WRIT OF ERROR to the Superior Court of Cook County; the Hon.
D.S. McKINLAY, Judge, presiding.
MR. JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 19, 1955.
This court has allowed the petition for writ of error filed by the claimant, Kenneth Lejman, to review a judgment of the superior court of Cook County, which set aside the workmen's compensation award entered by the Industrial Commission against claimant's employer, Jewel Tea Company, Inc., hereinafter referred to as defendant.
The sole issue is whether claimant's accidental injuries, sustained while playing baseball with a team of company employees, in an intra-company league competition, after working hours and off company premises, arose out of and in the course of his employment under the terms of the Workmen's Compensation Act.
From the record it appears that Kenneth Lejman, hereinafter referred to as plaintiff, sustained certain serious injuries while participating in a Jewel Tea Company league softball game. This league consisted of 15 teams, organized from among the employees of defendant's 153 stores in the Chicago area. The stores were divided in three divisions, each consisting of five districts, and teams were established in each district. The district teams played each other to establish a divisional champion, and ultimately the divisional champions competed to determine the league champion of the year. The divisional championship teams were awarded small trophies and the league champions were presented with larger trophies by the executives of the Jewel Tea Company at a special function. Each team was named in part after the district manager, and the team on which plaintiff played was known as "Jeffrie's Gems," since Paul Jeffreys was the district manager. He appointed the manager-captain of the team, who, in turn, selected the players from among the full-time employees in stores within the particular district. The company, since 1949, provided balls, bats, and T-shirts bearing the district team name on the front, and the emblem "Jewel Food Stores" on the back. The employees furnished their own shoes, jackets, caps, and pants. There were no facilities for playing on company premises in most districts, and the games were held at public ball parks, with no admission charge or accommodations for the spectators, who were mostly friends and relatives of the players. No money was received by the team for playing, nor were they granted any time off from their work for practice.
After the teams were organized there was an annual dinner meeting, held on the company premises and paid for by the company, and attended by all the managers of the teams and the personnel chief of the company, at which the season schedule was arranged and rules adopted for games among the Jewel teams. These scheduled games were the only games played by the teams, since the company discouraged the teams from joining the Industrial Soft Ball League. The former company personnel chief testified that the ball games were not used as any advertising media, but that it was part of the program of maintaining a good state of welfare that the athletic activities were encouraged. He stated, "We felt that anything that drew Jewel people together in a social way promoted cooperation and furthered the joint effort of all of us."
Information about the games was disseminated through a weekly company publication, The Flash, distributed to all employees, and also by announcements on the special program for Jewel Tea Company employees each morning on the company operated FM radio station, WMOR, which was listed in the newspaper. The championship game was further publicized by photographs and written accounts in the company's monthly publication, The Crusader, delivered to all employees.
With reference to the particular team on which plaintiff played, it appears that the district manager, Paul Jeffreys, who, as part of his duties, is charged with recommending promotions among employees in the district, designated Woody Woodruf, an employee in one of the stores in the district, to organize and run that team. Jeffreys also made up a schedule of games for the entire division. According to the evidence there was some difficulty in getting enough men out for the team, and Woodruf, on his day off, called upon the employees in the various stores in the district, during business hours, asking them to participate. When Woodruf asked plaintiff, he replied, "Not this year." Whereupon Woodruf said, "Why not? Don't you want to play any more? Haven't you any spirit?" Plaintiff stated that Woodruf "made me feel like a fool, so I went out for the team."
On July 24, 1950, while playing in a scheduled softball game between the "Jeffrie's Gems" and another intra-company team, on a public playground, after his hours of employment, plaintiff was seriously injured while sliding into third base. For that injury plaintiff sought compensation under the Workmen's Compensation Act and instituted this proceeding.
The arbitrator denied the claim on the ground that plaintiff failed to prove that the accidental injury arose out of and in the course of his employment. Additional evidence was adduced on review, and the Industrial Commission entered an award allowing plaintiff a sum for temporary total disability, and further sums for the permanent loss of use of 50 per cent of the left arm and 50 per cent of the left leg, and for medical, surgical and hospital care. The superior court reversed the commission, and held that unless the playing was compulsory or was done on company time and paid for as part of the employee's duties, the injury could not be deemed to arise out of and in the course of the employment.
In this proceeding plaintiff argues that it was a question of fact as to whether or not the accidental injury in the case at bar arose out of and in the course of the employment, hence, the finding of the Industrial Commission, unless against the manifest weight of the evidence, was binding and conclusive, and the superior court was without authority to set it aside; that under the facts in this case according to the greater weight and trend of authority the accident could be deemed to arise out of and in the course of employment as a matter of law; and that the Workmen's Compensation Act is a remedial act, which should be liberally construed.
Defendant, however, argues that the act does not make the employer an insurer of the safety of his employees at all times, but provides compensation only for industrial accidents arising both out of and in the course of the employment; that to extend the provisions of the act and impose liability upon the facts in the instant case, or upon employers who aid in and provide recreational or athletic facilities for employees for the essential purpose of aiding in the health, morale and good will between employees and their employers, would be judicial legislation and would violate not only the language of the act, but its beneficial purposes. Defendant contends further that the essential dispute herein is not as to the facts in the case, but what the facts show as a legal conclusion, hence, the court is not bound by the legal conclusions of the Industrial Commission; and that plaintiff did not establish that the injuries sustained while playing softball after his hours of employment and off the employer's premises, in a public park, voluntarily and for which he was neither hired nor paid, arose out of and in the course of the employment.
In determining the rights of the parties herein, it is evident that plaintiff has the burden of establishing by positive evidence, or by evidence from which the inference can fairly and reasonably be drawn, that he sustained accidental injuries arising out of and in the course of his employment. While the findings of fact of the Industrial Commission are conclusive upon this court unless they are manifestly against the weight of the evidence, the legal conclusions of the commission, based upon such findings, are subject to review by the courts. (Dietzen Co. v. Industrial Com. 279 Ill. 11; Northwestern Yeast Co. v. Industrial Com. 378 Ill. 195.) This court has not previously adjudged the issue presented herein of whether injuries sustained while participating in a softball league of company employees, after working hours, off the employer's premises, can be deemed to arise out of and in the course of employment. Nor do we regard the case of Becker Roofing Co. v. Industrial Com. 333 Ill. 340, cited and relied upon by defendant, as determinative, since it did not involve an accident suffered by an employee while participating in any activity sponsored by the employer, but concerned only an injury while en route to a company picnic. Inasmuch as employees may not ordinarily recover for injuries sustained while going to and from their place of employment, the liability can be no greater for injuries sustained while going to or from a picnic. A review of the cases in other jurisdictions reveals no uniform rule pertaining to all company league cases and the conclusions vary depending upon the degree of employer organization, supervision, pressure, actual or inferred, and benefit from the particular recreational activity.
These considerations were articulated by the court in Holst v. New York Stock Exchange, 252 N.Y. App. Div. 233, 299 N.Y.S. 255, where compensation was allowed an employee injured while playing soccer after working hours on a team recruited from employees of the company, which assisted in organizing the team and allowed time off for games and practice. The court stated at page 234: "We are not required to decide whether the employer was actuated by a belief that the venture was wise because of its advertising features, or because of the improved health and morale of the employees. The maintenance of the teams was a matter of business, not ...