Cunning v. City of Hopkins, 37917
| Decision Date | 24 June 1960 |
| Docket Number | No. 37917,37917 |
| Citation | 103 N.W.2d 876,258 Minn. 306 |
| Parties | Bruce CUNNING, Relator, v. CITY OF HOPKINS, and Bituminous Casualty Company, Respondents. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. The language of M.S.A. § 176.021, subd. 1, excepting injury or death which is intentionally self-inflicted contemplates a deliberate intent on the part of the employee to cause injury or death to himself, not a failure on his part to realize the probable consequences to himself of his foolish acts.
2. The legislature has specifically provided that the employer shall be liable for compensation without regard to the question of negligence except when the injury or death of employee was intentionally self-inflicted or when the intoxication of the employee is the proximate cause of the injury, the burden of proof of those facts being on the employer; and has further provided that where the employer regularly furnished transportation to his employees to and from the place of employment such employees are subject to the Workmen's Compensation Act while being so transported, but that the act does not cover an injury caused by the act of a third person or fellow employee intended to injure the employee because of reasons personal to him, and not directed against him as an employee, or because of his employment. Under the record here the defense of 'horseplay' cannot be read into our Workmen's Compensation Act.
Thomas O. Kachelmacher and Gerald B. Forrette, Minneapolis, for relator.
Robb, Robb & Van Eps, Minneapolis, for respondents.
Writ of certiorari to review a decision of the Industrial Commission.
Bruce Cunning, employee-relator, Richard Walker, and David Bakken, three young college students, were employed by the Department of Recreation and Parks, city of Hopkins, to do park maintenance work. The department was under the supervision of a Mr. Harris. Relator had been employed by the said department of the city in the winter of 1954 as skating-rink superintendent and annually thereafter between June and September. Walker had worked for the city for the first time in 1957, and Bakken's employment with the city began on July 5, 1958. Relator's employment came to a sudden termination on July 16, 1958, because of the accident resulting in injury involved in the present proceeding.
On that morning the trio had engaged in a general cleanup of equipment and grounds. In the afternoon they picked up two empty barrels which they filled with kerosene to spray fence lines in order to kill weeds. This was to be their afternoon's job. The city furnished a half-ton pickup truck to carry them to the various grounds and parks. Bakken had been designated as the driver. The truck bed was enclosed with sideboards, 14 inches high, and a tailgate of lesser height. They placed the oil barrels in the bed of the truck and relator and Walker sat on opposite sides of the truck bed to steady the barrels. The record indicates that relator sat on the left and Walker on the right in the truck bed, near the cab, to make sure that the barrels would not tip. As they reached a park or playground they would park the truck and engage in spraying fences and weeds. Handing and steadying the barrels in the truck bed while the truck was moving constituted one of their duties.
They first took care of a softball field, then a park, and were on the way to another park when it became necessary to stop for a red light at the intersection of County Road No. 18 and Excelsior Boulevard. Just prior thereto both relator and Walker tossed a playground ball into the cab. Bakken threw one ball back into the truck bed. It bounced into the street and relator retrieved it. Although considerable mention was made of this occurrence at the hearing, the record indicates that this ended when they turned into St. Louis Street.
Both relator and Walker recall that there was a raincoat in the bed of the truck. Relator cannot recall what if anything was in spraying fences and weeds. Handling of continuing the trip after the green light came on.
Walker testified that after the green light came on and they proceeded on the boulevard and turned into St. Louis Street the going became rough because of the condition of the street and they had to stand up to guard the barrels and hang on to the sides of the cab. It was at this time that the relator called Walker's attention to the raincoat. Each took a hold of a corner of it and flipped it over the roof of the cab. It stayed that way off and on until the truck got into the first curve in St. Louis Street, a distance of a block or two. Walker says he let go when they went into the first curve. He had to hang on to the cab while Bakken drove into the curve as he was on the right-hand side. The road was rough, and Walker was looking straight ahead. Shortly after the truck had turned into the second curve in the street he saw someone motion to him and, turning around to look, discovered that relator had lost his balance and fallen out of the truck on the back of his head and shoulders. Walker then called to Bakken to stop the truck and both ran back to assist relator. Someone called the city of Hopkins for a rescue squad. A passing trucker also came to their assistance.
Walker testified that it did not occur to him to throw the raincoat over the cab initially but that both threw it; that this occurred while they were standing up because of the chuckholes and the bumpy condition of the street over which they were driving. He last saw the raincoat when they went into the first curve, that nothing had been said about what to do with the raincoat, his version being that it was too bumpy and noisy at the time; that when they went into the first curve or turn he had to hold on because he was on the right side and the turn was made to the left; the second turn was to the right. Walker testified that Bakken, in going into the second turn, took it rather suddenly and sharply; that it was a sharper curve; that the cab window was open on the side on which he was standing and he was forced to hang onto it. He says that he was pulled to the left when the corner was taken.
Bakken's testimony coincides with that of relator and Walker as to what occurred until such time as they made the stop for the red light. Bakken states they had traveled some 6 or 7 blocks on St. Louis Street after that stop before the accident occurred; that he was familiar with the street and the turns; that the raincoat was thrown over the top of the cab as he was driving across railroad tracks; that he did not know who did it. When he was asked what he did after this occurred, he said he proceeded with his driving and that his vision was obscured only at times, and then for a fraction of a second because the wind kept flapping the raincoat; that he proceeded this way until he entered the second turn in the road, having driven that way possibly 3 or 4 blocks. He states that his vision was not completely obscured when he came to the first turn, only partially; that the wind was flapping the raincoat up and down when he came to the second turn; that he had gotten over the centerline and turned sharply in order to get back to the right side of the road. Bakken was asked several times as to his driving speed. He answered on each occasion that it was 20 to 25 miles per hour and that he attempted to make the turns in the road at that speed. There is no testimony that he reduced the speed on account of chuckholes or bumpy street surfaces. He admits that in going into the turn immediately preceding the accident it was very bumpy; that he drove approximately 50 yards after relator had fallen out of the truck; and that Walker pounded on the back windshield to call his attention to what had occurred.
During the hearing Bakken testified as follows on redirect:
'Q. Mr. Bakken, I have a few further questions. First of all, to straighten out a particular point, you said the windshield was never completely covered--completely, I mean both portions of the glass in front of the truck? A. No, sir, it was never.
'Q. You stated that your speed was 20 to 25 miles an hour? A. Yes, sir.
'Q. And you also stated that the road was bumpy? A. Yes, sir.
'Q. And your observation also was that there was no traffic or relatively no traffic? A. Yes, sir.
'Q. And you took the turn at that speed, 20 to 25 miles per hour? A. Yes, sir.
'Q. Mr. Bakken, do you know for a fact who threw the coat or who blinded your vision with the coat? A. No, sir, not for a fact.
'Q. Do you know if the coat was being held there by anybody or whether the wind was holding it there? A. I believe the wind was holding it there.
The issues involved appear to be whether relator's injury is one 'arising out of' and 'in the course of' his employment so that he is entitled to compensation within the meaning of M.S.A. § 176.021, 1 and whether or not so-called 'horseplay' is a defense to an award of compensation under that section.
Section 176.011, subd. 16, provides:
"Personal injury' means injury arising out of and in the course of employment and includes personal injury caused by occupational disease; but does not cover an employe except while engaged in, on, or about the premises where his services require his presence as a part of such service at the time of the injury and during the hours of such service. Where the employer regularly furnished transportation to his employes to and from the place of employment such employes are subject to this chapter while being so transported, but shall not include an injury caused by the act of a third person or fellow employe intended to injure the employe because of reasons personal to him, and not directed against him as an employe, or...
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