Block v. Fruehauf , 146 Ind. App. 70 ( 1969 )

Hoffman, J.

We are here concerned with the review of a negative award of the Industrial Board of Indiana. The Industrial Board, in denying compensation to the claimant-appellant, made the following findings:

“That on the 18th day of January, 1968, plaintiff was in the employ of the defendant at an average weekly wage in excess of $85.00; that on said date he sustained personal injury by reason of an accident arising in the course of his employment, but not arising out of his employment; that at the time of said accidental injury the plaintiff and one of his co-employees were involved in horse play; that as a result of his said accidental injury plaintiff became temporarily totally disabled, and is so temporarily totally disabled at this time.”

This finding was based on the following facts:

The evidence most favorable to the appellee established that appellant worked for appellee as a layout man. On the date of the accident in question, appellant was standing at his workbench which was located some 45-feet north of an overhead door. There was an aisle leading directly to the door from appellant’s bench. Another employee of appellee approached the appellant from the rear, opened his apron strings causing the strings to loosen and his apron to fall down, and then ran in a southerly direction, down the aisle toward the door. A number of witnesses testified that appellant gave chase, during the course of which he threw his gloves at the “prankster.” At the end of the aisle, appellant lost his balance while attempting to turn the corner, pitched forward and struck his neck on the overhead door. As a result of the accident, the sixth or seventh vertebra in appellant’s neck was broken and dislocated forward causing a partial paralysis.

Appellant applied to the Industrial Board for compensation on April 3, 1968. Appellee, in its first paragraph of answer, denied liability, and in its second paragraph of answer alleged the appellant’s injuries resulted from his participation in “horseplay,” and, therefore, did not arise out of or occur in the course of his employment.

A hearing was held before Industrial Board Member Joseph P. Miller, following which a finding was entered for appellee. Appellant then filed his application for review by the Full Board. Following the hearing before the Full Board, the findings set out above were entered and this review followed. The findings made are sufficient and are the only findings required by the Act.¹

■ r Appellant assigned as error 1) that the award is contrary to law; and 2) that the Industrial Board erred in denying appellant’s motion to strike appelleee’s second paragraph of answer. . .

' Specifically, appellant alleges that the award is contrary to law for the following reasons:

1. “Regardless of whether horseplay is found to have occurred, Indiana cases have held that horseplay on the premises where work is performed is the natural condition of employment and therefore an injury to a non-instigating employee arises out of the employment.”

2. “Defendant has wholly failed to plead and prove a wilful violation of a Rule by Plaintiff as a ground for . denial of compensation to Appellant and the Award is erroneously based on a defense which has been waived by • reason by [of] such failure.”

Next, appellant alleges that the Industrial Board erred in denying appellant’s motion to strike appellee’s second paragraph of answer for the following reasons:

1. “An employer can raise the defense of wilful rule viola-lation only by properly pleading the existence of rule violated and the conduct of the employee in violation thereof.”

'2. “Appellee by failing to file his special defense more than twenty-one • days prior to hearing waived the defense.”

We shall first consider the Board’s ruling on the motion to strike. We cannot agree with appellant’s theory that “horse- . play” could only have been raised as a special defense. The fact is that the burden is on the claimant to establish that the accident arose out of and in the course of his employment. See: Tom Joyce 7 Up Company v. Layman, 112 Ind. App. 369, 375, 44 N. E. 2d 998 (1942). In making an award, the Industrial Board has the obligation to determine that the claimant has sustained his burden of proving that an accident occurred in the course of and arising out of his employment. A failure of proof on any one of these elements compels a negative finding by the Board.

The inference arises from the finding of the Board that appellant did not sustain his burden of proving that the accident arose out of his employment for the reason that áppellánt was engaged in “horseplay” at the time of the accident. This brings us to the question raised by appellant’s first assignment of error: Did the Industrial Board erroneously apply the legal criteria in arriving at the ultimate fact conclusion, that appellant was engaged in “horseplay” at the time of the accident?

We are not at liberty to weigh the evidence. Achenbach v. Review Bd. of Ind. Emp. Sec. Div., 242 Ind. 655, 660, 179 N.E. 2d 873 (1962); Bootz Mfg. Co. v. Review Bd. of Ind. Emp. Sec. Div., 237 N.E. 2d 597, 601, 143 Ind. App. 17, (1968), (Transfer denied). Thus, we are only here concerned with appellant’s definition of “horseplay.”

We agree with appellant’s definition, above, as far as it goes, but it does not go far enough. It is certainly true that one who is the innocent victim of another’s prank may be compensated. In re Loper, 64 Ind. App. 571, 574, 116 N.E. 324, (1917); Western Union Tel. Co. v. Owens, 82 Ind. App. 474, 146 N.E. 427 (1925).

It is also true that where the employer has acquiesced in the particular conduct, or “horseplay”, that the employee may be compensated. Kokomo, etc. Wire Co. v. Irick, 80 Ind. App. 610, 141 N.E. 796 (1923); Kunkel, Trustee, etc. v. Arnold, 131 Ind. App. 219, 234, 158 N.E. 2d 660 (1960), (Transfer denied). As a corollary to this approach, our courts have held that where “horseplay” may be expected to occur becausé of the type of activity the employee is engaged in, i.e., áir hose “gooses”, then the employee may be compensated.

However, this court has never gone so far as to say that where the “horseplay” was not acquiesced in by the employer, not a natural condition of the employment, and where, in fact, the employee participated in the “horseplay”, and was not, therefore, an innocent victim, that the employee should be compensated. To the contrary, we have consistently denied compensation in such cases for the reason that such activity does not arise out of the employment.

In Western Union Tel. Co. v. Owens, supra, this court specifically distinguished the situation where an employer might anticipate “horseplay” and make appropriate rules to govern such conduct, and the situation where, as in the instant case, there is no connection between the employment and the conduct.

Appellant has pointed out that we are to give liberal construction to the Workmen’s Compensation Act. The limits of liberality have already been reached in the “horseplay” analysis. Once the connection between the employment and the “horseplay” conduct becomes so tenuous that there is no apparent causal factor, to permit compensation would be to disregard even the most liberal boundaries of the limitation, “arising out of and in the course of the employment.”

There was no error in the award of the Industrial Board, and the award, therefore, must be affirmed.

Award of the Full Industrial Board of Indiana affirmed.

Lowdermilk, P.J., Carson and Cooper, JJ., concur. Sharp, J. concurs in result.

White, J., dissents with opinion, in which dissent Pfaff, C.J., concurs in result.

Sullivan, J., dissents with opinion.

1 . Acts 1929, ch. 172, § 2, p. 536, as last amended by Acts 1963, ch. 387, § 1, p. 1025, Burns Ind. Stat., Anno. § 40-1202.