Hill v. Liberty Motor & Eng'g Corp..

• Decision Date: 24 January 1946
• Docket Number: No. 42.,42.
• Citation: 45 A.2d 467
• Parties: HILL v. LIBERTY MOTOR & ENGINEERING CORPORATION et al.
• Court: Maryland Court of Appeals

45 A.2d 467

HILL

v.LIBERTY MOTOR & ENGINEERING CORPORATION et al.

No. 42.

Court of Appeals of Maryland.

Jan. 18, 1946.

Dissenting Opinion Jan. 24, 1946.

Appeal from Baltimore City Court; W. Conwell Smith, Chief Judge.

Proceeding under the Workmen's Compensation Act on the claim of Irene Hill against Liberty Motor & Engineering Corporation, employer, and Manufacturers Casualty Insurance Company, insurer, for the death of John Hill, employee. From a judgment affirming decision of State Industrial Accident Commission that injury and death of employee did not arise out of and in the course of his employment, claimant appeals.

Affirmed.

HENDERSON, J., and MARBURY, C. J., dissenting.

Maurice J. Pressman and Milton S. Goldbloom, both of Baltimore, for appellant.

William S. Wilson, Jr., Paul G. Ballard, and Wilson & Ballard, all of Baltimore, for appellees.

Submitted to MARBURY, C. J., and DELAPLAINE, COLLINS, GRASON, HENDERSON, and MARKELL, JJ.

COLLINS, Judge.

John Hill, an employee of Liberty Motor and Engineering Corporation, one of the appellees, on February 5, 1944, arrived at his place of employment at about 7:30 A.M. He punched the time clock and then went into a room furnished by the employer to the employees for changing their clothes preparatory to work and upon leaving work. Work did not start until 8:30 A.M.

Hill had something which appeared in the newspaper, Afro-American, which he wanted to show to Sylvester Lowe. Lowe told him that he did not want to see it. Hill kept on and one word brought on another and Hill called Lowe a vile name. Finally Hill, who weighed about 175 pounds, jumped up and grabbed Lowe, who weighed about 155 pounds, and threw him down on the floor on his back. Lowe and all the other witnesses say that both men were friendly and laughing at each other during the whole scuffle. After holding Lowe on the floor for a short time, Hill attempted to disengage himself and to get up on his feet. As he was rising his foot slipped and he fell against a radiator and struck his head. As a result his head was bleeding. He was promptly sent to the hospital in an ambulance and died the following day as a result of this injury. There is testimony which is not contradicted that Hill had been warned against horseplay and that all the employees, including Hill, had been given an instruction book at the time of their employment, which contained instructions from the employer not to engage in horse-play, which subjected the transgressor to discharge.

His wife, Irene Hill, claimant and appellant, on her own behalf and on behalf of her two minor children, filed a claim with the State Industrial Accident Commission against the employer and insurer. The Commission found after a hearing that the accident causing the injury and death of John Hill did not arise out of and in the course of his employment and that the deceased was guilty of horse-play. From an order disallowing the claim, an appeal was taken to the Baltimore City Court where the case was tried before a jury. By reason of the fact that the jury was unable to agree upon their verdict, they were discharged.

By agreement of the parties at the retrial of the case tried before a judge, other than the one who presided at the former trial, without a jury, a stipulation was entered into by counsel that no further testimony would be introduced at the second trial but the issues were to be decided upon the record and testimony presented at the first trial. The same exceptions were reserved to the rulings on the testimony. According to the record before this Court, no prayers were offered at the second trial. The trial judge at the rehearing without a jury affirmed the decision of the State Industrial Accident Commission in that the injury and death of John Hill did not arise out of and in the course of his employment.

Judgment was entered in favor of the employer and insurer for costs and, from that judgment, the appellant appeals here. The case comes to this Court under Rule 9, Trial by the Court. As none of the appellant's exceptions to the rulings on evidence were discussed in the brief or argument, they will be treated as abandoned.

The question for our decision is whether the trial judge was clearly erroneous in denying compensation to the wife of a deceased employee who died as a result of horse-play in which he engaged and which he initiated, after he had been notified by rules of the employer corporation and personally by his superior not to engage in horse-play. All of which occurred half an hour before work in a room furnished by the employer to change clothing, when the deceased was not changing his clothing and where he had never changed his clothes. To appellant's argument, that the friendly tussle had terminated and the horse-play had ended when Hill slipped while attempting to disengage himself and get on his feet, we see no force.

Appellants have referred us to many out of state cases where compensation was allowed, most of which are distinguishable from the case at bar. In Corpora v. Kansas City Public Service Co., 129 Kan. 690, 284 P. 818, the deceased was injured in a fall while putting on his overalls in the dressing room provided by the employer, from which injuries he died. In Cassell v. U. S. Fidelity & Guarantee Co., 115 Tex. 371, 283 S.W. 127, 46 A.L.R. 1137, the injured did not participate in the horse-play by which he was injured. In Chambers v. Union Oil Co., 199 N.C. 28, 153 S.E. 594, injury was caused by the act of a fellow employee, while delivering oil, in throwing a pistol into the truck. In East Ohio Gas Co. v. Coe, 42 Ohio App. 334, 182 N.E. 123, the injured was at his work, was actually performing his duties. In General Accident Co. v. Crowell, 5 Cir., 76 F.2d 341, the finding of a deputy commissioner that compensation is due was final when supported by evidence. The evidence was in ‘hopeless conflict.’ The Court found that there was sufficient evidence to support the finding of the commissioner. In Twin Reaks Canning Co., et al., v. Industrial Comm. of Utah, 57 Utah 589, 196 P. 853, at page 856, 20 A.L.R. 872, the Court there said: ‘In order to obtain compensation under our statute, it is only necessary to show that the accident occurred ‘in the course of the employment,’ and not that it arose ‘out of the employment.”

Appellees also cite many out of state cases. In Porter v. City of New Haven, 105 Conn. 394, 135 A. 293, 294, the Court in denying compensation where a fireman, while standing in the doorway of the engine house, was pushed in a spirit of fun by a substitute fireman not on duty at the time, and died two years later, held that, althouth the injury arose ‘in the course of the employment,’ it did not arise ‘out of an employment.’ In Hulley v. Moosbrugger, 88 N.J.Law, 161, 95 A. 1007, L.R.A.1916C, 1203, compensation was denied where the deceased, while working, in dodging a friendly blow of a fellow workman, fell on a concrete floor and was killed. In Washburn's Case, 123 Me. 402, 123 A. 180, compensation was denied for injuries sustained by an employee by reason of a harmful prank of a co-employee in throwing him down. In Payne v. Industrial Commission, 295 Ill. 388, 129 N.E.122, 13 A.L.R. 518, compensation was denied where boys, while using a machine operated by compressed air, and while playing with the air hose unknown to employer, shot air into the body of one of them as he turned to start his work.

In Lee's Case, 240 Mass. 473, 134 N.E. 268, 20 A.L.R. 870, compensation was denied where an employee, while in the course of his employment, as a result of horse-play was pushed out of a doorway, the Court finding that the injury thereby sustained did not arise out of the employment. In Tarpper v. Weston-Mott Co., 200 Mich. 275, 166 N.W. 857, 858, L.R.A.1918E, 507, one servant at work as riveter's helper was seized by another who held an air hose to his rectum while a third turned on the air, injuring him. The Court there found that the injury arose ‘in the course of’ but not ‘out of his employment.’ In Frost v. H. H. Franklin Mfg. Co., 204 App.Div. 700, 198 N.Y.S. 521, the Court held that where a claimant who had charge of employer's tool room, while handing out wire to a workman, playfully pulled down the peak of workman's cap, and when the workman lifted the cap from his eyes, a file, which he held in his hand, flew from its handle and put out claimant's eye, the injury was not an accident ‘arising out of employment.’

Stark v. State Industrial Accident Commission, 103 Or. 80, 204 P. 151, insofar as it supports the appellants' contentions, we are unable to reconcile with the weight of authority or to follow. The Court in that case found, in allowing compensation, that it was the custom of the employees, while engaged in their work to use the air hose and apparatus, supplied by the company for the performance of the necessary work, in scuffling, horse-play, and general recreation during working hours. In the case at bar the deceased had not started his work for that day. He had previously been handed rules of the company which made horseplay a cause for discharge and he had been specifically warned once before not to engage in horse-play.

In the case of Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 128 N.E. 711, 13 A.L.R. 522, claimant, while engaged in the performance of his duties in employer's factory, was struck by an apple which one of his fellow servants was throwing in sport at another. The claimant did not participate in the horse-play and had no knowledge of it until injured. In that case, in allowing compensation, Judge Cardozo said: ‘This case is not within the principle of Matter of De Filippis v. Falkenberg, 219, N.Y. 581, 114 N.E. 1064, and Matter of Stillwagon v. Callan Brothers, 224 N.Y. 714, 121 N.E. 893, where the claimant, joining in the horseplay, had stepped aside from the employment.’

Where an elevator operator left his post to scuffle with a fellow employee and...