Anderson Clayton & Co. v. Industrial Commission

• Decision Date: 20 December 1979
• Docket Number: CA-IC
• Citation: 125 Ariz. 39,607 P.2d 22
• Parties: ANDERSON CLAYTON & COMPANY, Petitioner Employer, Ranger Insurance Company c/o Arizona Adjustment Agency, Petitioner Carrier, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, Danny W. Graves, Respondent Employee. 12127.
• Court: Arizona Court of Appeals

Page 22

607 P.2d 22

125 Ariz. 39

ANDERSON CLAYTON & COMPANY, PetitionerEmployerRanger Insurance Company c/o Arizona Adjustment Agency, PetitionerCarrier, v.The INDUSTRIAL COMMISSION of Arizona, RespondentDanny W. Graves, RespondentEmployee.

1 CA-IC 2127.

Court of Appeals of Arizona, Division 1, Department C.

Dec. 20, 1979.

Rehearing Denied Feb. 5, 1980.

Review Denied Feb. 26, 1980.

Lewis & Roca by Merton E. Marks, R. Kent Klein, Barry Fish, Phoenix, for petitioner employer and petitioner carrier.

James L. Stevenson, Chief Counsel, The Industrial Commission of Arizona, Phoenix, for respondent.

Charles M. Wilmer, Phoenix, for respondent employee.

OPINION

JACOBSON, Judge.

The sole issue presented in this review of an award of the Industrial Commission is whether the injuries sustained by the claimant while engaged in "horseplay" are industrially compensable.

The facts are not in material dispute.

Petitioner employer, Anderson Clayton & Company, which operates a cotton gin, hired respondent employee, Danny W. Graves, as a janitor to work from 12:00 midnight to 8:00 A.M.It assigned Graves to work in a shed called the lint room.Prior to this assignment, Graves was not instructed regarding his duties, warned of dangerous conditions, or informed of prohibited practices.However, a co-employee, who controlled the operation of that area, but who was not officially respondent's foreman, explained Graves' duties to him and directly supervised his performance.These duties included cleaning filters on the machines, sweeping up overspills when they occurred, and watching for obstructions in the machines.

During this early morning shift, the workmen in the lint room had extended periods of slack time, that is, time when no active duties had to be performed.On at least three occasions prior to the day of the accident, when lulls occurred, the supervising co-employee diverted himself by riding a bicycle in the lint room, turning sharp corners, riding on one wheel, and running into piles of cotton seed.On the day before the accident, after the co-employee had resumed bicycling during a lull, Graves joined in the horseplay by riding the bicycle and by jumping some fifteen feet from the lint room rafters into a pile of cotton seed.

On the day of the accident, during another lull, the co-employee reappeared with the bicycle.Graves again joined in the bicycling, which spilled out of the lint room to a nearby pile of cotton seed.Both employees rode and jumped into this pile of seed.

Graves then announced his intention to jump some seventy feet from a conveyor into a pile of seed, located some one hundred yards from the lint room.He requested that the co-employee watch out for the foreman and call other employees to witness the jump.After the others arrived, he mounted the conveyor and prepared to jump.The supervising co-employee warned him that there was insufficient seed at that spot.Graves moved to another area, jumped, and sustained serious injuries.

The issue of the compensability of injuries sustained while at work involving so-called "horseplay" has not been specifically addressed in Arizona.It is basically the carrier's position that injuries sustained during such activity neither "arise out of" nor occur "in the course of" employment.Graves, conversely, contends that where the evidence sustains the factual determination that horseplay has become a regular part of the employment conduct, injuries sustained during such activity are compensable.

The legal starting point for any analysis of both parties' positions is the same, that is, do injuries occurring during horseplay activity "arise out of and in the course of employment?"A.R.S. § 23-1021(A).¹As was stated some time ago in Goodyear Aircraft Corp. v. Gilbert, 65 Ariz. 379, 181 P.2d 624(1947):

" 'The expressions "arising out of" and "in the course of" employment are not synonymous; but the words "arising out of" are construed to refer to the origin or cause of the injury and the words "in the course of" to refer to the time, place and circumstances under which it occurred.'71 C.J.(Workmen's Compensation Acts) 644."65 Ariz. at 383, 181 P.2d at 626.

In 1A A.Larson, Workmen's Compensation Law § 23.61, at 5-140(1979), the distinction is aptly put:

"Whenever the basic controversy stems from the nature of a course of conduct deliberately undertaken by the claimant, there is primarily a question of course of employment.Whenever the controversy stems from the nature of a source of injury to the claimant, there is primarily a question of 'arising out of the employment.' "(Emphasis in original.)

While the carrier contends that horseplay activity meets neither the test of "arising out of" nor "in the course of" employment requirements, relying primarily upon Rodriquez v. Industrial Commission, 20 Ariz.App. 148, 510 P.2d 1053(1973), we view this, as does Larson, as a "course of employment" question, rather than an "arising out of" question.In Rodriquez, the employee was injured when he fell in an unlighted, new construction area, separate and apart from his normal working area.While Rodriquez analyzes such conduct under both the "arising...