64 Ind. App. 571 | Ind. Ct. App. | 1917
“That on the 28th day of September, 1916, A was in the employment of B as a drill press operator, at an average weekly wage of $14.30; that on said date, while he was engaged in his work as a drill press operator, the assistant superintendent of the employer, under whom A was working, as an act of sport and horseplay upon the part of said assistant superintendent, turned the air from the air compressor, maintained at said time in the employer’s factory, upon the employe in the region of the rectum; that the turning of said air upon the employe at said time caused him to quickly jerk and straighten his body; that at said time the employe was suffering from an abscess in the region of the gall bladder ; that the turning of said air upon him as aforesaid by the employer’s assistant superintendent, causing him to suddenly jerk and strain himself, ruptured said abscess and resulted in acute general peritonitis, which caused the death of said employe on the 30th day of September, 1916; that the employer, by and through its assistant superintendent, had actual knowledge of the' injury of the employe at the time that it occurred; that the air compressor in the employer’s factory was used for the purpose of cleaning machinery, and long prior to the 28th day of September, 1916, the employe's had established the custom of using the same to ‘brush’ their clothes, by which is meant that it was used to blow the dust and dirt off their clothing; that said employes had also formed the habit of using said compressor in acts of sport or horseplay by turning the air therefrom upon one another, which act was known among them
The certified question of law is as follows: “Upon the foregoing facts, did the injury and death of the employe arise out of his employment within the meaning of the Indiana Workmen’s Compensation Act?”
In denying compensation for an injury so caused, the courts, as a rule, assign as a reason that the sportive act that results in the injury constitutes no part of the duties of the frolicsome workman, and consequently no part of the enterprise conducted by the employer, and hence that the injury does not arise out of the employment. We. proceed to determine whether such reasons for denying compensation are applicable to the facts here. Of the statement of facts submitted to us, and as we interpret it, there are certain elements which we regard as distinguishing and also controlling, as follows:' The employes while engaged in performing the duties of their employment in and about the employer's plant, rather than when off duty, had formed the habit of using the air compressor in acts of sport by turning the current of air therefrom upon one another,
In the Pierce case, supra, a fellow employe assaulted Pierce in a playful manner. It is not clear that the latter was otherwise than passive in the transaction. Following the assault such fellow employe, in a spirit of fun, threw a small stick at Pierce, wounding his eye. There was evidence that defendant’s employes had been accustomed to join in what they called horseplay, and that defendant did not interfere or take steps to protect the employes therefrom. Pierce was not in the habit of joining his fellows in such playful performances. The opinion discloses only inferentially that the employer had knowledge of such custom. In denying compensation the court quotes from the Hulley case as reported in 95 Atl. 1007, as follows: “The employer was not charged with the duty to see to it that none of his employes assaulted any other one of them, either wilfully or sportively. * * * An employer is not liable, under the Workmen’s Compensation Act (P. L. 1911, p. 134), to make compensation for injury to an employe, which was the result of horseplay or skylarking, so called, whether the 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, it cannot be said to arise out of the employment.”
Although, in the foregoing, case, the horseplay cases are apparently distinguished by a general reference, we fail to see the distinction under the facts of the case at bar. We are not dealing here with a sporadic, occasional or unanticipated use of the air hose in play. It had become a habit here for the employes to turn the hose against one another. That the habit was a perilous one, see the following, where similar accidents occurred: Federal Rubber Mfg. Co. v. Havolic, supra; Galveston, etc., R. Co. v. Currie (1906), 100 Tex. 136, 96 S. W. 1073, 10 L. R. A. (N. S.) 367; Ballard’s Admx. v. Louisville, etc., R. Co. (1908), 128 Ky. 826, 110 S. W. 296, 16 L. R. A. (N. S.) 1052. The employer, with knowledge of the facts, permitted such practice to continue. It was within his power to have prohibited it. By failing to do so, it became an element of the conditions under which the employe was required to work. The employe here, while pursuing his labors, became the victim of such custom resulting in the loss of his life. It would seem that it should have been anticipated that the natural result of the application of a current of air rushing under tremendous pressure from the nozzle of a hose against a human body, would be the loss of an eye, the destruction of an ear, or some such accident as here. In order that an injury may be held to arise out of the employment, however, “it need not have been
To the question submitted to us, as we have interpreted it, we respond that under the facts the injury and death involved arose out of the employment within the meaning of the Workmen’s Compensation Act. In so responding, certain facts control us, as that the use of the air here as indicated had become a habit, the empldyer through his superintendent having knowledge thereof, and the injured workman at the time not participating therein, but being engaged in performing his duties.
Note. — Reported in 116 N. E. 324. Workmen’s compensation: what is an injury or personal injury within meaning of acts, Ann. Cas. 1915C 921; meaning and effect of words “injuries arising out of and in course of the employment,” L. R. A. 1916A 40, 232.