Mascika v. Connecticut Tool Engineering Co.

• Decision Date: 10 July 1929
• Court: Connecticut Supreme Court
• Parties: MASCIKA v. CONNECTICUT TOOL ENGINEERING CO. ET AL.

147 A. 11

109 Conn. 473

MASCIKA v. CONNECTICUT TOOL ENGINEERING CO. ET AL.

Supreme Court of Errors of Connecticut.

July 10, 1929

Appeal from Superior Court, Fairfield County; Carl Foster, Judge.

Proceeding under the Workmen's Compensation Act by Charles Mascika claimant, for injuries, opposed by the Connecticut Tool Engineering Company and others. On appeal by the employer and others from a finding and award of the Compensation Commission for the Fifth District in favor of claimant. Judgment was rendered dismissing the appeal and affirming the award, and the employer and others appeal. No error.

Thomas R. Robinson and Daniel L. O'Neill, both of New Haven, for appellants.

John F. Chatfield, of Bridgeport, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

BANKS J.

The plaintiff, a boy sixteen years old, was employed on March 25 1928, by the Connecticut Engineering Company, one of the defendants, on a power press, starting his work on the press each day at 7:30 a. m. It was necessary to be at the factory prior to 7:30 in order to ring in, place his lunch, and hang up his coat, and be ready to begin work when the whistle blew. On this day the plaintiff walked to the factory, rang in the time clock about 7:20, and went out into the yard at the rear of the factory to await the blowing of the whistle. The yard was in the joint use of this defendant employer and an adjoining concern. About the middle of the yard was a wall of empty boxes and some machinery belonging to the defendant employer. When the plaintiff entered the yard, two boys, his fellow employees, were then tossing a stick across the yard. The plaintiff stopped behind the boxes in the middle, and was struck in the left eye by the stick thrown by one of the other boys. The general manager knew the boys were in the habit of playing in the yard while waiting for work to begin, and he had instructed the boys not to play around the machines in the yard. So far as appears, he gave them no further instruction or warning as to their playing in the yard. A necessary inference from these circumstances is that the boys were playing in the defendant's yard in the rear of its factory with its knowledge and acquiescence.

All specifications of appeal seeking corrections of the finding have been abandoned, with the exception of that incorporating among the respondent's claims of law in paragraph 7 the claim " that the injury did not arise out of employment but from horseplay or larking, not incident to the employment." The appellant makes no attempt to furnish the facts substantiating this claim. In its brief the appellant abandons its claim that the plaintiff's injury did not arise in the course of his employment, thus leaving the sole question for our decision--whether the injury arose out of the employment.

Pub. Acts 1927, c. 307, § 7, amending our Compensation Act (Gen. St. 1918, § § 5339-5414, as amended), contains the following definition: " The words ‘ arising out of and in the course of his employment,’ as used in said chapter 284, shall mean an accidental injury happening to an employee or an occupational disease of such employee originating while he shall have been engaged in the line of his duty in the business or affairs of the employer upon the employer's premises, or while so engaged elseWhere upon the employer's business or affairs by the direction, express or implied, of the employer. A personal injury shall not be deemed to arise out of the employment unless causally traceable to the employment other than through weakened resistance or lowered vitality." This statutory definition does not differ essentially, with respect to any questions here involved, from the construction of these terms previously adopted in numerous decisions of this court. Ohmen v. Adams Bros. et al. (Conn.) 146 A. 825.

Under the statute, injuries are not deemed to arise out of the employment " unless causally traceable" to it, which negative provision does not, as already noted, materially change the rule as stated by us in Marchiatello v. Lynch Realty Co., 94 Conn. 260, 263, 108 A. 799, as follows: " An injury arises out of an employment when it occurs in the course of the employment and is the result of a risk involved in the employment or incident to it, or to the conditions under which it is required to be performed. The injury is thus a natural or necessary consequence or incident of the employment or of the conditions under which it is carried on. Sometimes the employment will be found to directly cause the injury, but more often it arises out of the conditions incident to the employment. But in every case there must be apparent some causal connection between the injury and the employment, or the conditions under which it is required to be performed, before the injury can be found to arise out of the employment." Mann v. Glastonbury Knitting Co., 90 Conn. 116, 96 A. 368, L.R.A. 1916D, 86; Merlino v. Conn. Quarries Co., 93 Conn. 57, 59, 61, 104 A. 396; Corvi v. S. & R. Brick Co., 103 Conn. 449, 452, 453, 130 A. 674.

A causal connection between the injury and the employment is established if after the event the injury, though not foreseen or expected, had its origin in a risk connected with the employment, and flowed from that source as a natural consequence. McNichol's Case, 215 Mass. 497, 499, 102 N.E. 697, L.R.A. 1916A, 306. There is a substantial agreement among the authorities as to the test to be applied. The difficulty arises in its application. Injuries resulting from horseplay or skylarking by employees have been the subject-matter of many decisions under the compensation laws of numerous jurisdictions. The cases have been brought together and digested in an exhaustive note in 13 A.L.R. 540, supplemented by annotations to later cases in 20 A.L.R. 882, 36 A.L.R. 1469, 43 A.L.R. 492, and 46 A.L.R. 1150.

It seems clear upon principle and authority that, Where an employee indulges in horseplay with his fellow employees during the hours of his employment, with resulting injury to himself, his injuries cannot be deemed to have had any causal connection with his employment. In such case he has voluntarily departed from the duties of his employment and embarked upon an enterprise of his own, not contemplated by the terms of his employment. His injuries result from his own act and from a condition brought about by himself, and not incident to his employment. They have their origin in a risk which he has himself created, and which has no causal connection with his employment. Jacquemin v. Turner &amp Seymour Mfg. Co., 92 Conn. 382, 103 A. 115, L.R.A. 1918E, 496. Where, as here, the claimant, while in the course of his employment, is injured as a result of the fooling or skylarking of his fellow employees in which he is not a participant, a more difficult question arises, and one upon which there is a decided conflict of authority. Courts denying compensation in such cases have said that there was no causal connection...