45 A.2d 467 | Md. | 1946
Lead Opinion
John Hill, an employee of Liberty Motor and Engineering Corporation, one of the appellees, on February 5, 1944, arrived at his place of employment at about 7:30 A.M. He punched the time clock and then went into a room furnished by the employer to the employees for changing their clothes preparatory to work and upon leaving work. Work did not start until 8:00 A.M.
Hill had something which appeared in the newspaper, Afro-American, which he wanted to show to Sylvester Lowe. Lowe told him that he did not want to see it. Hill kept on and one word brought on another and Hill called Lowe a vile name. Finally Hill, who weighed about 175 pounds, jumped up and grabbed Lowe, who weighed about 155 pounds, and threw him down on the floor on his back. Lowe and all the other witnesses say that both men were friendly and laughing at each other during the whole scuffle. After holding Lowe on the floor for a short time, Hill attempted to disengage himself and to get up on his feet. As he was rising his foot slipped and he fell against a radiator and struck his head. As a result his head was bleeding. He was promptly sent to the hospital in an ambulance and died the following day as a result of this injury. There is testimony which is not contradicted that Hill had been warned against horse-play and that all the employees, including Hill, had been given an instruction book at the time of their employment, which contained instructions from the employer not to engage in horse-play, which subjected the transgressor to discharge. *599
His wife, Irene Hill, claimant and appellant, on her own behalf and on behalf of her two minor children, filed a claim with the State Industrial Accident Commission against the employer and insurer. The Commission found after a hearing that the accident causing the injury and death of John Hill did not arise out of and in the course of his employment and that the deceased was guilty of horse-play. From an order disallowing the claim, an appeal was taken to the Baltimore City Court where the case was tried before a jury. By reason of the fact that the jury was unable to agree upon their verdict, they were discharged.
By agreement of the parties at the retrial of the case tried before a judge, other than the one who presided at the former trial, without a jury, a stipulation was entered into by counsel that no further testimony would be introduced at the second trial but the issues were to be decided upon the record and testimony presented at the first trial. The same exceptions were reserved to the rulings on the testimony. According to the record before this Court, no prayers were offered at the second trial. The trial judge at the rehearing without a jury affirmed the decision of the State Industrial Accident Commission in that the injury and death of John Hill did not arise out of and in the course of his employment. Judgment was entered in favor of the employer and insurer for costs and, from that judgment, the appellant appeals here. The case comes to this Court under Rule 9, Trial by the Court. As none of the appellant's exceptions to the rulings on evidence were discussed in the brief or argument, they will be treated as abandoned.
The question for our decision is whether the trial judge was clearly erroneous in denying compensation to the wife of a deceased employee who died as a result of horse-play in which he engaged and which he initiated, after he had been notified by rules of the employer corporation and personally by his superior not to engage in horse-play. All of which occurred half an hour before *600 work in a room furnished by the employer to change clothing, when the deceased was not changing his clothing and where he had never changed his clothes. To appellant's argument, that the friendly tussle had terminated and the horse-play had ended when Hill slipped while attempting to disengage himself and get on his feet, we see no force.
Appellants have referred us to many out of state cases where compensation was allowed, most of which are distinguishable from the case at bar. In Corpora v. Kansas City Public Service Co.,
Appellees also cite many out of state cases. In Porter v. Cityof New Haven,
In Lee's Case,
Stark v. State Industrial Accident Commission,
In the case of Leonbruno v. Champlain Silk Mills,
Where an elevator operator left his post to scuffle with a fellow employee and sustained injuries, it was held in the Caseof Moore,
In the case of Fazio v. Cardillo, et al.,
The Federal statute in part is similar to the Maryland statute, Art. 101, § 14. That section in Maryland provides in part: "Every employer * * * shall pay * * * compensation * * * for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment without regard to fault as a cause of such injury, except where the injury is occasioned by the wilful intention of the injured employee to bring about the injury or death of himself or of another, or where the injury results solely from the intoxication of the injured employee while on duty. * * *."
The case of Hartford Accident Indemnity Co. v. Cardillo, etal.,
The Court in that case allowed compensation for the reason that it was clear that the entire sequence of incidents occurred notonly while the claimant and his assailant were at work but as anatural and normal product of work together. He distinguishes that case from Fazio v. Cardillo, supra, by the fact that in the Fazio case the claimant there was the aggressor in the physical assault and also by the fact that the deputy commissioner, who found in the case under discussion, that the injury rose out of the employment, found in the Fazio case, that it did not arise out of the employment.
In the case at bar the deceased "stepped aside from the employment," not merely by "joining in the horse-play," but by starting it, not while he was at work, but a half hour before work when he was doing nothing pertaining to the work. Also in the case at bar the State Industrial Accident Commission found that the injury did not rise out of the employment. The injury here did not occur while the deceased was at work and was not a natural and normal product of working together. This horse-play might well have been causd by any association of Hill with Lowe.
In a number of recent cases compensation has been allowed to workmen who did not initiate or participate in horse-play that caused their injuries. Anderson v. Hotel Cataract, S.D.,
In Scholtzhauer v. C. L. Lunch Co.,
Likewise in the case at bar Hill might have shown Lowe the article in the Afro-American and kidded and grabbed him on the street or any other place other than the employer's premises. The only bearing on the injury was that the work brought the two persons together, which might well have occurred at any other place.
The words, borrowed from the English Compensation Act, "out of," refer to the cause or origin of the accident, while "in the course of" refer to the time, place, and circumstances under which it occurs. Long before the passage of the Maryland Act the Court of Appeals had held that a non-participating victim of horse-play is not entitled to compensation. Armitage v.Lancashire etc. R. Co. (1902), 2 K.B. 178; Fitzgerald v. Clarke Son, (1908) 2 K.B. 796. Later the House of Lords held that *606 it is a question of fact in each case whether the horse-play is a risk of the employment of the non-participating victim. Claytonv. Hardware Colliery Co. Ltd. (1915), 85 L.J. (K.B.) 292,Calton v. Samuel Fox Co., Ltd. (C.A. 1938), 158 L.T. 402. It seems never to have been contended that an employee who himself "steps aside from the employment" and initiates horse-play can recover compensation for the consequences.
Turning to the Maryland law it was pointed out by this Court in the case of Baltimore Dry Dock Co. v. Webster,
It is pertinent to observe in the instant case that this accident occurred possibly one-half hour before the work of the claimant began. It was stated by this Court in the case ofHarrison v. Central Construction Co.,
In the case at bar the employment did not require the deceased to be at the place where the injury occurred, a place provided for changing clothes and, according to the testimony before us, Hill never changed his clothes either before or after work. Neither did the work in any way cause the horse-play as in many of the cases cited, such as air hose cases. The horse-play in the case at bar is the kind which could very well have occurred at any place in no way connected with the employment. AtlanticRefining Co. v. Forrester,
This Court, in the case of Schemmel v. T.B. Gatch and Sons,etc., Co.,
The case now before this Court could well come within the exclusion above set forth as the injury cannot be fairly traced to the employment as a contributing proximate cause and which came from a hazard to which the deceased would have been equally exposed apart from employment. The only ground on which compensation could be allowed here is because the work caused the association of these two men. That alone under the authorities is not sufficient.
The claimant in this case is favored under Workmen's Compensation Act by the provision of Art. 101, § 79, that it shall be presumed in the absence of substantial evidence to the contrary, "(c) that the injury was not occasioned by the wilful intention of the injured employee to bring about the injury or death of himself or of another." On the other hand, she is faced with the provision of Code, Article 101, § 70, that the decision of the State Industrial Accident Commission shall be presumed as prima facie correct, and that the burden of proof is here upon the claimant. Atlantic Refining Co. v. Forrester,supra,
For the reasons herein given and under the authorities herein cited we are not prepared to say that the claimant has overcome the burden of proof cast upon her or that the judgment of the Trial Court was clearly erroneous and therefore the judgment will be affirmed.
Judgment affirmed with costs.
Dissenting Opinion
The question presented in this case is an unmixed question of law, and there is no occasion to discuss the effect of the various presumptions. The question is whether the death was caused by an accident arising out of and in the course of employment. The facts are undisputed that Hill had reported for work and punched the time-clock, and was in a room furnished by the employer for the convenience of employees to change their clothes preparatory to work. If work were to start promptly at 8 A.M., it was necessary for employees to enter the premises and make necessary preparations beforehand, and in that preliminary period Hill was within the course of his employment. All of the authorities agree upon this point.
In Southern Can Co. v. Sachs,
To be compensable, the risk need not be directly related to the type of work performed; it is sufficient if the duties of the employee require him to be in the place where the injury occurs, and the injury is attributable to the working environment. Thus, in Krell v. Maryland Drydock Co.,
It is contended, however, that the injury did not arise out of the employment because it resulted from "horse-play" between the decedent and a fellow-employee. It is said that the employee "stepped aside" from his employment; the argument seems to be that since the employee contributed to his injury, the proximate cause was not the working environment but the employee's own fault. The short answer to this contention is found in the statute itself. Section 14, Art. 101, of the Code, 1939, provides compensation for "accidental personal injury sustained by the employee arising out of and in the course of his employment without regard to fault as a cause of such injury, except where the injury is occasioned by the wilful intention of the injured employee to bring about the injury or death of himself or of another, or where the injury results solely from the intoxication of *611 the injured employee while on duty." Section 58 denies recovery for any injury "caused by self-inflected injury, the wilful misconduct, or where the injury or death resulted solely from the intoxication of the injured employee."
If the injury is compensable "without regard to fault as a cause of such injury," it would seem to be wholly immaterial that the employee contributed to the injury by originating or participating in the "horse-play" that led to the accident. Any other view would distort the plain meaning of the statute, and add a further exception to those created by the legislature. To that extent, it would defeat the avowed purpose of the law to place the burden of loss arising from accidents in industry upon the industry, without regard to fault. Solvuca v. Ryan,
The point raised is novel in this State. The authorities in other states are not in agreement, but there is a definite tendency to recognize the risk of injury from "horse-play" as an inherent risk of employment, without the necessity of a finding of fact that such a risk is peculiar to the particular employment, as required by the English authorities. See notes 15 Aust. L.J. 149; 77 Ir. L.T. 293. In the leading case ofLeebrunno v. Champlain Silk Mills,
It is true that in those cases the employee was not a participant in, or at least not the aggressor in, the "horse-play." *612
But the fact of participation or aggression would not seem to afford the basis for a valid distinction, for the distinction can only be predicated upon the theory that the injured workman's fault has intervened so as to break the chain of causation. That is a principle of tort law which has no just application to the statutory law of Workmen's Compensation. There is respectable authority for the proposition that such a distinction is untenable, although a majority of the courts hold to the contrary. Stark v. State Industrial Acc. Comm., 1922,
In the opinion of the Court in the case at bar stress is laid upon the fact that a rule of the employer forbade "horse-play," under penalty of discharge. This Court has held that a mere violation of rules is not enough to bar recovery on the ground of misconduct. Red Star Coaches, Inc., v. Chatham,
I think the injury is compensable and the judgment of the trial court should be reversed. I am authorized to say that Chief Judge Marbury concurs in this view.
On motion for Reargument, the following opinion was filed percuriam:
By motion for reargument, the appellant earnestly disputes the correctness of our decision on the basic question in this case and also raises a number of subsidiary questions, of law, fact or evidence, directed to particular features of the opinion.
We adhere to our decision that an employee who "steps aside from his employment" to initiate and participate in horse-play is not entitled to compensation for the consequences of his departure. Such injuries do not "arise out of his employment." The necessary causal connection between the employment and the injury is lacking. The mere fact that the work caused his association with the other man is not sufficient.
Subsidiary questions relate to such matters as the fact that the accident occurred before work was actually begun, the nature and extent of warnings to employees against horse-play and the question whether the deceased had changed or was about to change his clothes. We find it unnecessary to discuss these subsidiary questions for the reason that what was said about these details was not a basis of decision, but was incidental to the statement of facts. We do not regard these details as an essential part of the Court's reasoning or conclusion.
Motion denied. *614