Opinion
December 28, 1962
Appeal by self-insured employer from a disability award. Claimant broke his wrist while playing softball in an industrial softball league. The only question is whether his injury arose out of and in the course of his employment, and, more particularly, the question is whether Matter of Wilson v. General Motors Corp. ( 298 N.Y. 468), or Matter of Tedesco v. General Elec. Co. ( 305 N.Y. 544), controls the instant case. Of course Tedesco did not overrule Wilson, but merely distinguished it. In the Spring of 1958 and of 1959 two employees approached the employer's personnel manager for assistance in setting up a softball team. They were advised that the employer would not become involved but that he would ask for an initial financial contribution. Nothing further was done until 1960 when the personnel manager was again approached and again gave the same reply. It is undisputed that he told the inquiring employees that the employer wanted nothing more to do with the team than to give it initial financial assistance and that the employees must assume full responsibility for the team's activities. The employer contributed $225, of which $195 was used for uniforms and equipment and $35 for the entry fee in a softball league. The employees on their own initiative had the word "Nabisco" placed on the backs of their uniform jerseys. The games were played in the evening, outside working hours, in a town park away from the employer's premises. There is no evidence whatever of company dominance or control or power to halt the softball activities, or that it either sought or gained any business advantage by the softball activities of its employees. We think the facts of this case fall squarely within the determination in the Matter of Wilson, and fall far short of the facts present in Tedesco. Award reversed and the claim dismissed, with costs to appellant against the Workmen's Compensation Board. Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ., concur.