Sizemore v. State Workmen's Compensation Com'r

• Decision Date: 14 June 1977
• Docket Number: No. 13810,13810
• Citation: 235 S.E.2d 473,160 W.Va. 407
• Parties: Elmer E. SIZEMORE v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Union Carbide Corporation.
• Court: West Virginia Supreme Court

Page 473

235 S.E.2d 473

160 W.Va. 407

Elmer E. SIZEMORE v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Union Carbide Corporation.

No. 13810.

Supreme Court of Appeals of West Virginia.

June 14, 1977.

Syllabus by the Court

An innocent victim of horseplay injured during the course of his employment is entitled to Workmen's Compensation benefits for such injury.

Hostler & Shinaberry, Sterl F. Shinaberry, Charles M. Kincaid, Charleston, for appellant.

Benjamin D. Tissue, Legal Dept., Union Carbide, South Charleston, for appellees.

MILLER, Justice:

Elmer Sizemore appeals an order of the Workmen's Compensation Appeal Board, which denied him compensation benefits on the ground that his injury was a result of an "assault" and therefore not compensable. The facts are not in dispute and we find the Appeal Board clearly erroneous in its finding of facts and application of the law. We, therefore, reverse.

Sizemore received a cervical injury as a result of being hit on his hard hat by a fellow employee. The injury occurred while both men were waiting, along with other employees, to leave the employer's premises at the conclusion of their work shift. As the group was standing about, someone apparently urged a Mr. Skaggs to tap Sizemore with a hammer handle that Skaggs was carrying. Sizemore was unaware of this prank until he received the blow on his hard hat.

There is no question from the record that the act was not motivated by any ill feeling, nor was there any intention on the part of Skaggs to injure Sizemore. As Skaggs testified, ". . . it's one of those goofs a man makes." Viewed from the standpoint of the victim, Sizemore, the occurrence was a friendly prank that resulted in a troublesome neck injury. For the Appeal Board to label the incident as an assault and deny benefits to Sizemore is at best a misconception of the role played by the participants.

The term "horseplay" has been used in two prior compensation cases before this Court, but in both instances we avoided deciding the case on the horseplay issue.

In Claytor v. State Compensation Commissioner, 144 W.Va. 103, 106 S.E.2d 920 (1959), a decedent's widow was denied compensation where her husband had been killed by a fellow employee as a result of an altercation arising during their employment. While the term "horseplay" was used several times during the course of the opinion, it is clear that the underlying rationale of the decision rested on the conclusion that it was a personal quarrel that led to the fatal assault, with each party being active participants in provoking the altercation.

Shapaka v. State Compensation Commissioner, 146 W.Va. 319, 119 S.E.2d 821 (1961), involved an employee who, while walking to a water cooler in a plant, attempted to spring on some wire mesh and fell, injuring himself. The Court declined to characterize the incident as horseplay, although it did discuss some general rules as to horseplay. It concluded, however, that the employee's action did not amount to willful misconduct so as to defeat his right to compensation under the Workmen's Compensation Law of this State. The willful misconduct bar is statutory in our Compensation Act. V.Va.Code, 23-4-2.

The Court's reluctance in Shapaka to label the incident as horseplay perhaps arose from the confusion that has become attached to this label, as it has often been used indiscriminately to characterize an occurrence without analyzing the role of the individual participants.

The more enlightened view is that an innocent victim of a horseplay incident is entitled to obtain compensation for his injuries. Industrial Commission v. Employers Casualty Co., 136 Colo. 396, 318 P.2d 216 (1957); Allsep v. Daniel Construction Co., 216 S.C. 268, 57 S.E.2d 427 (1950); Pacific Employers Insurance Co. v. Industrial Accident Commission, 26 Cal.2d 286, 158 P.2d 9 (1945); McKenzie v. Railway Express Agency, Inc., 205 Minn. 231, 285 N.W. 529 (1939); International Harvester Co. v. Industrial Commission, 354 Ill. 151, 187 N.E. 916 (1933); Mascika v. Connecticut Tool & Engineering Co., 109 Conn. 473, 147 A. 11 (1929).

Cardozo's opinion in Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 128 N.E. 711 (1920), has been generally credited as first establishing this principle. It is clear, however, that Cardozo relied heavily on the earlier opinion of Justice Kalisch in Hulley v. Moosbrugger, 87 N.J.L. 103, 93 A. 79 (1915), where the claimant, a plumber, had returned from outside work to his employer's shop at quitting time. A fellow worker, in a spirit of play, swung his arm at the claimant, either to knock off his hat or to strike him. The claimant, in dodging the blow, slipped and fell to the concrete floor, sustaining injuries which ultimately resulted in his death. The Court sustained the compensability of the injuries, stating that the company:

". . . employed young men and boys. It is but natural to expect them to deport themselves as young men and boys, replete with the activities of...