Horn v. Broadway Garage

• Decision Date: 13 February 1940
• Docket Number: 29452.
• Citation: Horn v. Broadway Garage, 99 P.2d 150, 186 Okla. 535, 1940 OK 81 (Okla. 1940)
• Parties: HORN v. BROADWAY GARAGE et al.
• Court: Oklahoma Supreme Court

99 P.2d 150

186 Okla. 535, 1940 OK 81

HORN v. BROADWAY GARAGE et al.

No. 29452.

Supreme Court of Oklahoma

February 13, 1940

Syllabus by the Court.

It is the general rule that no compensation is recoverable under the Workmen's Compensation Law (section 13348 et seq O.S.1931, 85 Okl.St.Ann. § 1 et seq.) for injuries sustained through horseplay or fooling which was done independently of and disconnected from the performance of any duties of the employment since such injuries do not arise out of the employment within the meaning of the law.

Original proceeding in the Supreme Court by Haskell Horn, compensation claimant, to review an order of the State Industrial Commission denying an award, opposed by the Broadway Garage employer.

Order sustained.

Leslie L. Conner, Robert N. Chase, and P. James Demopolis, all of Oklahoma City, (J. R. Spielman, of Oklahoma City, of counsel), for petitioner.

Don Anderson, of Oklahoma City, for respondents.

PER CURIAM.

This is an original action brought by Haskell Horn, hereinafter referred to as petitioner, to review an order of the State Industrial Commission denying an award. The petitioner was in the sales department of the Broadway Garage at the time of his injury. He filed a claim January 9, 1939, in which he alleged that while in the employ of respondent, Broadway Garage, he sustained an accidental injury arising out of and in the course of his employment by reason of which he suffered the loss of an eye.

The State Industrial Commission by its order dated July 5, 1939 denied the award, therein finding that the evidence was insufficient to show that the petitioner sustained an accidental injury arising out of and in the course of the employment and petitioner seeks to obtain a review of this order.

The facts disclose that the petitioner was the head of, or shop foreman of the body, paint and repair shop; that his duties were to make estimates of all wrecks and repair jobs sent to him by the respondent. On the morning of the accident he had gone to the parts counter in another room or department and while standing there waiting he placed a broken paper clip on a rubber band, pulled the rubber back as if to shoot the clip and the clip came off and struck him in the eye. The accident resulted in a total loss of the eye.

We are of the opinion that the State Industrial Commission was justified in finding that the accidental injury did not arise out of and in the course of the employment.

It is the general rule that no compensation is recoverable under the Workmen's Compensation Acts for injuries sustained through horseplay or fooling which was done independently of and disconnected from the performance of any duties of the employment since such injury does not arise out of the employment within the meaning of the Acts. Fishering v. Pillsbury, 172 Cal. 690, 158 P. 215, 218; Twin Peaks Canning Co. v. State Industrial Commission, 57 Utah 589, 196 P. 853, 20 A.L.R. 872; Hollenbach Co. v. Hollenbach, 181 Ky. 262, 204 S.W. 152, 13 A.L.R. 524, and note 540. See, also, Texas Indemnity Ins. Co. v. Dunlap, Tex.Civ.App., 68 S.W.2d 664; Derhammer v. Detroit News, 229 Mich. 658, 202 N.W. 958; Industrial Commission of Ohio v. Bankes, 127 Ohio St. 517, 189 N.E. 437; In re Moore, 225 Mass. 258, 114 N.E. 204.

In Texas Indemnity Ins. Co. v. Dunlap, supra, it is said : "It is the law of this state that an employee is entitled to compensation for an injury received in horseplay where he does not willingly participate therein. But, where he voluntarily turns aside from his employment by inviting horseplay and then willingly engages therein, he cannot recover."

And in Industrial Commission v. Bankes, supra, in discussing an employee injured while scuffling the court said [127 Ohio St. 517, 189 N.E. 439]: "A different situation is presented where a claimant himself instigates and participates in such sport."

Our own decisions relating to...