court, and the affirming judgment of that court is subject to review on appeal here. Bryant v. Fissell, supra; Hulley v. Moosbrugger, supra. 1. Did the accident arise out of the employment? This would ordinarily depend upon whether what the assistant foreman, Sabo, did at 5:30 in the morning, when he ascended the stairs outside another building and threw the brick on the iron roof under which Leo was sleeping, was reasonably within the scope of his employment to keep the men at their work, or whether it was a bit of "horse play," quite outside the confines of that employment. Hulley v. Moosbrugger, supra; Mountain Ice Co. v. McNeil, 91 N. J. Law, 528, 103 Atl. 184, L. R. A. 1918E, 494. The Supreme Court seems to have taken the view that, because Sabo as assistant foreman, was the immediate superior in authority over Leo, the doctrine of the foregoing cases does not apply. Without expressing any opinion upon this view in its application to cases where the accident occurred because the superior performed a duty which he was employed to perform in a way not reasonably contemplated by his employer, it seems to us quite clear that, where the act causing the injury was not only without the contemplated method of performance, but was also entirely outside the scope of the employment itself, the doctrine has full application, irrespective of the fact that the one who caused the injury was superior in authority within the employment to the one who was injured. We think, therefore, that if Sabo, in throwing the brick, was not doing it in order to get Leo to return to his work, but was doing it simply as what seemed an innocent joke, to scare him and to have some fun with him, quite apart from his return to work, whether before or after it was time to quit, it was in all essential respects like the "horse play" in Hulley v. Moosbrugger, supra. or the assault as a result of "horse play" in Mountain Ice Co. v. McNeil, supra. If this were all there was in the case, it might be necessary to send it back for an express finding of fact upon this point; but our view upon the second point involved renders this unnecessary. 2. Did the accident arise in the course of Leo's employment? Of course, if he deliberately stopped work and recorded himself as leaving at 1:34 a. m., as shown by the time clock, and departed about his own affairs,.whether to go to sleep in his own bed at home, or on a pile of brick in the defendant's dryer house, or to do anything else he chose, there could be no recovery, for obviously the accident did not arise in the course of the employment. But, assuming that his card in the recording clock was punched through mistake or otherwise by some one else, and that what Leo actually did was not to terminate his shift hours of work, but was simply to stop his work, leave his place of work, go 100 yards away from it, and deliberately lie down to go to sleep; did the accident which caused his death three hours afterward, while he continued to sleep and without his having returned to his work, arise in the course of the employment? We think it did not. He had for the time abandoned his employment. It was not a case of an accident resulting from an employee unintentionally falling asleep while performing his work, as in Dixon x. Andrews, 91 N. J. Law, 373, 103 Atl. 410; but it was a case of an employee intentionally stopping and leaving his work and going 100 yards away and deliberately lying down and going to sleep, and remaining asleep away from his work during a period of 3 hours, during which time he was killed by the accident. It is true that Leo was probably very tired and sleepy. He had been off shift all the day preceding the night of the accident, but the night and day before that he had at his own request (he was paid by the hour) worked both the day and the night shifts in succession. But, no matter how good his reason for 'eaving his employment may have been, the controlling fact is that he did leave it, and that the accident to hm occurred while he was deliberately away. It did not, therefore, arise in the course of his employment, within the meaning of the Workmen's Compensation Act. The judgment is reversed. McNUTT v. ADAMS EXPRESS CO. (Court of Errors and Appeals of New Jersey. June 14, 1920.) (Syllabus by the Court.) 1. MASTER AND SERVANT-ESSENTIAL AVERMENTS AS TO APPLICABILITY OF COMPENSATION ACT TO BE PROVED. In an action to recover damages for injuries, under section I of the Workmen's Compensation Act, the plaintiff must aver and prove, in order to avoid the application of section II of the act, that there was an agreement in writing, or a written notice given prior to the acc.dent, that the employees contract of hiring was not made subject to section II; otherwise all such contracts are to be presumed to have been made with reference to it. (For other cases, see Master and Servant, Dec. Dig. § 401.) Appeal from Circuit Court, Camden County. Proceedings under the Workmen's Compensation Act by A. Moulton McNutt, administrator, opposed by the Adams Express Company, employer. Judgment for complainant, and employer appeals. Reversed. Joseph H. Gaskill, of Camden, for apellant. BERGEN, J. The plaintiff seeks to recover damages arising from the death of his intestate resulting from an accident while in the employ of the defendant, and rests his right on section I of our Workmen's Compensation Act (P. L. 1911, p. 134). He had a judgment, entered on the verdict of the jury, from which the defendant has appealed. The plaintiff in his complaint avers that the deceased was in the employ of the defendant; that it was a part of the decedent's duty as employee to assist in pulling a fire truck down an incline, in the ferry house at Camden, NĮ, in case of fire alarm, and in preparation for such duty to take part in a fire drill whenever required; that in performing this duty, under the order of the defendant, he fell and suffered injuries which caused his death. The plaintiff proved sufficient facts to support these allegations. The answer of the defendant was a general denial of the averments in the complaint, except that deceased was in the employment of the defendant when the acc dent occurred which was admitted. At the opening of the case the defndant moved for permission to amend its answer by specifically averring that the contract of employment was subject to section II of our Workmen's Compensation Act, because there was no ex press contract, or notice given, that the agreement of employment was not made with reference to the terms of section II of the act, but this the court denied. At the close of plaintiff's case the defendant moved for a nonsuit, and at the close of the entire case asked for a direction for the defendant, upon the ground that there was no proof to sustain the action under the first section of the act, upon which the plaintiff replied, urging that where there is no proof of an express contract, or of notice given which relieves the plaintiff from the effect of section II, the exclusive jurisdiction to determine the compensation to an employee for injuries arising out of and in the course of the employment was vested in the court of common pleas where the accident, the basis of the suit, happened. The statute has since been altered (P. L. 1918, p. 429) establishing the Workmen's Compensation Bureau, which was amended P. L. 1919, p. 200. [1] The only question presented by this record is whether on July 24, 1917, the date of the injury of plaintiff's intestate, the plainitff, as administrator of the injured employee, can maintain an action under section I of the Workmen's Compensation Act without showing that his contract of employment is not governed by section II, because there was an express contract to the contrary, or that the required notice had been given. Section 9 of the Workmen's Compensation Act (P. L. 1911, p. 136) provides that "Every contract of hiring made subsequent to the time provided for this act to take effect shall be presumed to have been made with reference to the provisions of section II of this act, and unless there be as a part of such contract an express statement in writing, prior to any accident. either in the contract itself or by a written notice from from either party to the other, that the provisions of section II of this act are not intended to apply, then it shall be presumed that the parties have accepted the provisions of section II of this act and have agreed to be bound thereby." [2] Some testimony was taken upon the question of whether defendant should be allowed to amend its plea, and a witness testified that he had talked over the telephone with the claim agent of the defendant, who said that the defendant did not work under section II of the Workmen's Compensation Act. But this evidence was not introduced to sustain the issue, still if it had been, there is no proof that the person talking over the telephone had any authority to make any such statement, and, if he had, it took place long after the accident, and is not the contract or notice intended by the statute, for it was not expressed in any writing prior to the accident, or by a written notice. It is also urged by the plaintiff that a written receipt for wages, signed by the decedent, tended to show that his employment was casual. The receipt contained a notice that the employees of the company were not engaged for a particular length of time, and that the company reserved the right to terminate the service at pleasure; and the party executing the receipt agreed to accept the employment subject to being discharged at any time. There is nothing in this writing which indicates that the person who executed it accepted a casual employment, for under it the services might continue for an indefinite period. The trial court refused the nonsuit, or to direct. principally upon the ground that it was for the jury to say whether the employment was casual or not, and instructed the jury that if it was casual then the plaintiff could not recover. We fail to find in this case any evidence that would justify an inference that the employment was casual. When the plaintiff instituted his action he was subject to the statutory presumption that his intestate was, at the time of his death, working under a contract governed by section II of the Compensation Act, and could not recover under section I unless he was able to overcome that presumption by showing an express contract, or a notice, in writing, made before the accident, that section II did not apply. And the fact that the defendant did not plead the want of these requisites does not help the plaintiff, because it is not necessary to plead a presumption of law. Bennington Iron Co. v. John Rutherford, Jr., 18 N. J. Law, 105, 35 Am. Dec. 528. The present case is substantially like that passed on by this court in Gregutis v. Waclark Wire Works, 86 N. J. Law, 610, 92 Atl. 354, in which Mr. Justice Trenchard says: "Since the complaint does not aver that the contract contained any express statement, in writing, that section II of the act was not intended to apply, nor that any written notice to that effect was given, it is presumed that the parties accepted and were bound by the provisions of that section." The effect of the case is that in an action by an employee for injuries suffered in the course of, and growing out of his employment, he must aver, if he wishes to avoid the application of section II of the Workmen's Compensation Act, an agreement in writing, or a written notice given, such as is required by the statute, and what he was bound to aver as a cause of action he must prove, and if he fails in this he has not made out his right to recover. Not having done that in this case, defendant was entitled to a direction in its favor, and therefore the refusal to accede to the defendant's request was an error for which this judgment must be reversed; and it is so ordered. Minturn, J., dissenting. RANDOLPH v. HAMMERSLEY MFG. CO. (No. 42.) (Court of Errors and Appeals of New Jersey. June 14, 1920.) * 111 Atlantic Reporter 15. (Syllabus by the Court.) 1. MASTER AND SERVANT—AGREEMENT TO PAY COMPENSATION HELD NOT SUPPORTED BY EVIDENCE. This suit was brought under the Workmen's Compensation Act, alleging in the complaint an agreement to pay compensation for the injury, within one year after the accident, as provided by the statute held, there was no evidence from which such an agreement could be inferred. The payments of wages and the doctor's bill alone is not sufficient from which such an implied agreement can be inferred. (For other cases, see Master and Servant, Dec. Dig. § 405[3].) 2. CASES DISTINGUISHED. The cases of Holzapfel v. Hoboken Mfrs. R. Co., 92 N. J. Law, 193, 104 Atl. 209; O'Brien v. Scandinavian-American Line, 109 Atl. 517, decided March 1, 1920. Dupont v. Spociaio, 90 N. J. Law, 438, 101 Atl. 407, distinguished. Appeal from Supreme Court. Suit by Earle F. Randolph against the Hammersley Manufacturing Company. Verdict was directed for defendant, and plaintiff appeals. Affirmed. Collins & Corbin, Geo. S. Hobart, and Edward A. Markley, all of Jersey City, and Harry Weinberger, of Passaic, for appellant. Clarence B. Tippett, of New York City, for respondent. |