Geary v. Anaconda Copper Min. Co.

• Decision Date: 23 December 1947
• Docket Number: 8756.
• Parties: GEARY v. ANACONDA COPPER MINING CO.
• Court: Montana Supreme Court

188 P.2d 185

120 Mont. 485

GEARY v. ANACONDA COPPER MINING CO.

No. 8756.

Supreme Court of Montana

December 23, 1947

Appeal from District Court, Third Judicial District, Deer Lodge County; William R. Taylor, Judge.

Proceeding under the Workmen's Compensation Act by Kenneth Geary claimant, opposed by the Anaconda Copper Mining Company employer. Judgment affirming an award of compensation by the Industrial Accident Board in favor of claimant, and the employer appeals.

Affirmed.

R. H Glover, John V. Dwyer, James T. Finlen, Jr., Sam Stephenson Jr. and Robert G. Dwyer, all of Butte, for appellant.

Horace J. Dwyer, of Anaconda, for respondent.

ANGSTMAN Justice.

Plaintiff was awarded compensation against defendant by the industrial accident board. Defendant appealed to the district court where the action of the board was upheld. This appeal followed.

The only question presented by the appeal is whether plaintiff's injury arose out of and in the course of his employment with defendant.

Plaintiff was injured on the 24th day of August 1944. He was then employed by defendant as a truck driver at the Washoe Smelter at Anaconda. During the lunch period he and other employees of defendant engaged in playing handball in a garage building owned by defendant and situated on its premises. Defendant's foreman was present on the day in question and on other occasions participated in the game. One of the fellow workers 'made a spring at the ball' and accidentally struck and broke plaintiff's glasses, causing a piece of glass to enter plaintiff's right eye, resulting in the loss of the eye. Only employees of defendant were permitted to play handball in the garage. The game had been played daily for about three months. While the employees were engaged in playing they were subject to call in cases of emergency during the lunch period. It was necessary for the garage employees to eat their lunch on the premises of defendant because 'if a call comes there they have to be there.' They could not go home to eat because of the distance from the smelter to their homes and because 'he has no right to go out of the Smelter during the noon hour.'

The case of Conklin v. Kansas City Public Service Co., 226 Mo.App. 309, 41 S.W.2d 608, 613, was relied upon by the board as sustaining its conclusion. The facts in that case were very similar to those here. The accident happened during the lunch period and while workmen were engaged in playing indoor baseball. The plaintiff was struck by a bat and injured while watching the game. The court in upholding an award to plaintiff pointed out that the controlling point is whether 'the injury arose from something which had become an incident to the employment.' In summarizing, the court in that case said: 'We must hold, however, that the greater weight of authority is to the effect that where an injury arises out of a settled practice or condition known to the employer, with which there is a causal relation between the injury and the employment, the injury is compensable.'

The court applied the same rule applicable to 'prank' or 'horse play' cases wherein it is generally held that injuries therefrom are compensable where the employer knew of such acts and permitted them to continue. The case of Petersen, 138 Me. 289, 25 A.2d 240, is typical of such cases, and see Horovitz on Workmen's Compensation, 110 et seq.

In the Conklin case the practice of playing games had been followed for four or five years whereas here it had only been 'going on every day for three months,' but we hold that this difference in time is of no consequence. The important fact is that the custom was known to the employer through its foreman who often participated in the game, and so far as the record shows no objection was made to the playing.

Another case analogous to this is Thomas v. Proctor & Gamble Mfg. Co., 104 Kan. 432, 179 P. 372, 375, 6 A.L.R. 1145, cited and relied on in the Conklin case, supra, and which reached the same conclusion. In that case claimant, a girl about 17 years of age, was accustomed to take her lunch with her and eat it on the premises of her employer between noon and 12:30 with other girls in her department. She was paid by the hour but not including the lunch period. The eating was usually done in 15 minutes. For the other 15 minutes the girls amused themselves by riding on a small truck used in their department. This was done with the knowledge and consent of the foreman. No representative of the employer objected to this practice. While thus engaged in riding the truck, claimant sustained an injury. The court pointed out that injuries received in play are not usually compensable but then went on to say: 'If the present case is be taken out of the general rule, it must be upon the ground that the habit of the girl employes to play with the trucks during the noon intermission, with the knowledge and express consent of the foreman, and without objection by anyone representing the defendant, made such practice one of the conditions under which the business was carried on, upon much the same principle as employers are held liable for the results of horseplay which had grown into a custom.' The court further said: 'The purpose of the plaintiff and her associates in remaining in the factory after their lunch had been eaten was presumably to be on hand when work commenced, in order that there might be no delay--a matter in which the employer had an obvious interest.' There are other cases where injuries arose from playing which take the opposite view. In Ryan v. State Industrial Commission, 128 Okl. 25, 261 P. 181, the court held that injuries sustained by an employee while playing 'catch' with a baseball n a vacant lot belonging to the employer were not compensable. In that case it does not appear that claimant was subject to call while playing catch nor does it appear that such playing had been indulged in previously. The case of Luteran v. Ford Motor Co., 313 Mich. 487, 21 N.W.2d 825, supports defendant's contention that the injuries under very similar facts are not compensable.

As the court in the Conklin case pointed out, there are many authorities which by fair analogy support defendant's contention that plaintiff's injury is not compensable. But many analogous cases support the conclusion of the board and the court.

By section 2964, Rev.Codes 1935, it is made the duty of the courts to construe our Workmen's Compensation Act liberally. While we cannot under the guise of liberal interpretation, disregard plain provisions of the statute (Shugg v. Anaconda Copper Mining Co., 100 Mont. 159, 46 P.2d 435; Davis v. Industrial Accident Board, 92 Mont. 503, 15 P.2d 919), yet when it is open to more than one interpretation, one favorable to the employee and the other against him, we must give it the construction most favorable to the injured workman in order to carry out the humane purposes of the Act. Dosen v. East Butte Copper Min. Co., 78 Mont. 579, 254 P. 880; Grief v. Industrial Accident Fund, 108 Mont. 519, 93 P.2d 961.

The board and the lower court were warranted in construing the statute as they did and in awarding compensation to plaintiff. No useful purpose would be subserved in an attempt to reconcile the conflicting authorities dealing with analogous facts. The general rule is that if the act resulting in injury be incidental to the employment, the fact that it was done during the lunch period does not prevent the award of compensation. 71 C.J. 739. And 'injuries sustained after the completion of the regular work by an employee subject to call may in a proper case be compensable as injuries arising out of and in the course of employment.' 71 C.J. 741.

In Employers' Liability Assur. Corp. v. Industrial Accident Commission, 37 Cal.App.2d 567, 99 P.2d 1089, 1092, claimant was employed as a cook in a private residence. She received her board and room at the residence and was injured on a day which was normally her 'day off,' but due to the absence of the maid, she was in fact subject to call. While awaiting a call from her employer she proceeded to shorten her dress. In doing so she stood on a stool in order to more clearly observe the hem of the dress. While thus engaged she slipped and fell, causing the injuries for which compensation was sought. The court in affirming an award of compensation said:

'If the particular act is reasonably contemplated by the employment, injuries received while performing it arise out of the employment, and are compensable. In determining whether a particular act is reasonably contemplated by the employment, the nature of the act, the nature of the employment, the custom and usage of a particular employment, the terms of the contract of employment, and perhaps other factors should be considered. Any reasonable doubt as to whether the act is contemplated by the employment, in view of this state's policy of liberal construction in favor of the employee, should be resolved in favor of the employee.

'Applying this test to the instant case, we believe the act was reasonably contemplated by the employment. A household servant is in a different category from most other employees. Normally she does not work, and this particular employee did not work, during definite hours. She is always on call. The employment requires her to live on the premises. She must be neat in dress and general appearance. It is necessarily contemplated by the employment that she must perform personal acts such as she was here performing while she is in her room on call.'

Where as here, the employee was subject to call during the lunch period--to all intents and purposes was forced to eat his meal on defendant's premises--and participated in the handball game on defendant's premises with ...