Pepka Spring Co. v. Jones , 175 Ind. App. 285 ( 1978 )

SULLIVAN, P.J.

—The Industrial Board of Indiana entered an award granting Workmen’s Compensation benefits to Jones on September 12, 1975. His employer, Pepka Spring Company, Inc. (Pepka), appeals the award as contrary to law. We have reviewed the evidence of record and the findings of the Board in light of the legal issues presented and find no error which requires reversal.

Jones was employed by Pepka when, on August 6, 1973, he received a laceration of the cornea of the right eye as a result of a fellow employee having hurled a spring at him. Pepka contends that this injury was an outgrowth of activity which is commonly called “horseplay” and which under certain circumstances relieve an employer from liability under the Indiana Workmen’s Compensation Act, I.C. 22-3-2-2 (Burns Code Ed. 1971).¹

Spring-throwing and other kinds of playful diversion had occurred over a period of time prior to the day of the accident. However, an outbreak of spring-throwing, which culminated in the injury, was particularly pervasive on that day.

The accident occurred at 3:30 in the afternoon. Shortly before he was injured, Jones had apparently thrown a spring at Michael Host, a co-employee. Jones then left his job to get a drink of water, after which he returned to his work station. While bending over to check the position of a cable which he was required to remove before commencing his assigned work he was hit by a spring thrown by Mr. Host. Jones admitted participation in spring-throwing shortly before, but whether he had thrown a spring at Mr. Host immediately prior to the accident was the subject of conflicting testimony.

Although the facts may be susceptible to opposing inferences, we must honor the findings of the Board when the inferences drawn by the Board are reasonable and rest on competent evidence. DeMichaeli & Associates v. Sanders (1976), 167 Ind.App. 669, 340 N.E.2d 796, 803; Lincoln v. Whirlpool Corp. (1972), 151 Ind. App. 190, 279 N.E.2d 596, 598-599; Woodlawn Cemetery Assn. v. Graham (1971), 149 Ind. App. 431, 273 N.E.2d 546, 550. Therefore, Pepka’s contention that the Board could not reasonably have concluded that Jones’ injury arose out of his employment asks us to find as a matter of law that Jones was engaged in “horseplay” which resulted in his injury and which thus did not arise as a consequence of his work duties or incidental tasks related thereto.

This court has consistently denied compensation to an injured employee who actively participated in horseplay.² Block v. Fruehauf Trailer Division, Fruehauf Corp. (1969), 146 Ind. App. 70, 252 N.E.2d 612, 615; see also Lincoln v. Whirlpool Corp., supra. Our Courts have recognized, however, that:

“It is a matter of common knowledge to employers of labor that men working together, or in near proximity to other workers, will indulge in moments of diversion from work to play pranks on each other; and where the duties of the employment require that an employe perform his work in a factory or mill with or near other workers, whether such workers are co-employes, or not, the risk from accident is thereby, to some extent at least, necessarily increased, and this increased risk is a risk of the employment. [Citations omitted].” Chicago I. & L. Ry. Co. v. Clendinnin, supra, 143 N.E. at 304.

See also Woodlawn Cemetary Assn. v. Graham, supra, 273 N.E.2d at 549; Western Union Telegraph Co. v. Owens, supra, 146 N.E. at 429; S. HOROVITZ, Modern Trends in Workmen’s Compensation, 21 Ind. L.J. 473, 510-511.

In light of these recognized human frailties, it has been held that injuries resulting from horseplay are caused by the employment so long as the injured person was an innocent victim.

In Re Loper, supra, 116 N.E. at 325; Woodlawn Cemetery Assn. v. Graham, supra, 273 N.E.2d at 549; May Chevrolet Co. v. Armstrong (1924), 82 Ind. App. 547, 146 N.E. 847. See generally, Small, Workmen’s Compensation Law in Indiana § 6.9 (1950).

In the case before us, Jones admitted participation in general horseplay and in spring-throwing as well. But whether he induced response in his fellow worker to throw a spring by throwing a spring at the fellow worker immediately prior to the injurious incident was the subject of conflicting testimony. We defer to the Board’s judgment in such matters. Therefore, we must view the evidence concerning Jones’ participation from a standpoint supportive of the Board’s award.

The Board’s finding which recited that Jones had “returned to work” after having earlier thrown a spring at Mr. Host, is clearly indicative of a conclusion that even if Jones had been an aggressor or participant in horseplay, he had withdrawn from that aggression or participation. Thus, the Board was entitled to conclude as they must have, that Jones, like the claimant in Woodlawn Cemetery Assn. v. Graham, supra, had become “an innocent victim”.

In this light then, the case before us is analogous to Woodlawn Cemetery Assn. v. Graham, supra, wherein a compensation award was affirmed as against employer’s claim that the injured employee was participating in the horseplay. And in this light, our case must be distinguished from Lincoln v. Whirlpool Corp., supra, and Block v. Fruehauf Trailer Division, Fruehauf Corp., supra, wherein Board denial of compensation was affirmed notwithstanding factual similarity with the Woodlawn case.

Therefore, notwithstanding that upon the same facts, this Court may have reached a conclusion different than that reached by the Board here, we are obligated to affirm.

The decision and award of the Board is affirmed.

Buchanan, J.concurs.

White, J. dissents with separate opinion.

1 . A subsequent amendment is of no import to this decision.

2 . The opposite result may be reached where, by reason of the employer’s knowledge of, and acquiescence in, such conduct, horseplay becomes a condition incident to the employment. In Re Loper (1917), 64 Ind. App. 571, 116 N.E. 324. See also Woodlawn Cemetery Assn. v. Graham, supra, 273 N.E.2d at 548; Delco-Remy Corp. v. Cotton (1933), 96 Ind. App. 493, 185 N.E. 341, 342; Western Union Telegraph Co. v. Owens (1925), 82 Ind. App. 474, 146 N.E. 427, 429; Chicago I. & L. Ry. Co. v. Clendennin (1924), 81 Ind. App. 323, 143 N.E. 303, 304; Kokomo Steel & Wire Co. v. Irick (1923), 80 Ind. App. 610, 141 N.E. 796.