Professor Goering Fall 2006 LARW I Section A/B Closed Research Office Memorandum Research Materials Statutes : Kan. Stat. Ann. § 44-501 (2006). Kan. Stat. Ann. § 44-508 (2006). Cases : Stuart v. Kansas City, 102 Kan. 307, 171 Pac. 913 (1918). State ex. rel. H.S. Johnson Sash & Door Co. v. District Court, Hennepin County , 140 Minn. 75, 167 N.W. 283 (1918). White v. Kansas City Stockyards Co., 104 Kan. 90, 177 P. 522 (1919). Thomas v. Proctor & Gamble Mfg. Co., 104 Kan. 432, 179 P. 372 (1919). Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 128 N.E. 711 (1920). Kansas City Fibre Box Co. v. Connell , 5 F.2d 398 (8th Cir. 1925). Borden Mills, Inc. v. McGaha, 161 Tenn. 376, 32 S.W.2d 1039 (1930). Neal v. Boeing Airplane Co., 161 Kan. 322, 167 P.2d 643 (1946). Carter v. Alpha Kappa Lambda Fraternity, Inc., 197 Kan. 374, 417 P.2d 137 (1966).
Transcript
Professor Goering Fall 2006LARW I Section A/B
Closed Research Office Memorandum
Research Materials
Statutes:
Kan. Stat. Ann. § 44-501 (2006).
Kan. Stat. Ann. § 44-508 (2006).
Cases:
Stuart v. Kansas City, 102 Kan. 307, 171 Pac. 913 (1918).
State ex. rel. H.S. Johnson Sash & Door Co. v. District Court, Hennepin County, 140 Minn. 75, 167 N.W. 283 (1918).
White v. Kansas City Stockyards Co., 104 Kan. 90, 177 P. 522 (1919).
Thomas v. Proctor & Gamble Mfg. Co., 104 Kan. 432, 179 P. 372 (1919).
Kansas City Fibre Box Co. v. Connell, 5 F.2d 398 (8th Cir. 1925).
Borden Mills, Inc. v. McGaha, 161 Tenn. 376, 32 S.W.2d 1039 (1930).
Neal v. Boeing Airplane Co., 161 Kan. 322, 167 P.2d 643 (1946).
Carter v. Alpha Kappa Lambda Fraternity, Inc., 197 Kan. 374, 417 P.2d 137 (1966).
Professor Goering Fall 2006LARW I Section A/B
Kan. Stat. Ann. 44-501 (2006):
44-501. Employer obligation; burden of proof; defenses; exceptions; legislative intent; benefits reduced for certain retirement benefits.
(a) If in any employment to which the workers compensation act applies, personal injury by accident arising out of and in the course of employment is caused to an employee, the employer shall be liable to pay compensation to the employee in accordance with the provisions of the workers compensation act. In proceedings under the workers compensation act, the burden of proof shall be on the claimant to establish the claimant's right to an award of compensation and to prove the various conditions on which the claimant's right depends. In determining whether the claimant has satisfied this burden of proof, the trier of fact shall consider the whole record.
(b) Except as provided in the workers compensation act, no employer, or other employee of such employer, shall be liable for any injury for which compensation is recoverable under the workers compensation act nor shall an employer be liable to any third party for any injury or death of an employee which was caused under circumstances creating a legal liability against a third party and for which workers compensation is payable by such employer.
. . . .
(g) It is the intent of the legislature that the workers compensation act shall be liberally construed for the purpose of bringing employers and employees within the provisions of the act to provide the protections of the workers compensation act to both. The provisions of the workers compensation act shall be applied impartially to both employers and employees in cases arising thereunder.
(a) 'Employer' includes: (1) Any person or body of persons, corporate or unincorporate, and the legal representative of a deceased employer or the receiver or trustee of a person, corporation, association or partnership; . . .
(b) 'Workman' or 'employee' or 'worker' means any person who has entered into the employment of or works under any contract of service or apprenticeship with an employer. . . . .
. . . .
(d) 'Accident' means an undesigned, sudden and unexpected event or events, usually of an afflictive or unfortunate nature and often, but not necessarily, accompanied by a manifestation of force. The elements of an accident, as stated herein, are not to be construed in a strict and literal sense, but in a manner designed to effectuate the purpose of the workers compensation act that the employer bear the expense of accidental injury to a worker caused by the employment. . . . .
. . . .
(f) The words 'arising out of and in the course of employment' as used in the workers compensation act shall not be construed to include injuries to the employee occurring while the employee is on the way to assume the duties of employment or after leaving such duties, the proximate cause of which injury is not the employer's negligence. An employee shall not be construed as being on the way to assume the duties of employment or having left such duties at a time when the worker is on the premises of the employer or on the only available route to or from work which is a route involving a special risk or hazard and which is a route not used by the public except in dealings with the employer. . . . .
The words, 'arising out of and in the course of employment' as used in the workers compensation act shall not be construed to include injuries to employees while engaged in recreational or social events under circumstances where the employee was under no duty to attend and where the injury did not result from the performance of tasks related to the employee's normal job duties or as specifically instructed to be performed by the employer.
(g) 'Burden of proof' means the burden of a party to persuade the trier of facts by a preponderance of the credible evidence that such party's position on an issue is more probably true than not true on the basis of the whole record.
*913 Appeal from District Court, Wyandotte County.
Action by Clayton L. Stuart against the City of Kansas City, Kan. Judgment awarding compensation under Workmen's Compensation Act, and defendant appeals. Reversed, and new trial directed upon particular questions.
Lee Judy, of Kansas City, Kan., Hogsett & Boyle, of Kansas City, Mo., and T. F. Railsback, Thomas M. Van Cleave, and H. J. Smith, all of Kansas City, Kan., for appellant.
Emerson & Smith, of Kansas City, Kan., for appellee.
MARSHALL, J.
The plaintiff recovered judgment under the Workmen's Compensation Act for $1,690, and the defendant appeals.
The plaintiff was employed by the defendant as a laborer in the defendant's water and light department, and, at the time of the injury which is the basis of this action, was engaged in mixing and carrying mortar to other workmen, who were repairing boilers in the defendant's plant. The other workmen were working about 20 feet above the ground. After mixing the mortar, the plaintiff carried it in a bucket to a hook on the end of a rope and attached the bucket thereto, and William Deeds, one of the workmen, elevated the mortar and delivered it to other workmen who were laying brick. Just before he was injured, the plaintiff had taken a bucket of mortar and attached it to the rope, and had then stepped back about 25 feet and looked up toward William Deeds to see when the bucket was returned, and to ascertain if he wanted anything. While thus standing, a piece of green mortar made of lime, sand, and cement fell or was thrown into the plaintiff's eye, which was thereby seriously injured.
On the trial, the plaintiff, in substance, testified that he supposed, but did not know that Deeds threw the mortar. The plaintiff testified, in part, as follows:
"Q. Did you see Mr. Deeds just before you were hit? A. Yes, sir. Q. What was he doing? A. Standing upon this platform. Q. Was he making motions of any kind? A. No. Q. Had he made any? A. Well, just before this for [fell] in my eye, he got down on his hands and knees
Professor Goering Fall 2006LARW I Section A/B
and looked under the platform and made circular swing with his right arm as though reaching for something; might have tossed something out of his hand, I couldn't say. Q. Did you see any mortar leave his hand? A. No, sir. Q. Did you see any in it? A. I didn't see any in it. Q. You thought at the time he did throw it, did you? A. Yes, I thought at the time he threw it."
There was abundant evidence, largely in the nature of admissions made by the plaintiff, to show that Deeds had playfully thrown the mortar. There was evidence to show that Deeds was playful, sportive, and inclined to play pranks or jokes on his fellow workmen, and that this was known by his immediate superiors at the plant.
The jury answered special questions as follows:
"Question 1: Did the injury to the plaintiff arise out of and in the course of his employment? Answer: Yes.
. . . . *914
1. The defendant's argument is principally based on the theory that Deeds, in a spirit of sport, threw the mortar at the plaintiff, and that the mortar hit the plaintiff in the eye. The defendant contends that it is not liable for an injury inflicted on one of its workmen by another workman when the latter injures the former by some prank, sport, or play, or even by an assault. The matter now complained of was presented to the trial court in a number of forms. (1) At the close of the plaintiff's evidence, the defendant asked that the jury be instructed to return a verdict in favor of the defendant. The request was refused. (2) At the close of all the evidence, the defendant again asked that the jury be instructed to return a verdict in favor of the defendant. The request was again refused. (3) The defendant requested an instruction, substantially, that if the plaintiff's injury was caused by a fellow employe throwing mortar at the plaintiff, either maliciously or in sport, the plaintiff could not recover for the resulting injury. No such instruction was given. The court instructed the jury as follows:
"You are further instructed that before the plaintiff is entitled to recover he must show by a preponderance of the evidence that the accident complained of is one which arose out of and in the course of his employment, and in this connection you are instructed that, if you find from the evidence that one Deeds, a fellow workman of the plaintiff, engaged in the same line of employment, and while so engaged either intentionally or accidentally struck the plaintiff in the eye with a piece of mortar, injuring him, you must find that the injury arose out of and in the course of the employment of the plaintiff, and if such injury resulted in incapacity to perform labor for a period beyond two weeks from the date of such injury he would be entitled to compensation."
This instruction did not correctly state the law.
The first section of the Employers' Liability Act, section 5896 of the General Statutes of 1915, reads, in part, as follows:
"If in any employment to which this act applies, personal injury by accident arising out of and in the course of employment is caused to a workman, his employer shall, subject as
Professor Goering Fall 2006LARW I Section A/B
hereinafter mentioned, be liable to pay compensation to the workman in accordance with this act."
A clear and concise statement of the law governing compensation for injuries to employes caused by play is found in Workmen's Compensation Acts, a corpus juris treatise by Donald J. Kiser, p. 79, and is as follows:
"An employe is not entitled to compensation for an injury which was the result of sportive acts of coemployes, or horseplay or skylarking, whether it is instigated by the employe, or whether the employe takes no part in it. If an employe is assaulted by a fellow workman, whether in anger or in play, an injury so sustained does not arise 'out of the employment,' and the employe is not entitled to compensation therefor, unless in a case where the employer knows that the habits of the guilty servant are such that it is unsafe for him to work with other employes."
The rule there declared is supported by Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 151 Pac. 398; McNicol's Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306; Scott v. Payne Bros., 85 N. J. Law, 446, 89 Atl. 927; In re Loper (Ind. App.) 116 N. E. 324; Clayton v. Hardwick Colliery Co., 85 L. J. K. C. 292.
Under these authorities the rule is that where a workman, known by his master to be in the habit of indulging in dangerous play with his fellow workmen, is retained in the master's employ, the danger of injury from such play becomes an incident of the employment of the other workmen, and injury to any of the other workmen, while performing his regular work, caused by such play, comes within the provisions of the Workmen's Compensation Act.
*915 . . . .
Because of the error in the instructions, the judgment is reversed, and a new trial is granted. All the Justices concurring.
On Rehearing.
In an opinion rendered on January 12, 1918, the judgment of the district court was reversed, and a new trial was granted.
The plaintiff has filed an application for a rehearing, and, in that application, asks that, if a rehearing is denied and the judgment stands reversed, the new trial be directed on the proposition on which the judgment was reversed. The judgment was reversed on the ground that an instruction was erroneous because it did not submit to the jury the question of the defendant's knowledge of the dangerously playful habits of William Deeds, a fellow workman with whom the plaintiff was working at the time of his injury.
The judgment of reversal is adhered to, and a new trial is granted on the following questions: Was the plaintiff injured by William Deeds, accidentally or in sport? If the plaintiff was injured by William Deeds in sport, was William Deeds in the habit of indulging in dangerous play with his fellow workmen? If William Deeds was in the habit of indulging in dangerous play with his
fellow workmen, did the defendant have notice or knowledge of that habit?
After these facts have been ascertained, judgment will be rendered by the trial court in accordance with the facts so found and in obedience to the law declared in the former opinion. All the Justices concurring.
Professor Goering Fall 2006LARW I Section A/B
Supreme Court of Minnesota.
STATE ex rel. H. S. JOHNSON SASH & DOOR CO.v.
DISTRICT COURT, HENNEPIN COUNTY, et al.
140 Minn. 75, 167 N.W. 283
No. 20882.
April 12, 1918.
Certiorari to District Court, Hennepin County; Wm. C. Leary, Judge.
*76 **284 John A. Nordin, of Minneapolis, for relator.
Larrabee & Olson, of Minneapolis, for respondents.
DIBELL, C.
Certiorari to the district court of Hennepin to review its judgment awarding compensation under the Workmen's Compensation Act to William Filas, an employe of the relator H. S. Johnson Company.
The relator company operates a woodworking factory. Filas was employed by it. The court finds that some of the employes of the relator, referred to in the evidence as boys or kids, were accustomed during working hours to throw missiles such as blocks of wood and sash pins at one another and atothers including Filas; that the relator knew of the custom or should have known of it in the exercise of diligence; that on May 31, 1917, a fellow employe of Filas threw a sash pin at him in sport and without intending to injure him; that it hit him in the eye and destroyed his vision; that Filas was at the time engaged in his work; and that he did not then and had not at any time engaged with his fellow employe in sport of this kind. These findings are sustained. Filas claims that he at no time engaged with his fellow employes in throwing missiles and that he complained to *77 the company of the acts of the particular employe. No specific findings are made upon these points. The court finds that the accident arose out of Filas' employment. Whether it did is the only question.
The rule is well enough settled that where workmen step aside from their employment and engage in horseplay or practical joking, or so engage while continuing their work, and accidental injury results, and in general where one in sport or mischief does some act resulting in injury to a fellow worker, the injury is not one arising out of the employment within the meaning of compensation acts. 1 Honnold, Work. Comp. § 121; Bradbury, Work. Comp. 649; Dosker, Comp. Law, § 106; Boyd, Work. Comp. § 476; note, 12 N. C. C. A. 789; note, L. R. A. 1916A, 23, 47-93; Hulley v. Moosbrugger, 88 N. J. Law, 161, 95 Atl. 1007, L. R. A. 1916C, 1203; Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 Pac. 212, L. R. A. 1916F, 1164; Fishering v. Pillsbury, 172 Cal. 690, 158 Pac. 215; Federal, etc., Co. v. Havolic, 162 Wis. 341, 156 N. W. 143, L. R. A. 1916D, 968; Pierce v. Boyer-Van Kuran, etc., Co., 99 Neb. 321, 156 N. W. 509, L.
R. A. 1916D, 970; De Filippis v. Falkenberg, 170 App. Div. 153, 155 N. Y. Supp. 761; Armitage v. L. & Y. Ry. Co., [1902] 2 K. B. 178; Fitzgerald v. Clark, [1908] 2 K. B. 796. Here we conceive the situation to be different. Filas was exposed by his employment to the risk of injury from the throwing of sash pins in sport and mischief. He did not himself engage in the sport. His employer did not stop it. The risk continued. The accident was the natural result of the missile throwing proclivities of some of Filas' fellow workers and was a risk of the work as it was conducted. In McNicol's Case, 215 Mass. 497, 102 N. W. 697, L. R. A. 1616A, 306, injuries resulting from blows administered in frenzy by an intoxicated fellow worker known by the employer to be in the habit of becoming intoxicated and in that condition to be dangerous were held to arise out of the employment. Liability was rested 'upon the causal connection between the injury of the deceased and the conditions under which the defendant required him to work.' In Clayton v. Hardwick Colliery Co., 9 B. W. C. C. 136, reversing 7 B. W. C. C. 643, a finding that a boy who was working with other boys in a colliery picking stones from coal and was injured by a stone thrown by another boy was so subjected *78 by his employment to a special risk that the injury arose out of his employment was sustained. In Challis v. London, etc., Co., [1905] 2 K. B. 154, the injuries to an engineer who was driving his engine under a bridge and was hit by a stone thrown by a boy from the bridge were held to arise out of his employment. And see Pekin Cooperage Co. v. Industrial Board, 277 Ill. 53, 115 N. E. 128; In re Loper (Inc. App.) 116 N. E. 324; Knopp v. American, etc., Co., 186 Ill. App. 605; State v. District Court, 134 Minn. 16, 158 N. W. 713, L. R. A. 1916F, 957.
The ultimate finding that the injury to Filas arose out of his employment is sustained by the evidence.
*522 Appeal from District Court, Wyandotte County.
W. L. Wood, of Kansas City, for appellant. J. K. Cubbison and W. G. Holt, both of Kansas City, Mo., for appellee.
DAWSON, J.
The plaintiff was given judgment under the Workmen's Compensation Act (Laws 1911, c. 218, as amended by Laws 1913, c. 216) against the defendant, who was his employer. Plaintiff's injuries were occasioned through a mischievous prank perpetrated upon him by some of his fellow workmen. They fastened an electrically charged wire to an iron door on the defendant's premises. Plaintiff had to pass through this door when his day's work was done and when he had washed and dressed to go home. On touching the gate, plaintiff was severely shocked and more or less permanently injured.
It is needless to discuss the question whether plaintiff was injured in the course of his employment. Under not dissimilar circumstances, it has been so held in this state. Sedlock v. Mining Co., 98 Kan. 680, 159 Pac. 9; Monson v. Battelle, 102 Kan. 208, 170 Pac. 801, Syl. par. 3; Id., 103 Kan. 470, 173 Pac. 927.
It has also been held that, while ordinarily a master is not liable under the compensation act for injuries to a workman which have been caused through the mischievous pranks and sportive jokes of his coemployes, yet the rule is otherwise where the master has knowingly permitted such mischievous pranks to continue. In such cases the danger of injury becomes an incident of the employment. Stuart v. Kansas City, 102 Kan. 307, 310, 171 Pac. 913.
The serious contention in this case is that the master did not know that such pranks were being perpetrated on its premises. It would not be unjust to say that the master should have known and was chargeable with notice, for this same mischievous and dangerous prank had been practiced frequently on other workmen off and on for several *523 weeks or months before plaintiff was injured. Here, however, it was shown that plaintiff's foreman, the man who directed his work, was one of the perpetrators of the mischief which injured the plaintiff. This foreman knew this particular prank had become a custom on the employer's premises. Defendant contends that this person was not a foreman, but the great weight of the evidence is to the contrary. It is true that this foreman had no general authority, but he was the person whom plaintiff had to obey while in defendant's employment. To that extent he was a foreman, and his knowledge of the electrical mantrap on the door was notice to his principal.
No error appears in the record, and the judgment is affirmed.
JOHNSTON, C. J., and MASON, WEST, and MARSHALL, JJ., concurring.
BURCH and PORTER, JJ., concur on the ground the master was chargeable with notice on account of the notoriety and long-continued existence of the practice.
Professor Goering Fall 2006LARW I Section A/B
Supreme Court of Kansas.
THOMAS v. PROCTOR & GAMBLE MFG. CO.
No. 21995.
104 Kan. 432, 179 P. 372*
March 8, 1919.
Rehearing denied April 17, 1919.
*372 Appeal from District Court, Wyandotte County.
*373 J. K. Cubbison, of Kansas City, Mo., for for appellant.
Stanley & Stanley, of Kansas City, Kan., for appellee.
MASON, J.
Daisy Thomas, an employe of the Proctor & Gamble Manufacturing Company, about 17 years of age, recovered a judgment against her employer under the Workmen's Compensation Law (Gen. St. 1915, § 5896 et seq.), and the defendant appeals.
The principal question involved is whether the plaintiff's injury was one arising out of and in the course of her employment. A suggestion is made that it did not result from accident, but the occurrence relied upon seems clearly to fall within the definition of that term. The evidence in behalf of the plaintiff tended to show these facts: She had been working for the defendant a little over five months. Her hours were from 7 to 12 and from 12:30 to 5:30, except on Saturdays, when she did not work in the afternoon. She was paid by the hour. Her custom was to take her lunch with her and eat during the interval between noon and 12:30, which was allowed for that purpose, in the room where she worked, with the other girls in her department, seven or eight in number. The eating of lunch generally occupied about 15 minutes. In the remaining 15 minutes the girls, including the plaintiff, were in the habit of amusing themselves by riding on a small truck used in their department to pull boxes on. The girls had asked the foreman of this department if they could do this, and he had told them they could, but to be careful, and that he did not want any men up there. He knew of the practice and did not object to it; nor did any other representative of the company. During the noon half hour the girls were at liberty to go where they pleased. They hardly ever went down to the restaurants, however, because of the shortness of the time. If they did so they had to run in order to be back by 12:30. On the day of the accident one girl was drawing the truck, while the plaintiff, with two others, were kneeling on it. They had ridden from the powder room, where they worked, into the ware room, and were near the door between the two on the return trip, when in turning a corner the truck slid, and one girl jumped off. The other two fell to the floor, the plaintiff receiving injuries to her knee and ankle. This was a few minutes before 12:30.
Professor Goering Fall 2006LARW I Section A/B
The evidence for the defendant tended to show these facts: The company had a lawn and recreation ground, about an acre in extent, fenced in with its buildings, and five or six acres outside, including a ballground, all of which were accessible to the employes when not at work. The defendant had no control over them during the noon intermission. Usually at this time half of the girls went down to a restaurant on or near the factory premises. The work of the girls in the plaintiff's department was putting paper boxes on the powder machine. They had nothing to do with the trucks, which were handled by men. The assistant superintendent had cautioned the plaintiff against using the trucks, telling her that it was against the rules and very dangerous. He knew the girls had ridden on the trucks, and he and other representatives of the company frequently warned them against the practice, The subforeman of the powder room (called the foreman by the plaintiff) had no authority to permit the girls to use the trucks as playthings. All the foremen were instructed to prevent the girls from getting on the trucks.
1. The conflict of evidence as to the attitude of the company toward the girls' practice of playing with the trucks must, of course, be resolved in favor of the plaintiff. In order for the judgment to be upheld the evidence must have warranted two findings-that the plaintiff was injured in the course of her employment, and that the injury arose out of her employment. The fact that she was working by the hour, and that the accident took place out of working hours, does not conclusively establish that it did not occur in the course of her employment. The shortness of the intermission suggests that it was the expectation that most of the employes would remain on the premises, and the practice shown by the evidence confirms this. The purpose of the plaintiff and her associates in remaining in the factory after their lunch had been eaten was presumably to be on hand when work commenced, in order that there might be no delay-a matter in which the employer had an obvious interest. Their situation was quite like that of a workman who arrives at the factory and is fully prepared to begin work a few minutes before the whistle blows. In the leading English case on the subject, which has been frequently cited with approval in this country, the scope of the decision was fairly indicated by this language of the headnote:
"A workman was paid by the hour for the number of hours per week that he was actually engaged on his work, not including the midday dinner hour. During that hour he was at liberty to stay and take his meal on the premises, or to go elsewhere. He stayed on the premises, and sat down to eat his dinner, and while so doing a wall fell upon him, and he was injured. Held, that during the dinner hour there had been no break in the employment of the workman, and that he was entitled to claim compensation." Blovelt v. Sawyer, 1 K. B. 1904, 271.
. . . .
Of an employe who during the noon intermission, after eating his lunch on the premises, fell into the river and was drowned, it has been said:
"All the circumstances and facts tend to show that up to this time he expected to resume his work when lunching time had expired, and hence he was within the scope of his service when walking at this place." Milwaukee Western F. Co. v. Industrial Commission, 159 Wis. 635, 642, 150 N. W. 998, 999.
"The relation of master and servant, in so far as it involves the obligation of master to protect the servant, is not suspended during the noon hour, where the master expressly, or by fair implication, invites his servants to remain on the premises in the immediate vicinity of the work." Bradbury's Workmen's Compensation (3d Ed.) 524. "As directly applied to the noon intermission, it is a long and well-settled rule that the service tie, or contractual relations and obligations between master and servant, is not broken by such suspension of all activities directly beneficial to the employer." Haller v. City of Lansing, 195 Mich. 753, 758, 162 N. W. 335, 337 (L. R. A. 1917E, 324).
See, also, Boyd's Workmen's Compensation, § 481; 1 Honnold on Workmen's Compensation, § 111; Etherton v. Johnston Knitting Mills Co., 184 App. Div. 820, 172 N. Y. Supp. 724; Racine Rubber Co. v. Industrial Commission, 165 Wis. 600, 162 N. W. 664; Griffith v. Cole Bros. et al. (Iowa) 165 N. W. 577, L. R. A. 1918F, 923; Riley v. Cudahy Packing Co., 82 Neb. 319, 117 N. W. 765; In re Sundine, 218 Mass. 1, 105 N. E. 433, L. R. A. 1916A, 318.
We conclude that there was room for a finding that the plaintiff's injury occurred in the course of her employment. If it had been the result of some accident which was due to the physical conditions under which the work was performed-say to the falling of plaster in the rooms where the girls were playing-this would be quite obvious, and the judgment for the plaintiff would clearly be warranted.
2. Whether the plaintiff's injury arose out of her employment is a more difficult question. Injuries received in play are not usually capable of being so classified. Two illustrative cases are reported, passed upon by a commission and a committee of arbitration, which are in some respects quite similar to that under consideration. Socquet v. Connecticut Mills Co., Conn. W. C. C. C. Digest, 1914-1916, p. 653; Thompson v. W. L. Douglas Shoe Co., 2 Mass. W. C. C. 145. *375 If the present case is to be taken out of the general rule, it must be upon the ground that the habit of the girl employes to play with the trucks during the noon intermission, with the knowledge and express consent of the foreman, and without objection by any one representing the defendant, made such practice one of the conditions under which the business was carried on, upon much the same principle as employers are held liable for the results of horseplay which had grown into a custom. White v. Stockyards, 177 Pac. 522. Injuries have been held to arise out of the employment whenever they are "such as the character of the business or the conditions under which it is carried on make likely, and the result either was or should have been in the contemplation of the employer." Jacquemin et al. v. Turner & Seymour Manufacturing Co., 92 Conn. 382, 103 Atl. 115, L. R. A. 1918E, 496. The plaintiff's participation in the use of the truck would not seem necessarily to bar her recovery, her conduct being of a kind to be expected in girls of her age, and the question of her want of care not being material, the action not being founded on her employer's negligence.
The trial court gave an instruction to the effect that, if the plaintiff was injured as a direct and natural result of a risk reasonably incident to the employment in which she was engaged, it must be considered as arising out of and in the course of her employment. This is complained of, but substantially the test proposed has often been approved. Challis v. London & South Western Railway, 2 K. B. 1905, 154, 157; Brice v. Edward Llyod, Limited, 2 K. B. 1909, 804, 810; Holland-St. Louis Sugar Co. v. Shraluka (Ind. App.) 116 N. E. 330; Pace v. Appanoose County (Iowa) 168 N. W. 916; Hulley v. Moosbrugger, 88 N. J. Law, 161, 95 Atl. 1007, L. R. A. 1916C,
1203. See, also, Benson v. Bush, 178 Pac. 747, decided February 14, 1919.
In a case in which the decision was against the employe the general rule was thus stated and illustrated:
"The same right to compensation will follow if an injury arising from a risk of the business is suffered while the employe is doing something which, although quite outside of his obligatory duty, is permitted by his employer for their mutual convenience, such as eating his dinner on the premises, or any similar act to the performance of which the employer has assented. *** In the present case the commissioner has found, in substance if not in words, that the employer knew of his employes' custom of heating bottles in the dry room at the mouth of the hot-air pipe, and, upon principles familiar to courts before compensation acts were invented, the right to so heat bottles became, by the tacit consent of the employer, a term or condition added to the contract of employment, so that if the injury, which clearly arose from a risk of the business, had occurred while the claimant was engaged in heating his bottle at the customary time and place, he would doubtless have been entitled to compensation." Mann v. Glastonbury Knitting Co., 90 Conn. 116, 120, 121, 96 Atl. 368, 369 (L. R. A. 1916D, 86).
In a case where during the noon hour an employe was found crushed by an elevator it was said: "The deceased was required to take his lunch to the plant with him, and was permitted and expected to eat it upon the premises. No particular place was assigned to any of the employes to eat their lunch, but each man was permitted to eat it wherever he desired about the plant. All the employes used the elevator during the lunch hour as they had occasion to, just as they used it during the hours the plant was in operation. Whether the deceased was negligent in his operation of the elevator, or in attempting to get off while it was in motion, is immaterial. *** The proof amply sustains the finding that the accident arose out of and in the course of the employment." Humphrey v. Industrial Commission, 285 Ill. 372, 375, 120 N. E. 816, 817.
A workman has been allowed to recover under the compensation act where he caused an explosion by lighting his pipe near a gasoline can in a toolhouse, to which he had gone to eat his dinner, having violated no rule, and not knowing of the presence of the vapor. Haller v. Lansing, 195 Mich. 753, 162 N. W. 335, L. R. A. 1917E, 324. In Dzikowska v. Superior Steel Co., 259 Pa. 578, 103 Atl. 351, L. R. A. 1918F, 888, the employe was permitted to recover, where he set fire to his oily apron while lighting a cigarette; and in Whiting-Mead Commercial Co. v. Industrial Accident Co. (Cal.) 173 Pac. 1105, an employe's injury, due to his setting fire in the same way to a turpentine soaked bandage on his hand, was held to fall within this rule, quoted from another case:
"Such acts as are necessary to the life, comfort, and convenience of the servant while at work, though strictly personal to himself, and not acts of service, are incidental to the service, and injury sustained in the performance thereof is deemed to have arisen out of the employment. A man must breathe and occasionally drink water while at work. In these and other conceivable instances he ministers unto himself, but, in a remote sense, these acts contribute to the furtherance of his work. *** That such acts will be done in the course of employment is necessarily contemplated, and they are inevitable incidents. Such dangers as attend them, therefore, are incident dangers. At the same time injuries occasioned by them are accidents resulting from the employment." Archibald v. Workmen's Compensation Commissioner, 77 W. Va. 448, 451, 452, 87 S. E. 791, 792 (L. R. A. 1916D, 1013).
It would perhaps not unduly extend the principle to say that the employer might, under some circumstances, have an interest in his employe's taking suitable exercise in *376 a brief interval allowed for refreshment and rest.
Inasmuch as the evidence may be regarded as establishing that the play in which the plaintiff was injured had become a settled custom, with the knowledge and indeed the express approval of the foreman in charge of the department, and without objection on the part of any one, the court is of the opinion that her injury may be regarded, not only as having occurred in the course of her employment, but as having arisen out of it.
The judgment is affirmed.
All the Justices concurring.
Professor Goering Fall 2006LARW I Section A/B
Court of Appeals of New York.
LEONBRUNO v. CHAMPLAIN SILK MILLS et al.
229 N.Y. 470,* 128 N.E. 711**
Oct. 19, 1920.
**711 *470 Appeal from Supreme Court, Appellate Division, Third department.
*471 Jeremiah F. Connor, of Oneida, for appellants.
Charles D. Newton, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondent.
CARDOZO, J.
The claimant while engaged in the performance of his duties in the employer's factory was struck by an apple which one of his fellow servants, a boy, was throwing in sport at another, and as a consequence lost the better part of the sight of one eye. He did not participate in the horseplay, and had no knowledge of it till injured. The question is whether the accident was one 'arising out of and in the course of employment,' within the meaning of the statute (Workmen's Compensation Law, § 3, subd. 7; Consol. Laws, c. 67).
That it arose 'in the course of employment' is unquestioned. That it arose 'out of' employment, we now hold. The claimant's presence in a factory in association with other workmen involved exposure to the risk of *472 injury from the careless acts of those about him. He was brought by the conditions of his work 'within the zone of special danger.' Thom v. Sinclair, 1917 A. C. 127, 142. Whatever men and boys will do, when gathered together in such surroundings, at all events if it is something reasonably to be expected, was one of the perils of his service. We think with Kalisch, J., in Hulley v. Moosbrugger, 87 N. J. Law, 103, 93 Atl. 79, that it was 'but natural to expect them to deport themselves as young men and boys, replete with the activities of life and health. For workmen of that age or even of maturer years to indulge in a moment's diversion from work to joke with or play a prank upon a fellow workman, is a matter of common knowledge to every one who employs labor.' The claimant was injured, not merely while he was in a factory, but because he was in a factory, in touch with associations and conditions inseparable from factory life. The risks of such associations and conditions were risks of the employment. Thom v. Sinclair, supra; Matter of Redner v. Faber & Son, 223 N. Y. 379, 119 N. E. 842.
We think the precedents in this state, whatever variance of view there may be in other jurisdictions, sustain our present ruling. This case is not within the principle of Matter of De Filippis v. Falkenberg, 219 N. Y. 581, 114 N. E. 1064, and Matter of Stillwagon v. Callan Brothers, 224 N. Y. 714, 121 N. E. 893, where the claimant, joining in the horseplay, had stepped aside from the employment. Cf. Matter of Di Salvio v. Menihan Co., 225 N. Y. 123, 121 N. E. 766. This case is rather within the principle of Matter of Verschleiser v. Stern & Son, 229 N. Y. 192, 128 N. E. 126, where the claimant, while engaged in his work, was assaulted by
fellow workmen, who wished to tease and harass him. Cf. Markell v. Green Felt Shoe Co., 221 N. Y. 493, 116 N. E. 1060; Matter of Heitz v. Ruppert, 218 N. Y. 148, 112 N. E. 750, L. R. A. 1917A, 344. We do not overlook the cases in other jurisdictions. Hulley v. Moosbrugger, supra, was reversed by the New Jersey Court of Errors and Appeals in 88 L. J. Law, 161, 95 Atl. 1007, L. R. A. 1916C, 1203. It is in accord, however, with a decision *473 of the Supreme Court of Illinois. Pekin Cooperage Co. v. Industrial Board, 277 Ill. 53, 115 N. E. 128. English cases hostile to the award (Armitage v. Lancashire & Yorkshire Ry. Co., 1902, 2 K. B. 178; Fitzgerald v. Clarke & Son, 1908, 2 **712 K. B. 706) are inconsistent, it would seem, in principle with later rulings of the House of Lords (Thom v. Sinclair, supra; Dennis v. White & Co., 1917, A. C. 479. Cf. Matter of Redner v. Faber & Son, supra, and Matter of Grieb v. Hammerle, 222 N. Y. 382, 118 N. E. 805). They are certainly inconsistent with the broader conception of employment and its incidents to which this court is now committed. Matter of Verschleiser v. Stern & Son, supra. The risks of injury incurred in the crowded contacts of the factory through the acts of fellow workmen are not measured by the tendency of such acts to serve the master's business. Many things that have no such tendency are done by workmen every day. The test of liability under the statute is not the master's dereliction, whether his own or that of his representatives acting within the scope of their authority. The test of liability is the relation of the service to the injury, of the employment to the risk.
The order should be affirmed, with costs.
HISCOCK, C. J., and CHASE, HOGAN, POUND, CRANE, and ELKUS, JJ., concur.
In Error to the District Court of the United States for the District of Kansas; John C. Pollock, Judge.
Action by Raymond Connell against the Kansas City Fibre Box Company and others, removed from the state court. Judgment for plaintiff on directed verdict, and defendants brings error. Affirmed.
J. K. Cubbison, of Kansas City, Mo. (William G. Holt, of Kansas City, Mo., on the brief), for plaintiffs in error.
T. F. Railsback, of Kansas City, Kan. (J. H. Brady, of Kansas City, Kan., on the brief), for defendant in error.
Before STONE and KENYON, Circuit Judges, and SCOTT, District Judge.
KENYON, Circuit Judge.
This action is one brought by Raymond Connell against plaintiffs in error under the Workmen's Compensation Act of Kansas (Laws 1917, c. 226), to recover for personal injuries occurring March 21, 1923, while Connell was working in the manufacturing plant of plaintiffs in error on what is known as a corner cutting machine, being a device for trimming and cutting corners of boxes by means of sharp knives operated by power. His left hand became involved in said machine, and the second, third, and fourth fingers were cut off. It was claimed in the petition that he was entitled to compensation in the sum of $3,400 under the terms of said Workmen's Compensation Act. The case was commenced in the district court of Wyandotte county, Kan., and by defendant removed to the United States District Court for the District of Kansas. At the conclusion of the testimony the District Court directed a verdict for plaintiff in the sum of $585, which the court computed as the amount due under the act. The case is here on writ of error, based upon a number of assignments. However, only one question is involved on this writ, and that is: Did the injury to Raymond Connell result 'by accident arising out of and in the course of his employment'? The question is further narrowed by the undisputed situation that the injury was the result of an accident that it was 'in the course of employment.' It is the position of plaintiff in error that the injury was the result of sportive acts on the part of defendant in error and his coworker, and hence did not arise out of the employment.
Professor Goering Fall 2006LARW I Section A/B
The provision of the Workmen's Compensation Act of Kansas upon which this claim is based is as follows:
*399 'The Obligation. If in any employment to which this act applies, personal injury by accident arising out of and in the course of employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation to the workmen in accordance with this act. Save as herein provided no such employer shall be liable for any injury for which compensation is recoverable under this act.' Laws Kan. 1917, c. 226, Sec. 27.
The phrase 'arising out of and in the course of employment' is borrowed from the English Workmen's Compensation Act. That country early recognized the injustice of placing upon the employe all the burdens of industrial accidents, and sought to get away from the common-law rules of negligence as a basis of recovery. Underlying these acts, now adopted by numerous states, is a more humanitarian aspect toward men who work in great industries, and there has been a gradual growth and development of the law in this country along that line. These enactments are based on principles of natural justice, and are to provide for limited recoveries by workingmen in hazardous industries, even though there may be no negligence on the part of the employer, and though there may be negligence on the part of the employe. They are of benefit both to employer and employe, in that it relieves them from the great expense and uncertainty of litigation. Where machinery is destroyed or injured in industry, it is a part of the burden of industry to supply or repair such machinery. Why should the same theory not apply as far as practicable, where human machinery is injured in carrying on the work? There is economic loss in both cases. The burden is one of industry, and should not all be carried by the employe. The work of the hazardous industry cannot be successful, except by the effort of both employer and employe. If the employe suffer an industrial accident and is crippled thereby, there is no justice in turning him out without compensation, often leaving to him only the future of a corner beggar, because forsooth there may have been some little negligence on his part contributing to the injury, or inability to prove negligence on the part of the employer resulting in his injury.
. . . .
The Kansas act is similar to the acts of the various states. It is not an insurance statute, but has its limitations as to liability. This case arising under the Kansas statute, we would be bound by a construction given to the phrase in question by the Kansas court of highest authority. The decisions of the Supreme Court of Kansas bearing thereon we refer to hereinafter. That the Kansas courts are inclined to a liberal construction of the act to carry out its underlying purpose, we may say parenthetically, is evidenced by certain words of the opinion of that court in Messick v. McEntire, 97 Kan. 813, 816, 156 P. 740, 741, with reference to a case where they decided contributory negligence of claimant was no defense, viz: 'Nothing save his deliberate intention to cause the injury, his willful failure to use guards or protection provided for him, his deliberate breach of some statutory regulation, or his intoxication can deprive him of his statutory right to compensation for an injury.'
In instructing a verdict in this case the learned District Court drew a distinction between the law applicable to workmen of mature years and boys, saying: 'And, if put on as strong ground as you are contending for, any one who employs boys the age of this boy, or people of the age and intelligence of the party who was working with him, knows they are going to be playful and
reckless, and so on, know it when they employ them.'
The writer of this opinion believes the *400 distinction drawn by the District Court is sound, and that, if an employer places boys as coworkers with others in hazardous employment, he is charged under these Workmen's Compensation Acts with what may happen from the curiosity, zeal, vigor, and boyishness of said boys; that such is a risk reasonably incident to the employment, and if injury result to an employe therefrom during the progress of the work in which he is employed, through the curiosity or pranks such as boys of immature age are wont to indulge in, and which the employer must be held to know of when he employs them, the injury is one 'arising out of the employment.' The difficulty as to that theory in this case is that there is no evidence in this record that Connell or his coworker, Mergen, were boys. Connell, the record shows, was 21 years of age and over. We find nothing in the record to show the age of Mergen. Certainly a person over 21 years of age can scarcely be placed in the category of boys.
. . . .
Workmen's Compensation Acts have been productive of a multiplicity of decisions in the British courts and in the various courts of the United States, embracing the construction of the term in question. There has been much refinement of reasoning and confusion of the doctrines of negligence in these decisions, where it properly has no place, until in trying to evolve any rule as a safe guide to determine when an accident is one 'arising out of the employment' one is lost in a labyrinth of judicial utterance. We refer to a few only of the many cases in this country where the term 'arising out of employment' has been considered.
One of the leading cases, perhaps more often referred to than any other, is In re McNicol, 215 Mass. 497, 102 N.E. 697, L.R.A. 1916A, 306, where the court referring to the injury said: 'It arises 'out of' the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a casual 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. *401 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.' . . . .
It is strenuously urged on the part of the plaintiffs in error that at the time of this accident Connell and his coworker were engaged in sportive acts, which have been characterized by the courts as 'horseplay,' and that consequently the injury was not one 'arising out of employment.' Boyd on Workmen's Compensation, Sec, 476, states the rule to be that 'injuries the result of a spirit of playfulness on the part of the injured servant or his fellows are generally held not
received in the course of employment.' See Bradbury's Workmen's Compensation Law, p. 100.
Stuart v. Kansas City, 102 Kan. 307, 310, 171 P. 913, 914, quotes with approval from Workmen's Compensation Acts, a Corpus Juris treatise by Donald J. Kiser, at page 79, as follows: 'An employee is not entitled to compensation for an injury which was the result of sportive acts of coemployes, or horseplay or skylarking, whether it is instigated by the employe, or whether the employe takes no part in it. If an employe is assaulted by a fellow workman, whether in anger or in play, an injury so sustained does not arise 'out of the employment,' and the employe is not entitled to compensation therefor, unless in a case where the employer knows that the habits of the guilty servant are such that it is unsafe for him to work with other employes.'
In White v. Stockyards Co., 104 Kan. 90, 177 P. 522, the same doctrine is held, that ordinarily a master is not liable under the Compensation Act for injuries to workmen which have been caused through the mischiefs, pranks, and jokes of his coemployes, unless the master has knowingly permitted such pranks to continue. Same doctrine, Thomas v. Manufacturing Co., 104 Kan. 432, 437, 179 P. 372, 375 (6 A.L.R. 1145) although this language in that case is significant: 'The plaintiff's participation in the use of the truck would not seem necessarily to bar her recovery; her conduct being of a kind to be expected in girls of her age, and the question of her want of care not being material, the action not being founded on her employers's negligence.'
. . . .
These cases fairly show the construction put upon the act by the Kansas courts, viz. that where employes turn aside from their work and engage in sportive acts, commonly referred to as 'horseplay,' and the accident is the result of injury received thereby, there cannot be recovery under the Workmen's Compensation Act (barring question of immature boys heretofore referred to, and which we pretermit). That the courts are not unanimous on this question is shown by the following authorities:
In *403 Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 473, 128 N.E. 711, 712 (13 A.L.R. 522), an employe, while devoting his time to work, was struck in the eye by an apple thrown by a fellow servant engaged in horseplay. It was held the injury was one 'arising out of and in the course of his employment.' The court said: 'The risks of injury incurred in the crowded contacts of the factory through the acts of fellow workmen are not measured by the tendency of such acts to serve the master's business. Many things that have no such tendency are done by workmen every day. The test of liability under the statute is not the master's dereliction, whether his own or that of his representatives acting within the scope of their authority. The test of liability is the relation of the service to the injury, of the employment to the risk.'
In Stark v. State Industrial Acc. Commission, 103 Or. 80, 100, 204 P. 151, 157, the court said: 'It might be remarked parenthetically that it is not to be supposed that a crew of men could be obtained, unless some of them during working hours would play practical jokes on their fellow workmen, especially if such men were red-blooded Americans.' See, also, Newport Hydrocarbon Co. v. Industrial Commission, 167 Wis. 630, 167 N.W. 749.
However the general rule of the authorities, and with which the Kansas decisions are in line, is well stated in Annotations to Workmen's Compensation Acts. L.R.A. 1918E, 504, as follows:
'The general rule, recognized by practically all of the courts, both under the English act and under the various American statutes, is that injuries caused by some sportive act of fellow workmen, done independently of and disconnected from the performance of any duty of the employment, does not arise out of the employment within the meaning of the compensation statutes, and, consequently, no compensation will be allowed for such injuries.' This doctrine is supported by a great majority of the cases. Plaintiff in error in its brief adopts it as the correct rule; we think it is, and measure the case by it.
The line of demarcation between sportive acts of employes done independently of and disconnected from the performance of duty and those in a manner connected with the performance of duty is difficult at times to distinguish, owing to the interweaving of the facts. Was the injury to defendant in error here the result of sportive acts, independent of and disassociated from the performance of any duty of the employment? This requires a close and careful analysis of the testimony.
. . . .
Does the testimony, with all its fair *405 and natural inferences, indicate that defendant in error's injuries were received 'independently of and disconnected from the performance of any duty of the employment'? It must be borne in mind that at the very time of this injury defendant in error was actually engaged in the performance of a duty of his employment. He was operating a dangerous piece of machinery with his coworker, Mergen, the Greek. His attention to his work was attempted to be diverted by the act of Mergen holding his cap on a stick. His duty to his employer was to keep on working, and to stop the interference with his work by Mergen. This he attempted to do. He pulled a skull cap of Mergen's off his head and put it on the machine, or a table in front of it, and Mergen shoved the box in and cut the cap. The shoving of the box was a part of Mergen's work. Connell, perhaps, did not choose the best way to stop Mergen's interference with his work. It may have been crude. He reciprocated to some extent the play as to the caps started by Mergen. If he ceased work at all, it was but momentary. There was no turning aside from the machine and from the work, and engaging in a fight, a scuffle, or horseplay, as in the case of Romerez v. Swift & Co., 106 Kan. 844, 189 P. 923, hereinbefore referred to, and in the hose cases, Tarpper v. Weston-Mott Co. et al., 200 Mich. 275, 166 N.W. 857, L.R.A. 1918E, 507, Federal Rubber Mfg. Co. v. Havolic et al., 162 Wis. 341, 156 N.W. 143 L.R.A. 1916D, 968, and also as in De filippis v. Falkenberg et al., 170 App.Div. 153, 155 N.Y.S. 761. It is as reasonable to suppose that he was trying to stop the interference with his work as that he was engaging in any personal horseplay with his coworker. His injury certainly was not due entirely to the scuffling or playing. It was due to a combination of the playful acts, if they can be so designated, and the employment in connection with the dangerous machine. The acts were not entirely independent or of disassociated from the performance of his duty. His coworker was evidently trying to delay him and bother him. He was trying to stop this interference. The sportive acts of the workman, at least as to defendant in error, were not independent of their work. If Mergen had attempted to stop his work at the machine he certainly would have been carrying out his duty to him employer in trying to prevent him from so doing. Here Mergen kept on with his work during the attempt to bother and annoy Connell. In nearly all of the cases where the sportive acts are held to take the case out of the rule of injury arising out of the employment, there was a turning away from work and engaging in a personal encounter or horseplay, so called, not connected in any way with the performance
of any duty to the employer, but as the result of mere personal desire or whim. Here Connell in part, at least, was serving his employer by trying to stop interference with his work, and Mergen combined sportive acts with his work.
While in the Stuart v. Kansas City Case, 102 Kan. 307, 171 P. 913, heretofore referred to, the party injured was engaged in his work, that question does not seem to have been considered by the court, but the decision was based on the fact that the custom of pranks and jokes on the part of the injured party's fellow workman was known to his immediate superiors. Injury in that case was not the result of any effort by Stuart to prevent the party interfering with his work, and the company employe causing the injury was doing something entirely apart from his duties. The rule, stated in that case from Corpus Juris with approval, refers to injury sustained as the result of sportive acts. Here the injury sustained was not the result of sportive acts entirely disconnected from the employment. While the question is a close one, a careful analysis of the actual occurrence, and consideration of all the circumstances, shows, we think, that the alleged sportive acts of defendant in error and his coworker, were not 'done independently and disconnected from the performance of any duty of the employment.' It would not seem that the broad purpose of the Workmen's Compensation Acts should be defeated by a circumstance somewhat trivial such as presented here, where the parties did not turn from their work and engage in the alleged horseplay, but where both were going ahead with their work, and one of them at least resorted to the sportive act as a means of preventing further annoyance or interference with his labor.
The judgment is therefore affirmed.
STONE, Circuit Judge (dissenting). This is an action for personal injuries under the Workmen's Compensation Act of the state of Kansas. From a judgment on a directed verdict, defendant sues this writ of error. The accident was caused by Connell throwing his hand in the way of moving knives on a box-cutting machine during a playful scuffle which arose between him and his fellow workman while they were working at the machine. The play arose over the caps of *406 the two workmen and the threatened move of the other workman to put Connell's cap where it would be cut by the knives. But one question is presented here. That question is whether the master is liable, under the Kansas Workmen's Compensation Act, for injuries resulting from playful pranks between workmen of age where the employer has not notice or knowledge of such habits or play and does not permit it. Of course, the answer to this question has to be sought in the proper construction to be given that act. The construction of a state statute is a matter of local law; therefore, the decisions of the Supreme Court of Kansas must be examined to ascertain whether that court has determined the question before us. If it has, that decision is binding here.
There are several cases, not involving injuries from pranks or play, which state generally the view of the Supreme Court of Kansas as to how the cause or occasion of the injury must be connected with the employment to come within the act.
. . . .
Fortunately, we are not left to apply such general statements of the rule to cases, like the present, where the injury is the direct result of playfulness or pranks. The Kansas Supreme Court has considered liability from such causes in the cases of Thomas v. Manufacturing Co., 104 Kan.
432, 179 P. 372, 6 A.L.R. 1145, White v. Stockyards Co., 104 Kan. 90, 177 P. 522, and Stuart v. Kansas City, Kansas, 102 Kan. 307, 171 P. 913, and 102 Kan. 563, 171 P. 913. Stuart v. Kansas City, Kansas, 102 Kan. 307, 171 P. 913 (on rehearing 102 Kan. 563, 171 P. 913), was an eye injury to plaintiff from mortar thrown in sport by a fellow workman during the course of the work. The instruction of the trial court permitted recovery irrespective of the notice or knowledge of defendant as to the habit of the workman, who threw the mortar, to engage in dangerous play. Because of this error in the instruction, the case was reversed, the Supreme Court, at page 310 (171 P. 914), saying:
'A clear and concise statement of the law governing compensation for injuries to employees caused by play is found in Workmen's Compensation Acts, a Corpus Juris treatise, by Donald J. Kiser (page 79), and is as follows: 'An employee is not entitled to compensation for an injury which was the result of sportive acts or coemployees, or horseplay or skylarking, whether it is instituted by the employee, or whether the employee takes no part in it. If an employee is assaulted by a fellow workman, whether in anger or in play, an injury so sustained does not arise 'out of the employment,' and the employee is not entitled to compensation therefor, unless in a case where the employer knows that the habits of the guilty servant are such that it is unsafe for him to work with other employees.' The rule there declared is supported by Western Indemnity Co. v. Pillsbury, 170 Cal. 686; McNicol's Case, 215 Mass. 497; Scott v. Payne Bros., 85 N.J.Law, 446; In re Loper (Ind. App.) 116 N.E. 324; Clayton v. Hardwick Colliery Co., 85 L.J.K.B. 292. Under these authorities the rule is that where a workman, known by his master to be in the habit of indulging in dangerous play with his fellow workmen, is retained in the master's employ, the danger of injury from such play becomes an incident of the employment of the other workmen, and injury to any of the other workmen, while performing his regular work, caused by such play, comes within the provisions of the Workmen's Compensation Act.'
In a short opinion denying a rehearing, the court accentuated its position (102 Kan. 563, 171 P. 913), by saying:
'The plaintiff has filed an application for a rehearing, and, in that application, asks that, if a rehearing is denied and the judgment stands reversed, the new trial be directed on the proposition on which the judgment was reversed. The judgment was reversed on the ground that an instruction was erroneous because it did not submit to the jury the question of the defendant's knowledge of the dangerously playful habits of William Deeds, a fellow workman with *407 whom the plaintiff was working at the time of his injury. of his injury.
'The judgment of reversal is adhered to, and a new trial is granted on the following questions: (1) Was the plaintiff injured by William Deeds, accidentally or in sport? (2) If the plaintiff was injured by William Deeds in sport, was William Deeds in the habit of indulging in dangerous play with his fellow workmen? (3) If William Deeds was in the habit of indulging in dangerous play with his fellow workmen, did the defendant have notice or knowledge of that habit?'
To the same effect is the case of White v. Stockyards Co., 104 Kan. 90, 177 P. 522. Also, see statement in Monson v. Battelle, 102 Kan. 208, at page 213, 170 P. 801. Both the Stuart and the White Cases were instances of injuries to adults from the pranks of other adults.
Admitting that the above rule would govern if the injury was occasioned to and by an adult,
defendant in error contends that a different application of the rule must be made as to children or youths. His position is that although there would have to be proof of notice and knowledge in the employer respecting the habit of dangerous play if the injury concerned adults alone; yet, as to children or youths, this notice and knowledge must be conclusively presumed to exist because the playfulness and recklessness of young people is universally known. . . . .
. . . .
There was no evidence of any custom or habit of playing, either by the workman causing the injury or by others. There was, of course, no evidence of notice or knowledge in the employer as to playing. Although this scuffling and play arose while the injured man was working, yet he voluntarily participated therein, and it was while playing and as a direct result of such playing that the injury resulted. I am unable, upon the facts, to distinguish this case from the Stuart Case, supra, where the injury occurred while the parties were at their work.
I think the case is governed by the Kansas decisions cited and should be remanded.
Professor Goering Fall 2006LARW I Section A/B
Supreme Court of Tennessee.
BORDEN MILLS, Inc. v. McGAHA.
161 Tenn. 376, 32 S.W.2d 1039*
Nov. 28, 1930.
Error to Law Court of Sullivan County; H. T. Campbell, Judge.
*1040 Carl K. Kirkpatrick and Worley, McAmis, & Hauk, all of Kingsport, for plaintiff in error.
Dodson & Ferguson and Kelly & Penn, all of Kingsport, for defendant in error.
GREEN, C. J.
This suit was brought by an employee of the plaintiff in error to recover under the workmen's compensation statute for injuries alleged to have been sustained by her, arising out of and in the course of her employment. There was an award in her favor below.
No question is made as to the amount of award, nor is it denied that the employee is disabled as claimed. The defenses to the suit are three: (1) That the statutory notice was not given; (2) that the employee is suffering from a disease not brought about from injury; and (3) that the injury, if responsible for the disease, did not arise out of and in the course of her employment.
We think that the employer waived the notice. Within thirty days of the alleged injury, the father of the girl called on the superintendent of the employer, told of her condition, and stated her claim. The superintendent expressed the opinion that the girl's condition was not due to any injury she had received, but to disease, and declined unequivocally to pay her any compensation. In view of this flat denial of liability on the part of the superintendent, a written notice would have been an idle ceremony. Such being the facts, we think the employer waived the written notice, just as a denial of liability on the part of an insurance company waives a written notice for which the policy provides. Insurance Co. v. Hancock, 106 Tenn. 513, 62 S. W. 145, 52 L. R. A. 665; Insurance Co. v. Thornton, 97 Tenn. 1, 40 S. W. 136.
Four doctors testified on the trial below. It appears that the employee is suffering from ankylosis of the right wrist, resulting in a 50 per cent. loss of the use of her right hand. Two of the doctors were of opinion that the injury she claimed to have received had no connection with her condition. Two of the doctors were of opinion that this injury either induced or aggravated the disease. She and members of her family testified that, prior to the injury, she had full use of this hand. Upon such proof the trial judge found in favor of the employee, and we cannot disturb his finding.
The employee testified that she worked in the mill at night; that she reported shortly before 6:30 p. m., when she was due to go to work; that at 6:30 p. m. she was sitting on a box at her place of work waiting for the frames at which she worked to be brought up. It appears that this box was
mounted on wheels. While she was sitting, as stated, another employee, in a spirit of fun, came up behind her, began pushing the box, and rolled her rapidly up the floor of the room. In making a turn she was thrown off the box, and claims to have fallen on her wrist and injured it. She and her family describe the subsequent soreness and swelling of this member.
It has been held in a number of cases that compensation is not recoverable by an employee for injuries sustained through horseplay or skylarking, done independently or disconnected from the performance of any duty of the employment, on the ground that such injuries did not arise out of the employment. Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 P. 212, L. R. A. 1916F, 1164; White v. Kansas City Stock Yards Co., 104 Kan. 90, 177 P. 522; Moore's Case, 225 Mass. 258, 114 N. E. 204; Payne v. Industrial Commission, 295 Ill. 388, 129 N. E. 122, 13 A. L. R. 518.
Other cases, under facts quite similar, hold that such injuries do arise out of and in the course of the employment. Socha v. Cudahy Packing Co., 105 Neb. 691, 181 N. W. 706, 13 A. L. R. 513; Leonbruno v. Champlain Silk Mills, 229 N. Y. 470, 128 N. E. 711, 13 A. L. R. 523; Glenn v. Reynolds Spring Co., 225 Mich. 693, 196 N. W. 617, 36 A. L. R. 1464.
Other cases, presenting each view, are collected in A. L. R. notes vol. 13, 540; vol. 20, 882; vol. 36, 1469; vol. 43, 492; vol. 46, 1150.
In Leonbruno v. Champlain Silk Mills, supra, the employee was struck by an apple which one of his fellow servants was throwing in sport at another, and the New York Court of Appeals said:
"That it arose 'in the course of employment' is unquestioned. That it arose 'out of' employment, we now hold. The claimant's presence in a factory in association with other workmen involved exposure to the risk of injury from the careless acts of those about him. He was brought by the conditions of his work 'within the zone of special danger.' Thom v. Sinclair, 1917 A. C. 127, 142, [[[86 L. J. P. C. N. S. 102, 116 L. T. N. S. 609, 33 Times L. R. 247, 61 Sol. Jo. 350, 10 B. W. C. C. 220, Ann. Cas. 1917D, 188.] Whatever men and boys will do, when gathered together in such surroundings, at all events if it is something reasonably to be expected, was one of the perils of his service. We think with Kalisch, J., in Hulley v. Moosbrugger, 87 N. J. Law, 103, 93 A. 79 [8 N. C. C. A. 283], that it was 'but natural to expect them to deport themselves as young men and boys, replete with the activities of life and health. For workmen of that age or even of maturer years to indulge in a moment's diversion from work to joke with or play a prank upon a fellow workman, is a matter of common knowledge to every one *1041 who employs labor.' The claimant was injured, not merely while he was in a factory, but because he was in a factory, in touch with associations and conditions inseparable from factory life. The risks of such associations and conditions were risks of the employment. Thom v. Sinclair, supra; Matter of Redner v. H. C. Faber & Son, 223 N. Y. 379, 119 N. E. 842."
Some of the decisions make a distinction between cases in which the injured employee is engaging in the horseplay or skylarking and cases in which the injured employee took no part therein but was attending to his duties. Hollenbach Co. v. Hollenbach, 181 Ky. 262, 204 S. W. 152, 13 A. L. R. 524; Markell v. Daniel Green Felt Shoe Co., 221 N. Y. 493, 116 N. E. 1060; Willis v. State Industrial Commission, 78 Okl. 216, 190 P. 92; Newport Hydro Carbon Co. v. Industrial Commission, 167 Wis. 630, 167 N. W. 749.
This seems to us a sound distinction, for, if the injured employee is participating in foolishness, it seems to us a question may then arise as to whether he has so departed from his employment. Otherwise, if he is proceeding in his employment and injured by the foolishness of another in which he did not participate.
The expression of the New York Court of Appeals heretofore quoted seems in line with previous decisions of this court. Early-Stratton Co. v. Rollison, 156 Tenn. 256, 300 S. W. 569; Carmichael v. Mahan Motor Co., 157 Tenn. 613, 11 S.W.(2d) 672, 673. In the latter case it was said that "an injury 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." For the reasons stated by the New York court, we think that such causal connection exists here.
Carl I. Winsor, of Wichita (Harlin E. Bond and Rupert Teall, both of Wichita, on the brief), for appellant.
John F. Eberhardt, of Wichita (Robert C. Foulston, George Siefkin, Samuel E. Bartlett, George B. Powers, Carl T. Smith, Stuart R. Carter, and Thomas E. Woods, all of Wichita, on the brief), for appellees.
HOCH, Justice.
The question presented by this appeal is whether an injury to an employee suffered as a result of a sportive act or 'horseplay' in which he was indulging, is compensable under the Workmen's Compensation Act. Gen.St.1935, 44-501 et seq. The commissioner and the district court upon appeal denied compensation on the ground that the injury did not arise out of the employment. The claimant appeals.
We are not here dealing with any question of controverted fact. At the hearing before the commissioner there was some conflict *323 of testimony as to the circumstances under which the injury took place, but this conflict was resolved against the claimant by the commissioner and the commissioner's finding was affirmed by the district court. The finding of fact is conclusive here since it is not our function to weigh conflicting evidence. G.S.1935, 44-556; Goss v. McJunkin Flying Service, 157 Kan. 684, 143 P.2d 659; Scott v. Kansas Western Pipe Line Co., 158 Kan. 160, 146 P.2d 366. Appellant concedes this to be true and rests his case entirely upon the contention that an injury resulting from horseplay indulged in under circumstances of employment here existing should be held to be one **645 ' arising out of' the employment, and therefore compensable under the Act.
Appellant was employed as an 'expediter' by the respondent, his duties being to see that the flow of production through his department was kept moving. At a time when apparently there was a lull in the work, some of the employees, including appellant, engaged in the pastime of attempting to lift and raise above their heads a large roll of waxed paper which was standing in the aisle of the department. There was some wagering among them as to whether they could perform the feat. While the appellant had the roll of paper balanced upon one hand and was attempting to raise it above his head, it slipped and fell against his neck causing the injury of which he now complains. Appellant does not contend that this horseplay had been a matter of common practice or that the employer had any knowledge concerning it or had in any way
acquiesced in it. On the contrary, the only testimony here shown upon the point is that of the assistant foreman who was in charge of that department who testified that on the day before the accident happened, he saw two or three employees attempt to lift the paper and told them it was too heavy to lift, and to leave it alone or they would get hurt. Appellant says that one of the employees who had engaged in the sport testified that he had played with this roll of paper on occasions before and that 'there were no certain rules against playing with rolls of paper.'
The Workmen's Compensation Act covers only personal injuries 'by accident arising out of and in the course of employment.' G.S.1935, 44-501. We have repeatedly held that the phrase 'arising out of' implies some causal connection between the accidental injury and the employment. Rush v. Empire Oil & Refining Co., 140 Kan. 198, 34 P.2d 542. 'If the injury did not result directly from performance of the work for which the workman was *324 employed it must at least have been suffered while performing some act which was normally and commonly incident to such work.' Brandon v. Lozier-Broderick & Gordon 160 Kan. 506, 509, 163 P.2d 384, 386. The burden is upon the claimant to show that the injury was one 'arising out of' the employment. Jones v. Lozier-Broderick & Gordon, 160 Kan. 191, 195, 160 P.2d 932, 935; McMillan v. Kansas Power & Light Co., 157 Kan. 385, 139 P.2d 854.
On this record it is unnecessary to examine the cases in which the employee was injured as the result of sportive acts or horseplay commonly indulged in by other employees with the knowledge and acquiescence of the employer, but in which he was not a participant. Appellant concedes that most of the 'older' cases have held that the claimant could not recover where he was a participant in the horseplay which resulted in the injury and that in some cases recovery has been denied even where he was not a participant but was the innocent victim of the horseplay of fellow employees.
Appellant's contention is that there is a 'modern trend' which should be followed, away from the old rule which denied recovery where the claimant's own act of horseplay resulted in injury. He argues that the stresses and strains resulting from the close association of employees under conditions common to modern industry inevitably lead to pranks, to sportive acts or horseplay between them, and that the injuries resulting from such acts, even by a participant, should be regarded as one of the perils of the employment which the Compensation Act was intended to cover. Whatever persuasion there may be in that argument, it is one to be addressed to the legislature and not to the court, in view of the construction repeatedly and consistently given to the act.
We find no decision of this court allowing compensation in a case in which the claimant was injured as the result of some play or sportive act of his own. Indeed, compensation has been denied even where the injured employee was not a participant unless it has been shown that the horseplay or dangerous practice on the part of the employees had become a customary thing known to and acquiesced in by the employer.
A few typical quotations from Kansas cases will suffice. In White v. Kansas City Stock Yards Co., 104 Kan. 90, 177 P. 522, it was said:
'It has also been held that, while ordinarily a master is not liable under the compensation act for injuries to a workman which have been caused through the mischievous pranks and sportive
jokes of his coemployes, yet the rule is otherwise where the master has knowingly permitted such mischievous pranks *325 to continue. In such cases the danger of injury becomes an incident **646 of the employment.' (Italics supplied.)
From Thomas v. Proctor & Gamble Manufacturing Co., 104 Kan. 432, 179 P. 372, 375, 6 A.L.R. 1145:
'If the present case is to be taken out of the general rule, it must be upon the ground that the habit of the girl employes to play with the trucks during the noon intermission, with the knowledge and express consent of the foreman, and without objection by anyone representing the defendant, made such practice one of the conditions under which the business was carried on, upon much the same principle as employers are held liable for results of horseplay which had grown into a custom.' (Italics supplied.)
The opinions in the Kansas City Stock Yards Co. and Proctor & Gamble Manufacturing Co. cases, supra, cited Stuart v. Kansas City, 102 Kan. 307, 171 P. 913, 914, wherein it was said:
'Under these authorities the rule is that where a workman, known by his master to be in the habit of indulging in dangerous play with his fellow workmen, is retained in the master's employ, the danger of injury from such play becomes an incident of the employment of the other workman, and injury to any of the other workmen, while performing his regular work, caused by such play, comes within the provisions of the workmen's compensation act.' (Italics supplied.)
See also Monson v. Battellee, 102 Kan. 208, 170 P. 801; Peavy v. C. W. Merydith Contracting Co., 112 Kan. 637, 211 P. 1113, 29 A.L.R. 435; Covert v. John Morrell & Co., 138 Kan. 592, 27 P.2d 553; Finck v. Galloway, 139 Kan. 173, 29 P.2d 1091; Addington v. Hall, 160 Kan. 268, 160 P.2d 649.
The construction placed upon our statute is in harmony with overwhelming weight of authority. 71 C.J. 681; 28 R.C.L. 811. The latest annotation on the subject is found in 159 A.L.R. (1945) beginning at page 319, and supplementing prior annotations therein noted. The general rule of non-compensability is there again restated, citing many recent decisions from fifteen jurisdictions. Even from recent cases cited wherein compensation was allowed, the annotator makes he following deduction:
'Many of the later cases recognize that an exception should be made, and the right of compensation sustained, where an employee who was injured through horseplay or fooling by other employees took no part in it, but was attending to his duties, or endeavoring to do so, the general theory, although expressed in different ways, being that there is in such a case no such departure from duty by the injured employee as should bar him from recovery, and that such a contingency should in reality be considered as a risk or condition of the employment, being far different, at least in degree, from a case of voluntary participation or deliverate aggression.' (Italics supplied.)
*326 Appellant supports his contention with a few cases from other jurisdictions. Some of them are readily distinguishable from the one before us and in any event they represent the view of a small minority. It is not necessary to lengthen this opinion by examining these cases.
From general textbook discussions, the appellant cites only a comment from 159 A.L.R. 319--from which we have already noted a restatement of the general rule--and a statement from Horovitz on Workmen's Compensation (1944). Examination of the two statements and their context affords little support for a departure from the general rule long adopted in this state. The statement cited from 159 A.L.R. is simply that:
'Several cases have taken a somewhat advanced position with respect to the essential character and admitted frequency of ordinary horseplay in its relation to modern industrial conditions, holding that not all conduct of this character, although originating in some act of the injured employee, is to be considered as a departure from duty, or as penalizing him for all the consequences which may follow.' (Italics supplied.)
The statement quoted from the textbook by Horovitz is:
'The more recent tendency is to allow an award without regard as to who was the immediate aggressor [in horseplay.] where the injury is a by-product of associating men in close contacts, recognizing the 'strains and fatigue from human and mechanical impacts.''
But this was only part of the paragraph from which the quotation was taken. The statement had reference primarily to cases in which the injured workman was not a **647 participant in the horseplay. The part of the paragraph immediately preceding the above quotation is as follows:
'Horseplay or larking among employees is unfortunately too common. The use of the power hose and other means of 'goosing' has caused many injuries or deaths to innocent victims, as has the throwing of nails, apples and like objects by employees who think pranks 'funny'. Does not the placing of employees in close proximity increase the risk of injury and make the result conpensable? Courts disagree, the more liberal ones placing the burden on the offending industry, where the injured man is an innocent victim and does not take part in the horseplay . The aggressor is usually denied recovery. Massachusetts denied recovery even to innocent victims, and finally came into line by statute in 1937.' (Italics supplied.)
It follows from what has been said that appellant's injury did not arise out of the employment.
Professor Goering September 7, 2006LARW I Section A/B
Supreme Court of Kansas
Lottie M. CARTER, Appellant,
v.
ALPHA KAPPA LAMBDA FRATERNITY, INC. (Iota of Alpha Kappa Lambda Alumni, Inc.)
and Travelers Insurance Company, Appellees
No. 44568
197 Kan. 374,* 417 P.2d 137**
July 14, 1966.
C. K. Sayler, Topeka, argued the cause, and Richard C. Wells, Manhattan, and Edwin D. Smith, Topeka, were with him on the brief, for appellant.
Roscoe E. Long, Topeka, argued the cause, and O. B. Eidson, Philip H. Lewis, James W. Porter, Charles S. Fisher, Jr., William G. Haynes, Peter F. Caldwell, R. Austin Nothern, and Brock R. Snyder, Topeka, were with him on the brief, for appellees.
**138 HARMAN, Commissioner.
In this workmen's compensation case recovery was denied claimant by the examiner for the workmen's compensation director, by the director, and upon appeal by the district court for the reason that the alleged accidental injury did not arise out of and in the course of her employment, and she appeals to this court.
There was but slight conflict in the evidence. Where conflict does exist, upon review the evidence must be considered in the light most favorable to the prevailing party in the court below (Callahan v. Martin K. Eby Construction Co., 192 Kan. 814, 391 P.2d 315) and the essential facts may therefore be summarized as follows: Claimant, a cook in the employ of respondent fraternity, while on duty as such prior to the incident in question had participated in horseplay among the houseboys who also worked in the kitchen with claimant. This horseplay had consisted of, among other things, tossing water upon one another. Upon the evening of the incident in question one of the houseboys, one Cole, had thrown a piece of bread at claimant and hit her in the back of the neck. Cole told her that another houseboy, John Hamilton, had thrown the bread, whereupon *375 claimant and Hamilton had some conversation and then claimant and Hamilton tossed some water upon each other. This episode ended without any untoward consequences and Hamilton went on with his work in the dining room preparing the tables for dinner. Some fifteen or twenty minutes later Hamilton returned to the kitchen. Claimant drew a large can of hot water from the faucet and put it on the stove. She called Hamilton to her and threatened to pour the water on him. Hamilton told her not to throw the water upon him, but she attempted to do so. As found by the examiner, Hamilton struck her, causing her to fall to the floor and sustain the injury of which she complains. Evidence on behalf of the
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respondent indicated that Hamilton had a good reputation, that he was not considered a troublemaker, that he had never had any trouble with claimant, and that he was generally considered cooperative, helpful and dependable.
The examiner in concluding that the alleged injury did not arise out of and in the course of the employment found that a blow from Hamilton caused the claimant to fall and
'* * * that the injury caused by the fellow employee, John B. Hamilton, was unexpected, that the Respondent had no reason to believe that the Claimant would be subjected to an assault, nor had any reason to believe that John B.Hamilton was a turbulent or violent character. On the other hand, it appears that the Claimant participated in the horseplay and in fact was the aggressor and brought about the assault * * *,'
and he denied award of compensation. These findings were later approved and adopted by the director and the trial court.
The workmen's compensation act covers only accidental injury 'arising out of and in the course of employment * * *' (K.S.A. 44-501).
Claimant would have us treat this case merely as one of horseplay and apply the rule that the participant in so-called horseplay may recover compensation for his injury as a result of his own horseplay where the horseplay has become a regular incident of the employment, and indeed this court has so held. In Thomas v. Proctor & Gamble Manufacturing Co., 104 Kan. 432, 179 P. 372, 6 A.L.R. 1145, recovery of compensation was permitted a seventeen year old girl who was injured during the noon hour by falling from a small truck upon which she and other girls were riding for amusement, and which they had been in the habit of so using to the knowledge and without the objection of the employer.
Unfortunately for claimant we have here a different situation, *376 and the test of whether or not an incident arose out of and in the course of the employment must **139 depend in each case on its own peculiar facts. It was specifically found here by the trier of the fact that previous horseplay had concluded and that any injury was the result of an assault by a fellow employee. An assault is properly act of horseplay or a playful sportive act of horseplay or frivolity. The rule in Kansas is well established that if an employee is intentionally injured by another employee, he cannot recover compensation unless the wrongful conduct has become habitual and the habit known to the employer. In Hallett v. J. T. Mc.Dowell & Sons, 186 Kan. 813, 352 P.2d 946, this comment on several Kansas cases therein cited is made:
'Suffice it to say running through all of them is the rule that if an employee is assualted by a fellow workman, whether in anger or in play, an injury so sustained does not arise 'out of the employment' and the employee is not entitled to compensation unless the employer had reason to anticipate that injury would result if the two continued to work together.' (p. 817, 352 P.2d p. 949.)
The question of whether there has been an accidental injury arising out of and in the course of the employment is a question of fact and when determined by the district court the finding will not be disturbed by this court where there is substantial evidence to
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sustain it (Atwell v. Maxwell Bridge Co., 196 Kan. 219, 409 P.2d 994).
The findings of the district court to the effect that there was an assault upon claimant, that it was unexpected and that respondent had no reason to believe she would be subject to such an assault, and the consequent conclusion that the injury did not arise out of the employment were fully supported by the evidence. The fact that claimant may have provoked the assault certainly cannot add to her cause.
