Peet v. Garner Oil Co.

• Decision Date: 05 March 1973
• Docket Number: No. KCD,KCD
• Citation: 492 S.W.2d 103
• Parties: Raymond A. PEET, Appellant, v. GARNER OIL COMPANY, Respondent. 26159.
• Court: Missouri Court of Appeals

Page 103

492 S.W.2d 103

Raymond A. PEET, Appellant, v. GARNER OIL COMPANY, Respondent.

No. KCD 26159.

Missouri Court of Appeals, Kansas City District.

March 5, 1973.

Ima Goehring, Ida Turner, Goehring & Turner, Kansas City, for appellant.

Morris J. Nunn, Morrison, Hecker, Cozad, Morrison & Curtis, Kansas City, for respondent.

Before PRITCHARD, P.J., SWOFFORD and WASSERSTROM, JJ., and HALL, Special Judge.

SWOFFORD, Judge.

This is an appeal in an action for Workmen's Compensation. The appellant was an employee of the respondent engaged as an attendant in respondent's service station at Richmond, Missouri. He was 17 years of age at the time of his injury. His claim for compensation was denied by the Referee upon the finding that his injury was sustained as a result of his own actions as the aggressor in 'horseplay' with a fellow employee. Upon review before the Industrial Commission of Missouri, the referee was reversed and the employee awarded compensation upon the basis that the evidence did not show that the employee was the aggressor but, at most, he was a voluntary participant in the horseplay and that such horseplay was an incident to the employment. Employer-insurer appealed this award to the Circuit Court of Ray County, Missouri, which court reversed the Commission. Employee appealed to this court.

We review the Final Award of the Industrial Commission granting the appellant compensation and not the finding of the referee or the judgment of the court below. Wilhite v. Hurd, Mo.Sup., 411 S.W.2d 72, 76; Patane v. Stix, Baer & Fuller, Mo.App., 326 S.W.2d 402, 411; Jackson v. McDonnell Aircraft Corp., Mo.App., 426 S.W.2d 669, 675. Our review with reference to the facts, is limited to a determination of whether or not the findings of the Commission are supported by competent and substantial evidence and whether the Commission could reasonably have reached its result upon consideration of all the evidence in the light most favorable to the award. Bone v. Daniel Hamm Drayage Co., Mo.Sup., 449 S.W.2d 169, 171--172; Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647, 649; Shepard v. Robinson, Mo.Sup.,451 S.W.2d 329, 335; Govreau v. Farmington Transfer Company, Mo.App., 473 S.W.2d 750, 751. A corollary of these rules is that the award of the Industrial Commission must stand unless upon a review of the whole record error of law is shown. Miller v. Lever Brothers Company, Mo.App., 400 S.W.2d 625, 630; Merriman v. Ben Gutman Truck Service, Inc., Mo.Sup., 392 S.W.2d 292, 296--297.

The basic facts in this case, as found by the Commission, are without substantial dispute. Since such facts present a rather unique situation so far as the reported cases in Missouri are concerned, we will direct the thrust of this decision toward the legal effect of such facts. Stated differently, the real matter for our determination is whether or not the injury received during 'horseplay' of co-employees under the facts before us constitutes an accident 'arising out of and in the course of employment', as found by the Commission.

We hold that from the record before us and the better reasoned authorities, the claimant's injury is compensable and the award of the Commission was proper.

The facts surrounding this accident may be summarized as follows:

The employer operated an APCO Filling Station on Main Street in Richmond, Missouri. The claimant, a 17-year old boy, was an employee engaged as an attendant at said service station. He had worked there for several months, the last three of which were under the supervision of a man by the name of Wayne Eupper.

On June 22, 1968, the claimant was a junior in high school and he reported for duty at the service station at around noon on that day. Another 17-year old boy, David Shelton, was also working as an attendant.

At about 5:00 p.m., Wayne Eupper, the supervisor, left the station in charge of the claimant and Shelton and went to the Bethany Drag Strip and instructed the boys to close the station at 11:00 p.m.

The claimant testified that Eupper frequently left the station for the boys to close up, but that no other supervisor had done so.

At approximately 10:30 p.m., after the claimant had waited on a customer, Shelton threw a sponge at him in the station driveway which caused the claimant to fall over a water bucket. He was not injured in this incident. The claimant picked up another water bucket and chased Shelton toward the station. At the entrance thereof, Shelton, from within the station, closed the door thereof to bar the claimant, who testified, 'I tripped over a ledge', raised his arm and his left arm went through a glass panel in the door, resulting in the injuries complained of.

The claimant testified that the boys frequently engaged in 'horseplay' and 'fooling around' at the station when Eupper was not there. He further recounted an incident where he had complained to his father about a former youthful employee who engaged in horseplay, and that the father had talked to Mr. Eupper about it, and that then Eupper talked to the boys and told them not to engage in horseplay. Shelton has no recollection of this incident.

The claimant was then asked:

'Q. But he (Eupper) was aware that it went on?

A. Yes.

Q. And he still went away in the evenings and left two young boys there in charge?

A. Yes.

Q. Now were you the instigator of this incident, did you start it?

A. No.'

Claimant further testified that incident to the closing of the station at 11:00 p.m., he was required to put all moveable objects, including the water buckets, inside the station; lock up the cash inside the station (he had about $100.00 in company money on his person); read the meters on all of the gas pumps; and that these tasks usually took around 20 minutes.

At the time of the incident involved, he and Shelton were the only employees present, but the customer whose automobile he had finished servicing, one Mansell, and some other persons, were on the property but were not involved in the horseplay. The plaintiff testified that his purpose in chasing Shelton was to 'get even with him' for throwing the sponge, and further:

'Q. So, your entire purpose in carrying this bucket of water was either to protect yourself against him because he might throw something else at you and to get even with him for throwing the sponge at you already, isn't that right?

A. Yes.'

There was no evidence in the record that there was any animus between the boys or any real injurious assault accomplished or intended. The incident was strictly horseplay.

The customer, Mansell, corroborated the plaintiff's version of the incident in substantial detail.

The supervisor, Wayne Eupper, did not testify. The sole witness for the employer was David Shelton, who testified about an incident of 'somebody' putting a bug down his back and that he then put a bug down 'Peet's back', which incident was followed by the bucket and door occurrence. He had no knowledge of Mr. Eupper's caution against horseplay and denied that he or the 'other boys' engaged in horseplay around the station.

The Commission adopted the 'Sponge' as opposed to the 'Bug' version and found in favor of the employee. The Commission specifically found that Peet sustained an accident at the place and position of his employment upon the property of his employer and within his hours of employment, and that such accident therefore occurred during the 'course of his employment'.

In ruling the problem of whether or not the accident 'arose out of his employment' and after finding the facts as above summarized, the Commission found that the plaintiff was not the aggressor in the incident but a voluntary participant in the horseplay; that the supervisor, Wayne Eupper, had taken no effective measures to insure that his employees did not engage in horseplay during his absence; that he should have reasonably anticipated that they would engage in horseplay, and that his failure to take adequate measures to prevent the same had allowed the horseplay 'to become an incident of the employment.'

Upon the basis of these conclusions, the Commission awarded appropriate compensation, and we hold that this result was in accord with the law under the facts of this case.

Since the enactment of workmen's compensation statutes, the courts have been troubled in ruling upon the right to compensation for injuries received as a result of horseplay (sometimes called 'sportive assault', 'fooling', 'practical joking', 'larking' or 'sky-larking'). In the early decisional law, even an innocent non-participating victim was denied compensation, but this obviously unjust rule was quickly abandoned. In the decisional law on this subject, the defenses of 'aggressor', 'initiator', 'instigator', 'participant' and 'deviation' received various degrees of response or rejection, but in the gradual evolution of this law, the better reasoned decision now hold that if the injury is sustained in horseplay which has become an 'incident or risk of the employment', it is compensable even for the aggressor or voluntary participant. Larson, Workmen's Compensation, Vol. 1, Sec. 23; Horovitz, Assaults and Horseplay under Workmen's Compensation Laws, 41 Ill.L.Rev. 311; Crilly v. Ballou, 353 Mich. 303, 91 N.W.2d 493 (Talbot Smith,...