201 P. 931 | Cal. | 1921
This is a proceeding in certiorari on a petition by the Great Western Power Company of California, a corporation, to review the action of the respondent Industrial Accident Commission allowing an award against petitioner in favor of respondent E.L. Holbrook for injuries received by him while employed by petitioner.
Respondent Holbrook was employed by petitioner in the capacity of pumpman at Belden, California. While in the performance of his duties he was walking from the tool-house to a shaft or tunnel in which he was working. On his way to the shaft he passed over a board platform on which two fellow-workmen were engaged in a friendly wrestling match. The scuffling was not caused by any dispute or altercation over the work or over anything connected with the *296 employment, and respondent was not participating in it. The wrestlers accidentally fell on him and broke his left leg. He was incapacitated for two months, and applied to the Industrial Accident Commission for compensation under the Workmen's Compensation, Insurance and Safety Act. A hearing was had by that body and it was found the respondent sustained injury occurring in the course of, and arising out of, his employment, and that he was entitled to a benefit of $160.69. Petitioner applied for rehearing before the Industrial Accident Commission, which was denied. This petition followed.
Petitioner contends that "said commission in rendering said decision and entering said award acted without and in excess of its powers and that the order and decision are unreasonable and that the findings of fact of the said commission in said proceeding do not support the order, decision or award here sought to be reviewed." It insists that "In the case at bar, there are absolutely no facts or circumstances to take this case out of the general rule uniformly followed both in England and in the United States that injuries resulting from 'horse-play' among employees whether the injured party is a participant or not do not 'arise out of the employment.' " In support of this position are cited Coronado Beach Co. v.Pillsbury,
Respondents assert: "We frankly concede that the decision of the commission is inconsistent with the ruling of this court inCoronado Beach Co. v. Pillsbury,
In support of this position respondents cite authorities from other jurisdictions decided since the above-mentioned cases. Petitioner, however, asserts that "These last-mentioned cases have been cited with approval in a very large number of decisions from the highest courts of many of the states of the land. In the decisions referred to by respondents herein, which do not follow the foregoing cases, the court has had great labor to create and point out circumstances differentiating the cases from these two leading cases."
The Workmen's Compensation, Insurance and Safety Act of 1917, section. 6 (a), [Stats. 1917, pp. 831, 834] provides: "Liability for the compensation provided by this act, in lieu of any other liability whatsoever to any person, shall, without regard to negligence, exist against an employer for an injury sustained by his employees arising out of and in the course of the employment . . ."
Coronado Beach Co. v. Pillsbury, supra, is a case where an employee, who was particularly susceptible to tickling, while in the course of his employment was going downstairs, when he was tickled in the ribs by another employee. As a result he fell down the stairs, sustaining injury. The court held he was not entitled to compensation, saying: "The accidents arising out of the employment of the person injured are those in which it is possible to trace the injury to the nature of the employee's work or to the risks to which the employer's business exposes the employee. The accident must be one resulting from a risk reasonably incident to the employment. . . . In the matter at bar the employment of Flint exposed him to no greater danger from being tickled by a fellow-servant than would a guest in the hotel of his employer have been so exposed." In Fishering v. Pillsbury, supra, an employee, about seventeen years of age, pointed a trick camera at another employee and caused a spring to be ejected from it. The spring struck the other in the eye, injuring him. The court held he was not entitled to *298 compensation, on the authority of Coronado Beach Co. v.Pillsbury, supra.
Respondents rely chiefly upon two cases which follow the rule they ask us to adopt. One of these is Leonbruno v. ChamplainSilk Mills,
The other cases cited by respondents do not fully support the rule contended for by them. While in some of them compensation was awarded for injuries resulting from skylarking, in the cases where such compensation has been awarded special circumstances have appeared which made the skylarking peculiarly one of the risks of the employment. In other cases, the compensation was awarded for injuries received by employees as the result of altercations or quarrels, but in each of those cases the controversy had its origin in some misunderstanding or incident connected with the work. These cases decide that while ordinarily compensation will not be allowed where injuries are caused by skylarking or are the result of a dispute between employees, yet an injury may be so caused and still be held to arise out of the employment. Thus, in the case of In re Loper,
In Mueller v. Klingman (Ind. App.), 125 N.E. 464, also cited by respondent, the deceased employee and a fellow-employee were working together. The fellow-worker became angered at a remark made by deceased concerning the doing of the work, and threw a hammer at him, striking him in the head. The injury inflicted caused his death. The court held that the injury arose out of the employment, basing the decision on Pekin Cooperage Co. v.Industrial Commission,
Of the other cases cited by respondent, Stuart v. KansasCity,
[1] While the authorities cited above from New York and Oklahoma lay down the rule contended for by respondents, we are not prepared to concede that they represent the general trend of authority on the subject. We do not think, therefore, that these authorities would justify us in overruling the settled law of this state as laid down in Coronado Beach Co. v.Pillsbury, supra, and Fishering v. Pillsbury, supra, approved in the late case of Federal Mut. Liability Ins. Co. v.Industrial Acc. Com., ante, p. 284, [201, Pac. 920], on the subject of injuries received by an *301
employee through horse-play. It cannot be held that all injuries so received in the course of the employment arise out of the employment. It may be remarked that the recent case ofGeneral Accident etc. Assur. Corp. v. Industrial Acc. Com.,
In the case at bar it is not claimed or shown that the scuffling was habitual, that the employer had any knowledge of the horse-play, or that it had any other characteristic which would make it a risk of the employment. The injury was an unfortunate accident which had no connection with the employment, and did not arise out of it. The employer should not be held liable.
The award is annulled.
Wilbur, J., Sloane, J., Shurtleff, J., and Shaw, J., concurred. *302