Hill v. Liberty Motor & Engineering Corp. ( 1946 )

The question presented in this case is an unmixed question of law, and there is no occasion to discuss the effect of the various presumptions. The question is whether the death was caused by an accident arising out of and in the course of employment. The facts are undisputed that Hill had reported for work and punched the time-clock, and was in a room furnished by the employer for the convenience of employees to change their clothes preparatory to work. If work were to start promptly at 8 A.M., it was necessary for employees to enter the premises and make necessary preparations beforehand, and in that preliminary period Hill was within the course of his employment. All of the authorities agree upon this point.

In Southern Can Co. v. Sachs, 149 Md. 562, 131 A. 760, this Court held that an employee was in the course of his employment where the injury was caused by falling on a stairway after the employee had left his post to visit a toilet on another floor. InBaltimore Car Foundry v. Ruzicka, 132 Md. 491, 496, 104 A. 167,4 A.L.R. 113, the injury occurred after working hours, when the employee, taking a short cut to leave the premises, attempted to pass between two cars standing on a railway siding. See alsoBoteler v. Gardiner-Buick Co., 164 Md. 478, 481, 165 A. 611; 1Honnold, Workmen's Compensation, p. 368; Broderick v. GeorgeColon Co., 255 N.Y. 609, 175 N.E. 334; Latter's case,238 Mass. 326, 130 N.E. 637. In Cudahy Packing Co. of Nebraska v.Parramore, 263 U.S. 418, 426, 68 L. Ed. 366, the Supreme Court said: "We attach no importance to the fact that the accident happened a few minutes before the time Parramore was to begin work, and was therefore, to that extent, outside the specified hours of employment. The employment contemplated his entry upon and departure from the premises as much as it contemplated his working there, and must include a reasonable interval of time for that purpose. See Gane v. Norton Hill Colliery Co. [1909], 2 K.B. 539, 544." See also Bohlen "A problem in the drafting ofWorkmen's Compensation Acts," 25 Harv. L.R. 401.

To be compensable, the risk need not be directly related to the type of work performed; it is sufficient if the duties of the employee require him to be in the place where the injury occurs, and the injury is attributable to the working environment. Thus, in Krell v. Maryland Drydock Co., 184 Md. 428, 41 A.2d 502,509, it was held that an unexplained disappearance from the enclosed premises was enough to support an inference that the employee fell overboard and was drowned. The fact that the place of employment was on the waterfront was sufficient to make the risk of drowning a risk of the employment. In Baltimore TowageCo. v. Shenton, 175 Md. 30, 199 A. 806, an unexplained fall from a pier was held to be compensable. In Townsend Grace Co. v.Ackerman, 158 Md. 34, 148 A. 122, an injury due to slipping upon a wet floor was held to be sustained in the course of employment. See also Caccamo's Case, 316 Mass. 358, 55 N.E.2d 614. In the case at bar, the immediate cause of the injury was slipping on the floor of a room provided by the employer for the use of employees. If there were nothing else in the case, it would seem to be perfectly clear that the injury would be compensable.

It is contended, however, that the injury did not arise out of the employment because it resulted from "horse-play" between the decedent and a fellow-employee. It is said that the employee "stepped aside" from his employment; the argument seems to be that since the employee contributed to his injury, the proximate cause was not the working environment but the employee's own fault. The short answer to this contention is found in the statute itself. Section 14, Art. 101, of the Code, 1939, provides compensation for "accidental personal injury sustained by the employee arising out of and in the course of his employment without regard to fault as a cause of such injury, except where the injury is occasioned by the wilful intention of the injured employee to bring about the injury or death of himself or of another, or where the injury results solely from the intoxication of the injured employee while on duty." Section 58 denies recovery for any injury "caused by self-inflected injury, the wilful misconduct, or where the injury or death resulted solely from the intoxication of the injured employee."

If the injury is compensable "without regard to fault as a cause of such injury," it would seem to be wholly immaterial that the employee contributed to the injury by originating or participating in the "horse-play" that led to the accident. Any other view would distort the plain meaning of the statute, and add a further exception to those created by the legislature. To that extent, it would defeat the avowed purpose of the law to place the burden of loss arising from accidents in industry upon the industry, without regard to fault. Solvuca v. Ryan,131 Md. 265, 101 A. 710.

The point raised is novel in this State. The authorities in other states are not in agreement, but there is a definite tendency to recognize the risk of injury from "horse-play" as an inherent risk of employment, without the necessity of a finding of fact that such a risk is peculiar to the particular employment, as required by the English authorities. See notes 15 Aust. L.J. 149; 77 Ir. L.T. 293. In the leading case ofLeebrunno v. Champlain Silk Mills, 229 N.Y. 470, 472,128 N.E. 711, Cardozo, J., expressed what is now the prevailing American view, as follows: "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 them. * * * 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." This same principle was recognized in Hartford Acc. Ind. Co. v.Cardillo, 72 App. D.C. 52, 112 F.2d 11, and Pacific EmployeesIns. Co. v. Industrial Acc. Comm., Cal. Sup., 1945, 158 P.2d 9,14 (overruling earlier cases.)

It is true that in those cases the employee was not a participant in, or at least not the aggressor in, the "horse-play." But the fact of participation or aggression would not seem to afford the basis for a valid distinction, for the distinction can only be predicated upon the theory that the injured workman's fault has intervened so as to break the chain of causation. That is a principle of tort law which has no just application to the statutory law of Workmen's Compensation. There is respectable authority for the proposition that such a distinction is untenable, although a majority of the courts hold to the contrary. Stark v. State Industrial Acc. Comm., 1922, 103 Or. 80,204 P. 151; Brown v. Vacuum Oil Co., 1930, 171 La. 707,132 So. 117; East Ohio Gas Co. v. Coe, 1932, 42 Ohio App. 334,182 N.E. 123; Geltman v. Reliable Linen Supply Co., 1942,128 N.J.L. 443, 25 A.2d 894; Maltais v. Equitable Life AssuranceSoc., 1944, 93 N.H. 237, 40 A.2d 837. Compare Hartford Acc. Ind. Co. v. Cardillo, supra, 112 F.2d at page 16 note 17. See also note 46 Harv. L.R. 166.

In the opinion of the Court in the case at bar stress is laid upon the fact that a rule of the employer forbade "horse-play," under penalty of discharge. This Court has held that a mere violation of rules is not enough to bar recovery on the ground of misconduct. Red Star Coaches, Inc., v. Chatham, 163 Md. 412,417, 163 A. 886, 888. "There must be something more than thoughtlessness, heedlessness, or inadvertence in it. There must be, at least, a wilful breach of the rule or order." In that case the employee died from the effects of monoxide gas while sleeping in an automobile standing in a closed garage with the motor running. Rules of the company forbade (a) running motors in the closed garage and (b) sleeping in cars. Nevertheless recovery was allowed. In the case at bar it seems clear that the decedent had no intention of injuring himself or anyone else, when he engaged in the friendly scuffle. Nor was there anything inherently dangerous in his action. The rule was quite obviously addressed to the danger of playing with tools and machinery, rather than the danger of slipping, which was the immediate cause of the injury. If Hill was guilty of misconduct it was not wilful, but inadvertent, under the undisputed facts of this case.

I think the injury is compensable and the judgment of the trial court should be reversed. I am authorized to say that Chief Judge Marbury concurs in this view.

On motion for Reargument, the following opinion was filed percuriam:

By motion for reargument, the appellant earnestly disputes the correctness of our decision on the basic question in this case and also raises a number of subsidiary questions, of law, fact or evidence, directed to particular features of the opinion.

We adhere to our decision that an employee who "steps aside from his employment" to initiate and participate in horse-play is not entitled to compensation for the consequences of his departure. Such injuries do not "arise out of his employment." The necessary causal connection between the employment and the injury is lacking. The mere fact that the work caused his association with the other man is not sufficient.

Subsidiary questions relate to such matters as the fact that the accident occurred before work was actually begun, the nature and extent of warnings to employees against horse-play and the question whether the deceased had changed or was about to change his clothes. We find it unnecessary to discuss these subsidiary questions for the reason that what was said about these details was not a basis of decision, but was incidental to the statement of facts. We do not regard these details as an essential part of the Court's reasoning or conclusion.

Motion denied.