Horn v. Garage

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

1940 OK 81

99 P.2d 150

186 Okla. 535

HORN v. BROADWAY GARAGE et al.

Case Number: 29452

Supreme Court of Oklahoma

Decided: February 13, 1940

Syllabus

¶0 WORKMEN'S COMPENSATION--Injuries sustained through horseplay ordinarily not compensable.

It is the general rule that no compensation is recoverable under the Workmen's Compensation Law (section 13348, O. S. 1931 et seq., 85 Okla. 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 to review an order of the State Industrial Commission denying an award for compensation. Order sustained.

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

Don Anderson, of Oklahoma City, for respondents.

PER CURIAM.

¶1 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.

¶2 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.

¶3 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.

¶4 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.

¶5 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. 218; Twin Peaks Canning Co. v. State Industrial Commission (Utah) 196 P. 853; Hollingbach v. Hollingbach, 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 (Ohio) 189 N. E. 437; In re Moore, 225 Mass. 258, 114 N. E. 204.

¶6 In Texas Inv. 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 willfully engages therein, he cannot recover."

¶7 And in Industrial Commission v. Bankes, supra, in discussing an employee injured while scuffling, the court said:

"A different situation is presented where a claimant himself instigates and participates in such sports."

¶8 Our own decisions relating to the point are Sapulpa Refining Co. v. State Industrial Commission, 91 Okla. 53, 215 P. 933; Marland Refining Co. v. Colbaugh, 110 Okla. 238, 238 P. 831; Willis v. State Industrial Commission, 78 Okla. 216, 190 P. 92; Anderson & Kerr v. State Industrial Commission, 155 Okla. 137, 7 P.2d 902, and J. C. Hamilton...