Southern Cotton Oil Division v. Childress

• Decision Date: 06 April 1964
• Docket Number: No. 5-3162,5-3162
• Citation: 377 S.W.2d 167,237 Ark. 909
• Parties: SOUTHERN COTTON OIL DIVISION, etc., Appellant, v. Minnie Lee CHILDRESS et al., Appellees.
• Court: Arkansas Supreme Court

Page 167

377 S.W.2d 167

237 Ark. 909

SOUTHERN COTTON OIL DIVISION, etc., Appellant, v. Minnie Lee CHILDRESS et al., Appellees.

No. 5-3162.

Supreme Court of Arkansas.

April 6, 1964.

Hout, Thaxton & Hout, Newport, Rose, Meek, House, Barron, Nash & Williamson, Little Rock, for appellant.

Pickens, Pickens & Boyce, Newport, Smith, Williams, Friday & Bowen, Robert V. Light, Little Rock, for appellees.

McFADDIN, Justice.

This is a workmen's compensation case, and necessitates a review of the holdings on the matter of 'horse-play' ¹ or 'sky-larking.'

Mrs. Minnie Lee Childress seeks recovery for herself and children because of the death of her husband, George Childress, while in the employ of the appellant, Southern Cotton Oil. ² The facts are without substantial dispute. For many years the appellant, Southern Cotton Oil has had a cottonseed oil mill at Newport. George Childress worked for the appellant for about seven years. On August 15, 1957, he reported for work about 7:00 A.M. and was assigned the job of using a compressed air hose for blowing out the vent pipes in the soybean storage shed.

Alfred Ballentine, a fellow-employee, was working that day in another room of the plant. About 2:00 o'clock in the afternoon Ballentine needed an 18"' pipe wrench and went to the soybean shed to see about getting the wrench. George Childress was then using a high-pressure air hose with a nozzle on the end of it, blowing out the vents in the storage room. As Ballentine went by Childress, one or the other made a friendly and challenging gesture. After Ballentine investigaged the matter of the pipe wrench, he started out of the bean shed and passed by Childress; and they engaged in friendly scuffling and in the process of the scuffle Ballentine got hold of the nozzle of the air hose that was blowing in a continuous stream and in some way the end of the air hose was forced against the anus of the deceased and air forced into his body and as a result George Childress died. A portion of this scuffle was witnessed by Mr. Jerry Jeffrey, manager of the Company, who immediately went to the men and, finding that Childress had been injured, he made arrangements for Childress to be taken to the hospital. The company paid the medical and hospital bills that resulted from the injury. Childress died on August 18, 1957, of internal injuries, the result of the air being forced into his body.

Alfred Ballentine testified that he and George Childress had been friends for seven years; that they had scuffled there at the Southern Cotton Oil plant five or six times before that day; that there was no anger or ill feelings between them; and that it was just friendly playing. Ballentine said that when he passed by Childress enroute to see about the pipe wrench, Childress was seated in the door at work and Childress reached for him; that as Ballentine came back, Childress jumped up and went running around Ballentine with the air hose, as though to wrap it around him; that they started scuffling and Ballentine tried to get loose and Childress was trying to tie the house around him; that they were not mad, they were just playing, and that they scuffled for a few minutes and some way in the process the air was forced into Childress' body through his anus.

Ballentine also testified that during the entire time he worked at the plant no one gave him any instructions or warning regarding the use of the air hose; that he did not know that an air hose could injure a man seriously or kill him; that he did not know that placing the air hose near a man's rectum might kill him. Ballentine said some other employees had used the air hose to clean the lint off their clothes; and that he had never played with an air hose before. A number of other witnesses testified, but all the evidence was about to the same general effect as that heretofore mentioned. The fact remains that Childress and Ballentine, while on the job, engaged in a friendly scuffle, and as a result Childress was killed.

The Workmen's Compensation Commission refused to allow compensation. ³ On appeal the Circuit Court reversed the Commission and held that Mrs. Childress and her children were entitled to recover compensation. The Circuit Court was of the view that our case of Johnson v. Safreed, 224 Ark. 397, 273 S.W.2d 545, changed the holding in Hughes v. Tapley, relied on by the Commission. From the Circuit Court judgment, Southern Cotton Oil prosecutes this appeal; and we are thus presented with the problem of whether there may be a recovery in a case like this one wherein a worker is injured in what is called 'horse-play' or 'sky-larking.'

I. The Holdings Generally. Before considering our own cases, it is proper that we consider as background information the trend generally in 'horse-play' cases. The earlier workmen's compensation cases usually held that there could be no recovery in 'horse-play' cases; ⁴ but Justice Cardozo's opinion in Leonbruno v. Champlain, 229 N.Y. 470, 128 N.E. 711, 13 A.L.R. 522 (1920), ⁵ is generally credited with having ushered in the modern ruling. Justice Cardozo there said:

'Whatever men and boys will do, when gathered together in such surroundings, at all events if it is something reasonably to be expected, was one of the perils of his service. * * * The claimant was injured, not merely while he was in a factory, but because he was in a factory, in touch with associations and conditions inseparable from factory life. The risk of such associations and conditions were risks of the employment.'

The courts then began to allow recovery to the innocent victim of the horseplay, but a majority continued to refuse recovery to the instigator of the horseplay if he were injured. Larson4 states this rule:

'Injury to a non-participating victim of horseplay is compensable, but to the instigator is usually not. A few states permit recovery even by active participants in horseplay if such activity has become customary. A suggested rationalization of the rule on participants in horseplay is to treat the question, when an instigator is involved, as a primarily course of employment rather than 'arising-out-of-employment' problem; thus, minor acts of horseplay would not automatically constitute departures from employment but might here, as in other fields, be found insubstantial. So, whether initiation of horseplay is a deviation from course of employment would depend on (1) the extent and seriousness of the deviation, (2) the completeness of the deviation (i. e., whether it was commingled with the performance of duty or involved an abandonment of duty), (3) the extent to which the practice of horseplay had become an accepted part of the employment, and (4) the extent to which the nature of the employment may be expected to include some such horseplay.'

The trend of the recent cases has been to eliminate the distinction between instigator and victim, and to examine the real facts as to: (a) whether there was a substantial deviation from employment; (b) the extent of the horseplay; (c) whether it should have been known to the employer so as to be stopped; and (d) other factors which might tend to allow recovery to the injured party. Larson4 has several pages devoted to these various matters. In 99 C.J.S. Workmen's Compensation § 225, p. 753, after stating the general rule, the text states:

'An injury to an employee as a result of horseplay, skylarking, or practical joking is ordinarily compensable where the injured employee did not participate in the fun or where such activities were customary in the particular employment.'

The text then adds this:

'Other authorities go further and hold that the test of coverage by the compensation statute is whether or not the horseplay, skylarking, and practical joking that caused the injury may reasonably be regarded as an incident of the particular employment, and where it may be so regarded, an injured employee is entitled to compensation even though he was a participant.'

Schneider ⁶ says:

'Since a majority of the jurisdictions now award compensation to innocent or non-participating employees, and to employees whose participation is but momentary and not 'aggressive', a rule, under the broader conception of the law, may be said to be that injuries sustained by an employee while in the course of his employment as a result of another's horseplay, are compensable as arising out of and in the course of his employment.

'The question of whether the aggressor should be entitled to compensation for injuries resulting from his own aggressiveness is one which must be left for future determination. The general trend, however, appears to be in that direction.'

Hon. Samuel B. Horovitz, writing in 3 NACCA Law Journal 57, in 1949, said:

'Clearly, fooling at work is incidental to it, and a hazard of men working together. The more recent and better rule is to allow an award for an injury resulting from horseplay, even to aggressors, where the injury is a by-product of associating men in close contacts, thus realistically recognizing the 'strains and fatigue from human and mechanical impacts.''

To list all the cases and Law Review articles on this matter would be a work of supererogation. ⁷ To sum up: the recent cases are in accord with the words of the Supreme Court of Michigan in Crilly v. Ballou (1958), 353 Mich. 303, 91 N.W.2d 493, in which the Michigan Court reviewed its own earlier case denying recovery, overruled it, and said:

'We need not undertake to define the outer limits of compensability. We rule on the case before us. * * * So much for the present and the future. As for the past, we specifically overrule the Tarpper [v. Weston-Mott Co.] case, supra [200 Mich. 275, 103 A. 115, L.R.A.1918E, 496], and subsequent cases of like character, and hold that injuries received in assaults, either sportive or malicious, are not, by reason of such fact alone, beyond the realm of compensability. If arising out of the employment and received in...