Sica v. Retail Credit Co.

Oppenheimer, J., delivered the opinion of the Court. Vincent Sica, the appellant, was seriously injured at an employer-sponsored picnic. The Workmen’s Compensation Commission held that his injuries were not compensable under the Workmen’s Compensation Act because they did not arise out of and in the course of his employment. On appeal to the Superior Court of Baltimore City, Judge Dulany Foster, sitting without a jury and trying the case on the record before the Commission, affirmed the Commission’s decision.

The case is one of first impression in this State. The facts for the most part are not disputed. Sica was employed by the Retail Credit Company in March, 1963, as a claims investigator. (The company, and the Travelers Insurance Company, its insurer, are the appellees; the company is hereinafter referred to as the employer).

In the interview which led to Sica’s employment, he was told by the employer’s manager that he would be paid for vacation and medicine and life insurance, and that there would be an annual picnic during the summer and a dance during the Christmas holidays. His starting salary was $325 a month plus car expenses of about nine cents a mile. At the time of the accident, Sica’s monthly salary was $410 plus a bonus. The employer works for insurance companies and a claims investigator such as Sica investigates claims for these companies.

Most of Sica’s work was out-doors; his hours, technically, were from 8 or 8:30 A.M. to 4:30 P.M., but, because of the work-load, he had to work many extra hours. The hours of employees such as Sica are not regulated; their initiative and enthusiasm are a necessary part of their work. The employer’s offices are open every Saturday, with a skeleton crew. Sica was not ordered or required to come in on Saturday, but he often did so, to get his work done.

During the month of February, 1965, preparations were made for the annual picnic. It was a joint affair of the employer’s two Baltimore offices. The picnic was arranged by a committee of employees, with the authorization of the employer’s management. In accordance with the usual procedure, the chairman ⁶¹⁰ of the committee.

Mr. Berigtold, a supervisor, was chosen by the employees, with the authorization of the employer. All the expenses of the picnic were paid by the employer, but the employees provided their own transportation and no car expenses were allowed for the trip. The picnic was planned for and held at Bay Ridge Beach, on the Chesapeake Bay, near Annapolis, some 30 miles from Baltimore, on Saturday, June 12, 1965. A contract was signed for the use of the beach facilities between Berigtold and Bay Ridge Beach, Inc., the owner of the beach resort.

Details of that contract and the evidence with respect thereto will be discussed hereafter. A poster announcing the picnic was installed in the employer’s office where everyone could see it, one or two months before the picnic. Attendance was entirely voluntary, but the employer’s manager and assistant manager addressed the employees several times, urging them to come. Those who planned to attend were asked to sign the poster and to indicate the number of persons they were bringing.

The number of employees who came to the picnic was 108; with families and friends, the total number was about 250. The employer’s Baltimore manager and several supervisors were present. The cost of the picnic, all of which was paid by the employer, was close to $700. The employer’s home office allows $10 a year per employee for the Christmas function and the picnic, all of which is deducted, for income tax purposes, as a business expense.

Sica rode to the picnic with his supervisor, Palmer Shelton, in the latter’s automobile. At the picnic, the time was spent in swimming, eating, playing ball, and chatting. Harry Coleman, the manager of one of the employer’s Baltimore offices, testified that the picnic is a “renewal friendship type of thing.” There was no meeting during the picnic; no business was transacted and no speeches were made. After the lunch provided by the employer, Sica took part in a ball game, from about three to four o’clock.

He and Shelton entered the swimming area at seven-thirty, or a little before. It was their first swim of the day. Daylight savings time was in effect; June 12 was close to the longest day of the year, and it did not get dark until about nine o’clock. Bay Ridge Beach ⁶¹¹ was open until nine, and the admission ticket which the employer had given Sica and the other employees entitled them to stay until that time.

The swimming portion of the resort was a part of the Chesapeake Bay, enclosed by a wire mesh attached to pilings. Sica climbed up on one of the pilings and dived in. The water at the piling was only about five feet deep. Sica struck his head on the bottom, broke his neck, and, as a result of the accident, has become permanently and totally disabled.

In his opinion affirming the Commission’s decision disallowing Sica’s claim, Judge Foster found that the outing, as far as the employer was concerned, had terminated at six o’clock; this, in the Judge’s opinion, was the determining factor. He found, also, that the employer did not derive any substantial direct benefit from the activity. The Judge’s second conclusion goes to the question of whether the injury arose “out of” Sica’s employment; the first conclusion goes to the question of whether the injury was sustained “in the course of” his employment. Both issues must be found in the employee’s favor to bring the claim for compensation within the operation of the statute. “The words ‘out of’ refer to the cause or origin of the accident, while the phrase ‘in the course of’ refers to the time, place and circumstances under which it occurs * * * Their meaning and effect, however, depend on the circumstances of each particular case.” Coates v. J. M. Bucheimer Co., 242 Md. 198, 201 , 218 A. 2d 191 (1966), and cases therein cited.

This Court has often considered the scope of judicial review in Workmen’s Compensation cases. “Where the terms and manner of employment are disputed and different inferences may be drawn therefrom, the issue is a mixed question of law and fact, to be determined by the trier of the facts, under proper instructions, but where the essential terms and manner of employment are undisputed, the question is one of law for the court.” Tavel v. Bechtel Corp., 242 Md. 299, 303 , 219 A. 2d 43 (1966), and cases therein cited. When the question is one of law, the provisions of Maryland Rule 886 (a) that where an action has been tried by the lower court without a jury, the judgment of the lower court will not be set aside on the evidence unless clearly erroneous, does not apply. Suburban Properties, Inc. v. Rockville Council, 241 Md. 1, 6 , 215 A. 2d 200 ⁶¹² (1965); Clayburn v. Soueid, Inc., 239 Md. 331, 337-38 , 211 A. 2d 728 (1965); Space Aero Products Co. v. Darling Co., 238 Md. 93, 106 , 208 A. 2d 74, 699 , cert. denied, 382 U. S. 843 (1965); and cases therein cited. The decision of the Commission is prima facie correct, and the burden of proof is upon the party attacking it.

Code (1957) Art. 101, § 56 (c). However, when all that is before the lower •court is the transcript of the proceedings before the Commission, as in this case, and the facts are not in dispute, the statutory provision only means that the party attacking the Commission’s decision has the burden of persuading the court that the Commission decided incorrectly in construing the law applicable to the facts. Blake Constr. Co. v. Wells, 245 Md. 282 , 225 A. 2d 857 (1967); Williams Constr.

Co. v. Bohlen, 189 Md. 576, 580 , 56 A. 2d 694 (1948). In determining whether an accident arose out of the employment, the Court “has endeavored to keep in mind both the legislative mandate that the Workmen’s Compensation Act shall he so interpreted and construed as to effect its general social purpose and the concomitant consideration that workmen, like •other members of the general public, are not insured against the common perils of life.” Tavel, supra, at 242 Md. 303 . During the last decades, the spectrum of the employer-employee relationship has been greatly widened, but the coverage of the .Act has not been extended. As in other fields of the law, the problem is to apply the governing legal principles to the particular facts.

In the case before us, the enlarged scope of the relationship is one of the facts to be considered. “The word ‘employment’ as used in the Workmen’s Compensation Act, includes not only the actual physical labor but the whole period of time or sphere of activities.” Watson v. Grimm, 200 Md. 461, 466 , 90 A. 2d 180 (1952). As that case illustrates, :an accident may be compensable when it occurred on a trip made for the benefit of the employer as an incident of the employee’s duties, even though at the same time the employee was •serving some purpose of his own. 200 Md. at 470-71 . The modern institution of the “coffee break” benefits the employer, in maintaining the employees’ morale, as well as the participating employees. There can be little question but that an accident sus ⁶¹³ tained during such an interval on the portion of the employer’s premises set aside for that activity arises out of the employment. 1 Larson, Workmen’s Compensation, § 21, and cases therein cited.

See Coates, supra and Spencer v. Chesapeake Paperboard Co., 186 Md. 522, 526-27 , 47 A. 2d 385 (1946). There have been many cases in other jurisdictions as to whether social activities are sufficiently work-related so as to be an incident of employment. We agree with the conclusion of counsel for both the appellant and the appellees in their able arguments, that Larson, supra, has accurately analyzed the holdings of those cases in the following statement: “§ 22.00 Recreational or social activities are within the course of employment when (1) They occur on the premises during a lunch or recreation period as a regular incident of the employment ; or (2) The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or (3) The employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.” No useful purpose would be served by citing and discussing all the cases comprehensively set forth in Larson, supra, which, on varying factual situations, hold that the social activity during which an employee sustained an accidental injury was or was not sufficiently work-related to be compensable. We find recent opinions of the highest courts in Massachusetts, New York and New Jersey particularly apposite.

Moore’s Case, 330 Mass. 1 , 110 N. E. 2d 764 (1953), involved a claim for compensation of an employee who was injured while attending a Christmas party given by her employer. The party was held at the plant in accordance with the custom of the employer. It was attended only by the employees, with one or two exceptions. All the employees were invited but attendance was optional.

No work was done at the factory on ⁶¹⁴ the day of the party and the employees were not paid for that day. The employer paid for the liquor served during the party. The employee was injured when she lost her balance and fell while dancing. The Industrial Accident Board decided that the employee’s injury did not arise out of or in the course of her employment.

On appeal, the Superior Court affirmed the dismissal of the claim. The Supreme Judicial Court of Massachusetts remanded the case to the Board. Justice Spalding, for the court, said: “This court, in considering cases involving injuries sustained outside the formal scope of the employee’s duties, and courts in other jurisdictions which have passed upon the compensability of injuries sustained during organized recreational activities have evolved a number of criteria which may be resorted to in determining whether the employment and the recreation are related with sufficient closeness to warrant an award. For convenience they may be enumerated as follows: (1) The customary nature of the activity, * * * (2) The employer’s encouragement or subsidization of the activity, * * * (3) The extent to which the employer managed or directed the recreational enterprise, * * * (4) The presence of substantial pressure or actual compulsion upon the employee to attend and participate, * * * (5) The fact that the employer expects or receives a benefit from the employees’ participation in the activity, whether by way of improved employer-employee relationships, * * * through greater efficiency in the performance of the employees’ duties, * * * by utilizing the recreation as partial compensation or additional reward for their work, or for advertising the employer’s business, or as an actual adjunct of his business.

Apart from the existence of employer compulsion, which often might warrant or even require a finding in favor of the employee, the presence or absence of any one of the other factors listed would not necessarily determine the issue. Nor, indeed, is the foregoing enumeration meant to be exclusive of other factors which might appear in a given case. What is re ⁶¹⁵ quired in each case is an evaluation of the significance of each factor found to be present in relation to the enterprise as a whole. Upon such an evaluation must the decision as to the closeness of the connection between the employment and the recreation ultimately rest.” (Asterisks indicate citations omitted). 330 Mass. at 4-5 , 110 N. E. 2d at 766-67 .

The case was remanded for further proceedings and more detailed findings in connection with the criteria which the opinion sets forth. 1 In Wilson v. General