Socha v. Cudahy Packing Company

Citation181 N.W. 706,105 Neb. 691
Decision Date23 February 1921
Docket Number21810
CourtSupreme Court of Nebraska

APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Affirmed.


C. W Sears, for appellant.

Edward F. Leary and George H. Merten, contra.



APPEAL from judgment in favor of a dependent widow under the workmens' compensation act.

Albert Socha was in the employment of the Cudahy Packing Company. In the room in which he was employed were vats in which meat was cooked. When sufficiently cooled, the meat, in metal baskets or crates, was lifted from the vats by means of a compressed air lift attached to an overhead trolley by which the crates were rolled to and emptied upon and at one side of a table about six feet wide. Socha's work was to push the cooked meat across so that the trimmers, who stood upon the other side of the table, could reach it. This at times required a stooping position over the table. The evidence sustains the finding of the trial court that, while Socha was actually engaged in performing this service, and was not engaged in any playful or sportive acts, he sustained accidental injuries, from which he died, as a result of the playful application of a compressed air hose against his person by a fellow workman. The assault caused a rupture of the intestines resulting in septicemia.

It was shown that a printed placard warning against the danger of such use of compressed air was on a bulletin board at the gate to the plant, through which the men entered. A photograph shows that 17 placards on other subjects were upon this board. The two men concerned in the act were Polish, and barely understood the English language enough to testify. The placard is printed in English. There is no proof that their attention had ever been called to the placard, or to the danger of such use of compressed air, or that they had any knowledge of the consequences which might ensue from such an act.

It is admitted that the injury occurred in the course of the employment, and the question presented is whether it arose "out of" the employment. The argument of appellant is that the employer is not liable because the injury did not arise "out of the employment," and that, when the statute of another jurisdiction is adopted, the construction given there is also adopted, unless a contrary intention is expressed by the adopting legislature.

Reliance is placed mainly upon the holding in Pierce v. Boyer-Van Kuran Lumber Co., 99 Neb. 321, 156 N.W. 509. In that case it is not quite clear from the opinion how far the injured workman had participated in the skylarking. The decision is based upon Hulley v. Moosbrugger, 88 N.J.L. 161, 95 A. 1007; but the facts in that case are quite different from those before us; and, while the general principle that wilful or sportive acts of a fellow employee causing injury to a workman, not arising out of the employment, do not afford a basis for compensation is sound, yet the courts are not uniform in their decisions as to what acts "arise out of the employment." The opinion in the Hulley case quotes with approval from McNicol's Case, 215 Mass. 497, 102 N.E. 697, as follows: "It arises 'out of' the employment, when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises 'out of' the employment. * * * The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business, and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence."

Some courts go much farther than others in extending the scope of the term "arising out of" the employment, as shown by the following cases, in which compensation was allowed: Markell v. Green Felt Shoe Co., 221 N.Y. 493, 116 N.E. 1060. Claimant, while employed as foreman of the shoe company, received injuries resulting in the loss of an eye through the act of an employee of a machinery company who had been repairing machines in defendant's plant, and who, approaching claimant in a dark room, placed his arms about claimant's neck, and drew his head forward on to a lead pencil in his pocket in such a manner that the lead penetrated the eyeball.

In In re Heitz v. Ruppert, 218 N.Y. 148, 112 N.E. 750, horses, of which the claimant was the driver, were sprinkled with water by another employee, who intentionally sprinkled some water on claimant. Shortly afterwards claimant touched the other workman on the shoulder saying, "George don't do that again." The other man slapped claimant on the shoulder, and, as claimant turned around, his finger struck claimant's left eye, causing the injury. In Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 128 N.E. 711, an employee, while devoting his time to his work, was struck in the eye by an apple thrown by a fellow servant engaged in horse-play. Verschleiser v. Stern & Son, 229 N.Y. 192, 128 N.E. 126. In Pekin Cooperage Co. v. Industrial Board, 277 Ill. 53, 115 N.E. 128, a workman was injured by being thrown or falling upon a cement floor, while waiting in line for his pay, by the jostling of fellow workmen, in which he did not engage. In Pekin Cooperage Co. v. Industrial Commission, 285 Ill. 31, 120 N.E. 530, a worker was injured in a quarrel with another over interference with his work. In Marchiatello v. Lynch Realty Co., 94 Conn. 260, 108 A. 799, an office boy carelessly picked up and discharged an automatic pistol, the ball passing through a partition and striking a watchman while performing his duties. In re Loper, 64 Ind.App. 571, 116 N.E. 324, is an air hose case very similar to this one.

Other courts adhere to a stricter construction of the statute. Cases collected in note on page 47, L. R. A. 1916A; Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 P. 212, L.R.A. 1916F 1164; Federal Rubber Mfg. Co. v Havolic, 162 Wis. 341, 156 N.W. 143, L. R. A. 1916D, 968; Tarpper v. Weston-Mott Co., 200 Mich. 275, 166 N.W. 857; Payne v. Industrial Commission, 295 Ill. 388, 129 N.E. 122. The three latter cases...

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  • Socha v. Cudahy Packing Co.
    • United States
    • Supreme Court of Nebraska
    • February 23, 1921
    ...105 Neb. 691181 N.W. 706SOCHAv.CUDAHY PACKING CO.No. 21810.Supreme Court of Nebraska.Feb. 23, Syllabus by the Court. Where the nature of the employment is such as to expose a worker to a wrongful act by another worker, which may reasonably be said to have been induced by the peculiar condit......

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