Swift & Co. v. Forbus
| Decision Date | 17 May 1949 |
| Docket Number | 32842. |
| Citation | 207 P.2d 251,201 Okla. 516,1949 OK 111 |
| Parties | SWIFT & CO. et al. v. FORBUS et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 21, 1949.
Original proceeding by Swift & Company, employer, and Security Mutual Casualty Company, insurance carrier, to vacate an order of the State Industrial Commission awarding compensation to C W. Forbus, employee.
Award sustained.
Syllabus by the Court.
1. Where a workman is going about his duties and is injured by the prank of a stranger, not a fellow employee, in which prank the workman does not actively participate the resulting injury arises out of the employment within the meaning of the Workmen's Compensation Act.
2. An injury to a workman may be said to arise out of the employment, within the meaning of the Workmen's Compensation Law, when it is apparent, from a consideration of all of the circumstances, that a causal connection exists between the condition under which the work is required to be performed and the resulting injury.
Butler & Rinehart, Oklahoma City, for petitioners.
Kirksey M. Nix, McAlester, W. S. Horton, McAlester, Mac Q Williamson, Attorney General, for respondents.
In this case Swift & Company and Security Mutual Casualty Company its insurance carrier, seek to vacate an order of the State Industrial Commission awarding compensation to respondent C. W. Forbus.
The trial commissioner found that on January 23, 1946, respondent while in the employ of Swift & Company received an accidental personal injury arising out of and in the course of his employment consisting of an injury to his left leg; that as a result of said injury he sustained a 40 per cent permanent partial disability to the leg and awarded compensation.
The award was sustained on appeal to the Commission en banc.
Petitioners contend among other things, that the finding of the Commission that respondent's injury arose 'out of' his employment is not supported by the evidence. It is however conceded that respondent sustained an injury and resulting disability as claimed and found by the Commission and that the injury occurred in the 'course of' his employment but contend that it did not arise 'out of' his employment.
The evidence on behalf of respondent as testified to by him shows that he was, at the time he sustained the injury, an employee of Swift & Company. He was required to go to work at ten minutes before 8 o'clock in the morning. On the morning of January 23, 1946, he appeared at the plant of petitioner, Swift & Company, entered the dressing room provided by the company for the purpose of changing his clothes prior to going to work. While in the act of changing his clothes the foreman of the company directed that the employees get ready to go to work. He immediately left the dressing room and proceeded to work and as he entered the door to the work room one Simms, a prior employee of the company but who had been temporarily laid off and was not then in its employ, in a spirit of fun started jabbing him in the ribs, took hold of him and started to scuffle. He remonstrated and stated that he was ordered to go to work by the foreman and had no time to play and pushed Mr. Simms away from the door in order that he might enter the work room and proceed with his work. Simms however again caught hold of him and pulled him off the steps leading from the door to the work room which caused him to trip over a brick and fall on the concrete floor of the work room and injure his left leg.
The foreman of petitioner Swift & Company, in substance, testified, he was present on the morning of the injury; that respondent's injury was caused by a scuffle between respondent and Mr. Simms which scuffle was provoked by respondent and in which he voluntarily participated. Immediately prior to the injury the employees of the company had assembled in the dressing room and Mr. Simms was also there. He directed the employees to get ready to go to work. Respondent immediately left the dressing room to go to the work room and when he came toward the door Mr. Simms was standing there and respondent reached out and pushed him and started scuffling with him and that during the scuffle he fell to the floor and injured his leg.
Petitioners contend that the evidence conclusively established that respondent sustained his injury while engaged in a scuffle which he provoked and in which he actively participated and is wholly insufficient to establish that the injury arose out of the employment.
If the evidence had conclusively established such state of facts this contention would be correct. Willis v. State Industrial Commission, 78 Okl. 216, 190 P. 92. We do not however agree that the evidence conclusively established such state of facts. The evidence as to such issue is in conflict. Respondent testified that Simms provoked the scuffle; that he only participated therein to the extent of freeing himself therefrom in order that he might enter the work room and proceed with his work. The Commission was authorized to, as it evidently did, accept and believe the evidence of respondent on this issue in preference to the evidence of the foreman of the company and concluded therefrom that respondent neither provoked nor actively or voluntarily participated in the scuffle. There is sufficient competent evidence to sustain such conclusion and to support the finding that respondent's injury arose out of his employment.
In the case of Hamilton Co. v. Bickel, 174 Okl. 32, 49 P.2d 1065, we held:
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