Willis v. State Industrial Commission , 78 Okla. 216 ( 1920 )

I dissent from the opinion of the majority in the application of the law to the facts in this case. I do not question but that the injury in the instant case to the employe was in the course of his employment, but I do not believe from the facts and circumstances of the case that it arises out of his employment. As to an injury to an employe arising out of his employment, Honnold, at section 115, states as follows:

"The use of the words 'arising out of,' or words of similar import, makes it a condition precedent to the right to recover compensation that the occurrence shall have resulted from a risk reasonably incident to the employment; that there be causal connection between the conditions under which the employe worked and the resulting injury. While the occurrence need not have been foreseen or anticipated, it must appear after the event to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence."

In this case there is no contention in the briefs or finding in the opinion of the majority that there was a connection between the throwing of a piece of dynamite into the fire which caused the injury, and the work being done there by the party injured or by his fellow workman who threw the dynamite into the fire. The opinion of the majority is in error in citing Hulley v., Moosbrugger, 87 N.J. Law, 103, 93 A. 79, for the reason the opinion in that case is overruled and reversed in the same court at a later date, 88 N.J. Law, 161, 95 A. 1007, L. R. A. 1916C, 1203. That was a case in which it was claimed that the injury suffered arose out of the employment, and it goes into detail as to when an injury arises out of the employment, and is as follows:

"It 'arises out of' the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it 'arises out of the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work, and not common to the neighborhood. It must be incidental to the character of the business, and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence."

Applying this law to the facts of the instant case, where is the causal connection between the throwing of the piece of dynamite into the fire and the work being done and the party injured? Was the throwing of the piece of dynamite into the fire a natural incident of the work? Would the injured party have been equally exposed to this hazard apart from his employment? Was the causative danger, that is, of throwing the dynamite into the fire, peculiar to the work and not common to the neighborhood? Was it incidental to the character of the business and dependent on the relation of master and servant? Did the throwing of the dynamite into the fire have its origin in the risk connected with the employment or flow from that source as a rational consequence? If so, compensation should be allowed; if not, it should be refused. In my judgment the resulting injury from the throwing of dynamite into the fire by a fellow workman, in play, is not an injury arising out of the employment. The throwing of the dynamite into the fire was not a natural incident to the risk, neither was it peculiar thereto. It is stated in the opinion as a reason why petitioner should recover:

"If it be as stated in the text quoted supra, 'that the words "out of" point to the origin and cause of the accident or injury,' and the commission having found that the injury was caused by a fellow employe, and it being admitted that the petitioner was an employe and was where he had a right to be, it seems to us that it necessarily follows that the accident was due to the employment and resulted from a risk reasonably incident to the employment."

If this be a correct doctrine, then an employer becomes an insurer if his servant is at a place he has a right to be when injured and is injured by a fellow servant, regardless of what may have caused the injury, for the reason that it is stated that when these two conditions exist, then it necessarily follows that the accident arises out of the employment and from a risk reasonably incident to the same. I do not believe this is sound reason or correct law. It merely goes a portion of the way. It leaves out the question whether or not the injury arises out of the employment, which is the only issue to be tried in this case. Neither in the briefs nor in the opinion of the majority is there any contention that the throwing of the dynamite into the fire had any connection with the work being done. It was totally foreign to same. The throwing of the same into the fire was merely a prank of a fellow employe, commonly called horseplay or skylarking.

Whether or not an employe can recover for an injury brought about through a joke, horseplay, prank, or skylarking of a fellow employe is set forth in section 121, Honnold:

"Unless the workman is actually engaged at the particular time in the performance of some duty which contributes to the injury, an injury to a workman from skylarking or horseplay or practical joking, though it may arise in the course of, cannot be said to arise out of, the employment, whether the injured person instigated the occurrence or took no part in it."

It will thus be seen that the general rule is that recovery cannot be had for an injury brought about by skylarking or horseplay or a fellow employe. There are many opinions upholding this doctrine, too numerous to mention. The footnotes of Honnold cite many.

Where an employe, who was peculiarly susceptible to being tickled, was going down a flight of stairs with a filled bucket and one of his associates punched him in the back with a newspaper, causing him to make a sudden movement and to fall, injuring one knee seriously, it was held that the injury was in the course of, but did not arise out of, his employment. (Coronado Beach Co. v. Pillsbury (Cal.) 158 P. 212)

A fellow employe directed a trick camera toward the claimant and a missile from the camera hit him in the eye and the sight of the eye was destroyed. It was held that the injury did not arise out of the employment. (Fishering v. Pillsbury, 172 Cal. 690,158 P. 215.)

An injury from a stream of hot water turned on an employe by a fellow employe as a practical joke was held not to arise out of the employment. (Vittorio v. California Battery Co., 3 Cal. Industrial Commission, 26.)

Our laws relating to workman's compensation are similar to the New York statute. Laurino v. Donovan et al., 170 N Y Supp. 340, 183 App. Div. 168, is a case very similar to this case. In that case a fellow employe injured another by the explosion of a percussion cap with which he was experimenting. The court held:

"Where a chauffeur, doing his master's work in a garage, was injured by the explosion of a percussion cap brought in by another chauffeur, his fellow servant, with which the latter was experimenting, the injury to the first chauffeur did not arise out of his employment within the Workman's Compensation Law to entitle him to an award."

The authorities on this point are collected in review in Ann. Cas. 1913C 1; 1914B 498; 1915B 1293; 1917C 760; 1918B 768; and 191SE 1164. In the many cases cited in the opinion of the majority none hold to the contrary of this general rule, but it is held in some that there may be circumstances which will take it out of the general rule; for instance, in the case of Thomas v. Proctor, cited. Therein a girl employe was riding upon a truck and fell therefrom and was injured. The riding upon the truck seems to have been in play. The custom of riding this truck at the noon hour was within the knowledge and with the express consent of the foreman, and, the court found, was one of the conditions upon which the business was carried on, and for that reason the case did not fall within the general rule, though the girl was injured while at play. It has been further held that where horseplay has grown into a custom and to the knowledge of the employer, he may be held liable for injury resulting therefrom. White v. Stockyards (Kan.) 177 P. 522. In all these cases cited there is some circumstance connected with the injury which took the case without the general rule. There is no case cited, in which there was no circumstance taking the case out of the general rule, in which the courts have ever held that an employe can recover where the injury is by a fellow employe while engaged in horseplay or skylarking.

In this case there are no circumstances of any kind whatsoever taking the case out of the general rule. It was a prank of a fellow employe, commonly called horseplay or skylarking, pure and simple, and nothing else; and for that reason, and in keeping with the authorities above cited as I understand them, I do not believe that the petitioner should recover in this case.

In the opinion of the majority there is laid down as a principle of law that if one is the victim of the prank of a fellow employe to which he, the injured employe, is not a party, that he should be allowed compensation. To fortify this principle there are two authorities cited. An examination of the Maryland case throws no light upon the subject whatsoever, as there is no contention in that case that the employe was injured by a prank of another employe. The other, 53 Amer. Law Review, page 75, is a quotation from a paper prepared by the Commissioner of the Workmen's Compensation Board of the Province of Ontario and read at an international meeting of industrial boards at Madison, Wisconsin, in which the writer stated:

"Our board in Ontario has adopted the rule in these cases if while he (the injured party) is going about his duties he is the victim of another's pranks to which he is not in the least a party, we do not deny him compensation."

This paper states that a board — not a court — has adopted a rule — not construed law — that an employe is not denied compensation if injured by the prank of a fellow employe if he, the injured employe, is not a party to the prank.

There is to the contrary of this principle Section 121 of Honnold on Workmen's Compensation, above cited in this opinion, to the effect that if the injured party was injured by horseplay or prank of a fellow workman, he cannot recover even though he took no part in it. In Hully v. Moosbrugger, 88 N.J. Law, 161, 95 A. 1007, L. R. A. 1916C, 1203, this identical issue was passed upon, the court holding:

"An employer is not liable, under the Workmen's Compensation Act, to make compensation for injury to an employe which was the result of horseplay or skylarking, so called, whether he injured or deceased party instigated the occurrence or took no part in it; for, while an accident happening in such circumstances may arise in the course of, it cannot be said to arise out of, the employment."

Similar holdings are made in the following cases: Knopp v. Amer. Car Co., 186 Ill. App. 605; De Filippis v. Falkenberg, 155 N.Y. Supp. 761.

I do not believe that this principle of law that a fellow workman may recover if an injury is caused by the prank of a fellow workman if he, the injured party, was not a party to the prank, is upheld by the weight of judicial decision; but all appellate courts speaking thereon, as far as I have been able to find, have spoken to the contrary. I believe that the opinion of the majority in this case gives no meaning to that part of the statute which states that the injury must arise out of the employment.

I am authorized to state that PITCHFORD and BAILEY. JJ., concur in this dissenting opinion.