Colson v. Steele , 73 Idaho 348 ( 1953 )

KEETON, Justice

(dissenting).

It seems to me all that is necessary to determine the issues presented in this matter is to read the pertinent parts of the Workmen’s Compensation Act and conclude that the Board was correct and its decision should be upheld.

While engaged in pistol practice, in nowise connected with the injured workman’s employment, and while performing no duty for the employer, due to misfortune or claimant’s own negligence, he received the injury complained of.

Claimant was employed as a member of a surveying crew. He was not employed to shoot jack rabbits or engage in pistol practice.

During the lunch period, and not at the immediate site of employment, claimant, while in nowise engaged in the work for which he was employed, or incidentally connected therewith, suffered the injury complained of.

Sec. 72-102, I.C. provides in part:

“The common law system governing the remedy of workmen against employers for injuries received in industrial and public work is inconsistent with modern industrial conditions.”

By the provisions of Sec. 72-201, I.C., a workman, to receive compensation, must be injured by an accident arising out of and in the course of his employment. The injury suffered by claimant had no connection with any employment in which he was engaged or employed, nor was the injury inflicted while claimant was under the direction of the master, nor was he doing anything at the time in furtherance of the master’s business. The injury was not one suffered which would be compensable at common law under any theory of liability of master and servant. If the legislature intended to cover accident and injury of the nature described here, the act certainly does not so say. It is not the province of this Court to amend the Workmen’s Compensation Act and read into it something plainly excluded by the legislature.

The opinion says that the truck or jeep which took the men to and from work was furnished by the employer. The .manner in which the injured workman travelled to and from work is in nowise associated qr connected with the injury suffered.

The custom of the workers to carry pistols and engage in target practice, and the shooting of jack rabbits, had no connection whatsoever with the work for which the claimant was employed.

The Workmen’s Compensation Act is not an insurance act. State ex rel. Gallet v. Clearwater Timber Co., 47 Idaho 295, 274 P. 802, 66 A.L.R. 1396. Nor has the legislature undertaken to provide compensation for those injured under the circumstances presented.

Knowledge, if any, of the foreman, and the custom of employees to carry pistols is inconsequential. It is not the duty of the master to exercise a guardianship over the employees while not on the job.

Negligence or knowledge of the employer and fault of the employee or contributory negligence are not issues in a workmen’s compensation case and cannot affect the result. Clumsiness, rashness or ineptitude are not controlling matters. The question is was the injury caused by an industrial accident.

One of the fundamentals of the theory of Workmen’s Compensation is to provide certain financial and medical benefits for victims of work-connected injuries. Target practice was not an insignificant antic in anywise connected with the employment. The claimant was deliberately and substantially outside of his employment at the time of the accident. In other words, the injured employee had for the time being abandoned his employment. At the time of the accident there were no duties to perform and none was being done. The phrase “arising out of employment” under the Workmen’s Compensation Act implies some causal connection between the accidental injury and the injured person’s employment.

In the case at bar claimant had voluntarily abandoned his work and engaged in an act wholly foreign to his duty and personal to himself.

In the case of Gaurin v. Bagley & Sewall Co., 298 N.Y. 510, 80 N.E.2d 660 an employee was killed when he interrupted his work of piling lumber to engage in a prank of pushing a dilapidated wagon over the river bank into the river. His clothing became entangled and he was thrown into the river and drowned. The court of appeals held “There is no evidence in this record that the death * * * arose out of and in the course of his employment” citing Frost v. H. H. Franklin Mfg. Co., 204 App.Div. 700, 198 N.Y.S. 521, affirmed 236 N.Y. 649, 142 N.E. 319. Cf. Industrial Com’r (Sequin) v. McCarthy, 295 N.Y. 443, 68 N.E.2d 434, 436.

In Givens v. Travelers Ins. Co., 71 Ga.App. 50, 30 S.E.2d 115, an employee was injured, the result of horseplay or fooling. The Supreme Court of Georgia said: “To be compensable it must appear that injury arose out, of, in the course of employment, and that the accident was within the purview of the act, and unless all three elements concur recovery is not authorized.” Numerous cases sustaining the view are cited in the opinion.

In Hughes v. Tapley, 206 Ark. 739, 177 S.W.2d 429, 431, an employee stepped aside from his employment to engage in a prank in order to frighten another employee. The court held “An injury to an employee does not ordinarily arise out of the employment where it results from sportive acts of co-employees, or horsep’ay or skylarking, in which the employee takes an active part”. (Emphasis supplied.)

A distinction is made in Phil Hollenbach Co. v. Hollenbach, 181 Ky. 262, 204 S.W. 152, 153, 13 A.L.R. 524, in cases where the injured workman himself is participating in acts deviating from his duties and where he is an innocent bystander. In the case before us, the claimant was actively participating in an undertaking in no wise connected with his employment or his duties.

An injury may be regarded as arising out of employment if it results from a risk or danger to which workmen are exposed by reason of being engaged in performance of their duties, not otherwise.

In Neal v. Boeing Airplane Co., 161 Kan. 322, 167 P.2d 643, 644, the Supreme Court of Kansas held:

“An employee’s injury, not resulting directly from performance of work for which he was employed, must at least have been suffered while performing some act normally and commonly incident to such work to be compensable.

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“Whether injuries to employee as result of employees’ sportive acts or horseplay, even by a participant therein, should be regarded as perils of employment, covered by Workmen’s Compensation Act, is question for legislature, not court. * * *

“An employee is not entitled to compensation under Workmen’s Compensation Act for injuries sustained as result of play or sportive act of his own with other employees. * * *

“Injuries to one employed as expediter of production when heavy roll of paper, which he was attempting to raise above his head as pastime, slipped and fell against his neck, did not ‘arise out of employment’ within Workmen’s Compensation Act.”

In Simon v. Standard Oil Company, 150 Neb. 799, 36 N.W.2d 102, the court held. that an employee who departed from his customary employment a distance of thirty feet, and from where his duties required him to he, and voluntarily placed his hand in close proximity to a fan which it was no part of his duties to operate, and sustained an injury, it was not in the course of the employment and was not compensable. Quoting from the case, 36 N.W.2d on page 105:

“Appellee had no duty or obligation concerning the operation, inspection, care or maintenance of the' fan. It was not operating until after the duties of the day of the accident were completed. The fan was a fixture and was not a machine for the conduct of the business of the appellant. It was properly installed and presented no dangers not incident to any such device. Appellee under the evidence in this case had no more occasion to go to the fan and test its operation than he would have had to go to the place of a circular saw or any dangerous machine that might be properly installed for the conduct of the business, for the purpose of testing whether the saw or machine was in motion. He had completed all his work of that day before the fan was put in motion. He was to the right and south of the wash room when he finished his duties for that day. That place was much more than 30 feet from and in a different room than the one in which the fan was located. Contrary to being engaged in the pursuit of any duty of his employment or anything even remotely incident thereto, the appellee, not passively, but voluntarily and intentionally, went to and attempted to test a fixture with which he had no concern, duty, or responsibility. He placed his hand in close proximity to the fan for the sole purpose of satisfying his curiosity as to the ‘ suction power of the fan — 'to see how much air it was pulling through it.’ It is certain that the accident had no connection with his employment or any matter reasonably necessary or incident to the work of his employment.”

Further cases denying compensation due to horseplay and curiosity see Sullivan’s Case, 128 Me. 353, 356, 147 A. 431; Peterman v. Industrial Commission, 228 Wis. 352, 280 N.W. 379; Maronofsky’s Case, 234 Mass. 343, 125 N.E. 565.

It has been held that trivial and insubstantial deviations from duty which do not measurably detract from the work are not sufficient departures from the scope of employment as to prevent an award of compensation in case of an accidental injury. Such is not the case before us.

It further seems to me that our Court has fully disposed of the issue presented here in the case of Stewart v. St. Joseph Lead Co., 49 Idaho 171, 286 P. 927, and Parker v. Twin Falls County, 62 Idaho 291, 111 P.2d 865.

In Stewart v. St. Joseph Lead Co., supra, this Court held that the splitting of wood to be used in preparing a meal for the claimant did not constitute a part of claimant’s employment. Hence the injured workman is not entitled to recover, and in Parker v. Twin Falls County, supra, a sheriff who had deviated from the usual mode of travel while in.attendance of his duties and was traveling on a personal mission of his own, was not engaged in any business actively pertaining to his employment.

It also appears to me that the majority opinion reverses and sets aside the following well reasoned Idaho authorities: State ex rel. Gallet v. Clearwater Timber Co., 47 Idaho 295, 274 P. 802, 66 A.L.R. 1396; Roberts v. Dredge Fund, 71 Idaho 380, 232 P.2d 975 holding that in order to recover compensation an injury must have been received in the course of workman’s employment and while he was doing some act reasonably incidental to his work. Eriksen v. Nez Perce County, 72 Idaho 1, 235 P.2d 736. In this case this Court held :

“Injuries received by employee while voluntarily engaged in some activity undertaken solely for his own benefit do not ordinarily arise out of and in course of employment, especially where activity is not an incident of employment, and has no connection or relation to employment."

See also, Walker v. Hyde, 43 Idaho 625, 253 P. 1104; In re Croxen, 69 Idaho 391, 207 P.2d 537.

Cases cited to sustain the majority opinion:

Destefano v. Alpha Lunch Co., 308 Mass. 38, 30 N.E.2d 827, presents an altogether different situation. In that case the employer furnished the meal that was eaten by the employee and which poisoned her. The action was a common law action for tort. I do not read the case as an authority for the matter presented here. The injury in that case was at least incidental to the employment. In re Charon’s case, 321 Mass. 694, 75 N.E.2d 511 is not a skylarking case at all. The employee was struck by lightning while on the job. I do not consider the case in point.

In re Loper, 64 Ind.App. 571, 116 N.E. 324, the injured employee was on the job and was not participating in the act which caused the injury.

In State ex rel. H. S. Johnson Sash & Door Co. v. District Court, 140 Minn. 75, 167 N.W. 283, L.R.A.1918E, 502, the injured employee was hurt while on the job by a sportive act in which he took no part.' I do not consider this case in point with the holding here.

The nearest case in point cited in the majority opinion is Geary v. Anaconda Copper Min. Company, 120 Mont. 485, 188 P.2d 185. This opinion was written by a divided court and I can find no other case in the books sustaining the theory. The dissenting opinion of Justice Gibson in that case points out forcibly that the injury complained of did not arise out of and in the course of employment, and further that an accident arises in the course of employment if it occurs while the employee is performing some duty of his employment or some act incidental thereto, not otherwise.

It seems to me the majority opinion in the Montana case, if considered authority for the majority holding here, was based more on the judges’ feeling than on a sustainable proposition of law.

It is my opinion the accident here complained of did not arise out of or in the course of employment, and the opinion establishes a precedent of such far reaching importance and implications that the rule announced should not be upheld. Hence, I dissent. I think the Board’s ruling was correct.

TAYLOR, J., concurs in this dissent.