In re Loper

Decision Date01 June 1917
Docket Number9,947
Citation116 N.E. 324,64 Ind.App. 571
CourtIndiana Appellate Court

From the Industrial Board of Indiana.

Certified Question of Law.

Proceedings under the Workmen's Compensation Act in the matter of one Loper. Question of law certified by the Industrial Board.

Question answered.

H. C Austill and Horace F. Harvey, for employer.



The Industrial Board pursuant to § 61 of the Workmen's Compensation Act (Acts 1915 p. 392), has certified to this court for determination a question of law based on a statement of the facts presented by a certain proceeding pending before it. The statement of facts as formulated by the board, and wherein the deceased employe is designated as A and the employer as B, is as follows:

"That on the 28th day of September, 1916, A was in the employment of B as a drill press operator, at an average weekly wage of $ 14.30; that on said date, while he was engaged in his work as a drill press operator, the assistant superintendent of the employer, under whom A was working, as an act of sport and horseplay upon the part of said assistant superintendent turned the air from the air compressor, maintained at said time in the employer's factory, upon the employe in the region of the rectum; that the turning of said air upon the employe at said time caused him to quickly jerk and straighten his body; that at said time the employe was suffering from an abscess in the region of the gall bladder; that the turning of said air upon him as aforesaid by the employer's assistant superintendent, causing him to suddenly jerk and strain himself, ruptured said abscess and resulted in acute general peritonitis, which caused the death of said employe on the 30th day of September, 1916; that the employer, by and through its assistant superintendent, had actual knowledge of the injury of the employe at the time that it occurred; that the air compressor in the employer's factory was used for the purpose of cleaning machinery, and long prior to the 28th day of September, 1916, the employes had established the custom of using the same to 'brush' their clothes, by which is meant that it was used to blow the dust and dirt off their clothing; that said employes had also formed the habit of using said compressor in acts of sport or horseplay by turning the air therefrom upon one another, which act was known among themselves as 'goosing;' that the deceased employe had frequently participated in such sport; that such conduct of the employes was carried on with the actual knowledge and acquiescence of the employer by and through its assistant superintendent; that said assistant superintendent in fact actually participated therein and no objection whatever was ever made by him or any other representative of the employer to such conduct on the part of the employes; that at the time said air was turned upon the deceased employe, he was not participating to any extent in the sport or horseplay of the employer's assistant superintendent but at said time was actually performing his work; that the deceased employe left surviving him his widow and two sons, aged respectively twelve and eight years, with whom he was living at the time of his injury and who were wholly dependent upon him."

The certified question of law is as follows: "Upon the foregoing facts, did the injury and death of the employe arise out of his employment within the meaning of the Indiana Workmen's Compensation Act?"

Only an injury or death "by accident arising out of and in the course of the employment" is included within the provisions of, and may be compensated for, under our act. § 2, supra. Practically all the American workmen's compensation statutes limit compensation to cases of injury or death "arising out of and in the course of the employment". The English Compensation Act contains a like limitation. Union Sanitary Mfg. Co. v. Davis (1917), 64 Ind.App. 227, 115 N.E. 676.

The books contain many cases involving injuries to workmen caused or occasioned by some sportive act of a fellow workman done by him independent of or disconnected from the performance of any duty of his employment, and characterized by the courts and law writers as "practical joking," "skylarking," or "horseplay". With practical uniformity the courts hold, both under the English act and also under the various American statutes, that an injury so suffered does not arise out of the employment within the meaning of the governing statute, and consequently that its compensatory provisions are not thereby invoked. See the following where the cases are grouped and discussed: Matter of DeFilippis v. Falkenberg (1915), 170 A.D. 153, 155 N.Y.S. 761; Federal Rubber Mfg. Co. v. Havolic (1916), 162 Wis. 341, 156 N.W. 143, L. R. A. 1916D 968; Hulley v. Moosbrugger (1915), 88 N.J.L. 161, 95 A. 1007, L.R.A. 1916C 1203, reversing same case as reported in 87 N.J.L. 103, 93 A. 79; Fishering v. Pillsbury (1916), 172 Cal. 690, 158 P. 215; Coronado Beach Co. v. Pillsbury (1916), 172 Cal. 682, 158 P. 212, L. R. A. 1916F 1164; Pierce v. Boyer-Van Kuran, etc., Co. (1916), 99 Neb. 321, 156 N.W. 509, L. R. A. 1916D 970.

In denying compensation for an injury so caused, the courts, as a rule, assign as a reason that the sportive act that results in the injury constitutes no part of the duties of the frolicsome workman, and consequently no part of the enterprise conducted by the employer, and hence that the injury does not arise out of the employment. We proceed to determine whether such reasons for denying compensation are applicable to the facts here. Of the statement of facts submitted to us, and as we interpret it, there are certain elements which we regard as distinguishing and also controlling, as follows: The employes while engaged in performing the duties of their employment in and about the employer's plant, rather than when off duty, had formed the habit of using the air compressor in acts of sport by turning the current of air therefrom upon one another, with the knowledge and acquiescence of the employer; the employer made no objection to such use of the compressor; on the particular occasion the injured employe was not participating in such sport, but was engaged in discharging the duties of his employment.

In the Pierce case, supra, a fellow employe assaulted Pierce in a playful manner. It is not clear that the latter was otherwise than passive in the transaction. Following the assault such fellow employe, in a spirit of fun, threw a small stick at Pierce, wounding his eye. There was evidence that defendant's employes had been accustomed to join in what they called horseplay, and that defendant did not interfere or take steps to protect the employes therefrom. Pierce was not in the habit of joining his fellows in such playful performances. The opinion discloses only inferentially that the employer had knowledge of such custom. In denying compensation the court quotes from the Hulley case as reported in 95 A. 1007, as follows: "The employer was not charged with the duty to see to it that none of his employes assaulted any other one of them, either wilfully or sportively. * * * An employer is not liable, under the Workmen's Compensation Act (P. L. 1911, p. 134), to make compensation for injury to an employe, which was the result of horseplay or skylarking, so called, whether the injured or deceased party instigated the occurrence or took no part in it; for while an accident, happening in such circumstances, may arise in the course of it, it cannot be said to arise out of the employment."

It may be true, as stated, that under ordinary circumstances, an employer is not chargeable with the duty of seeing that any one of his employes does not assault another; yet he does have the power of removing from his services objectionable employes, and also the power to regulate their manner of performing their work, and their habits characterizing such performance. If it should be granted that it is not the duty of an employer to prohibit acts in which the workmen are accustomed to engage while prosecuting their labors, perilous to other employes, he at least has the power to do so. Moreover, there may be cases of assault by one workman upon another which involve a breach of duty upon the part of the employer as where he knowingly retains in his employ a vicious workman. The existence of a duty on the part of the employer and its breach resulting in injury to a workman, however, are not the tests by which the right to an award under compensation acts is determined. A duty and its breach is negligence, but negligence on the part of the employer is not...

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  • In re Loper
    • United States
    • Indiana Appellate Court
    • June 1, 1917

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