Terry Motor Co. v. Mixon

• Decision Date: 22 March 1960
• Docket Number: No. 38751,38751
• Citation: 1960 OK 79,350 P.2d 953
• Parties: TERRY MOTOR COMPANY, and the State Insurance Fund, Petitioners, v. Della MIXON and State Industrial Commission, Respondents.
• Court: Oklahoma Supreme Court

Page 953

350 P.2d 953

1960 OK 79

TERRY MOTOR COMPANY, and the State Insurance Fund, Petitioners, v. Della MIXON and State Industrial Commission, Respondents.

No. 38751.

Supreme Court of Oklahoma.

March 22, 1960.

Syllabus by the Court

1. Disability or death resulting from injury sustained by workman while engaged in the duties of his employment, through the assault or prank of a fellow workman, where the injured workman is not the aggressor, initiator, or voluntary participant therein, is compensable as an accidental injury arising out of or in the scope of employment, within the meaning of the Workmen's Compensation Act.

2. In action by widow for death benefits under Workmen's Compensation Act, statements of claimant's deceased husband to other employees which constitute declarations or admissions against interest are admissible in evidence under recognized exception to the hearsay rule.

Original proceeding by Terry Motor Company, Employer, and its insurance carrier, State Insurance Fund, to obtain a review of an award of the State Industrial Court to Della Mixon, Claimant, for the death of her husband. Award vacated and cause remanded for further proceedings.

Mont R. Powell, Mary Elizabeth Cox, Oklahoma City, for petitioners.

Rex H. Holden, Oklahoma City, Mac Q. Williamson, Atty. Gen., for respondents.

JACKSON, Justice.

This is the second proceeding by petitioner to review an award of compensation to Della Mixon, claimant, for the death of her husband, Hunter Mixon. In the first proceeding, Terry Motor Co. v. Mixon, Okl., 336 P.2d 351, this court vacated the first award with direction to allow petitioner an opportunity to obtain additional evidence. It appears from the record herein that the witness whose testimony was sought by petitioner died before his testimony was obtained. A second award was entered on substantially the same record as the first award.

It is conceded that claimant's husband, Hunter Mixon, died as the result of injuries sustained when his head struck the concrete floor at his employer's place of business.

Petitioners contend on review that the evidence is insufficient to sustain the finding that claimant's husband sustained an accidental injury arising out of or in the scope of his employment, and that the trial judge erred in excluding certain evidence offered by petitioner.

The gist of petitioner's first contention is that the injury which resulted in the death of claimant's husband was sustained while he was engaged in a wrestling match outside the scope of his employment. We think this proposition is too broad, and that it is not supported by the case cited, Horn v. Broadway Garage, 186 Okl. 535, 99 P.2d 150. In that case, claimant lost the sight of an eye while playing with a broken paper clip and rubber band. See also, Eagle-Picher Mining & Smelting Co. v. Davison, 192 Okl. 13, 132 P.2d 937, where claimant, a truck helper, was injured while playing with a dynamite cap while waiting for return of the truck. The rule applied in those cases was that an injury sustained as the result of play indulged in by an employee for his own amusement does not arise out of the employment, and any disability resulting therefrom is not compensable.

We have held in several cases that where claimant was assaulted or injured by a fellow employee or third person, who was the aggressor, while claimant was engaged in the duties of his employment, the resulting disability was compensable. Thompson Bldg. Co. v. Midgette, Okl., 308 P.2d 645; Nelson Electric Mfg. Co. v. Cartwright, Okl., 277 P.2d 163; Cordell Milling Co. v. State Industrial Commission, 173 Okl. 195, 47 P.2d 168; Bishop's Restaurant Inc. v. McKim, 208 Okl. 631, 258 P.2d 170; Town of Granite v. Kidwell, Okl., 263 P.2d 184; Yellow Cab Co. v. Wills, 199 Okl. 272, 185 P.2d 689; Indian Territory Illuminating Oil Co. v. Jordan, 140 Okl. 238, 283 P. 240; Stasmos v. State Industrial Commission, 80 Okl. 221, 195 P. 762, 15 A.L.R. 576.

In J. C. Hamilton Co. v. Bickel, 174 Okl. 32, 49 P.2d 1065, we limited the rule to situations where the claimant did not actively participate in the horseplay or altercation.

In Brister v. Barton & Rich Drilling Co., Okl., 297 P.2d 405, 406, we stated:

'It is the rule in this State that claimant cannot recover if he was the aggressor.' (citing Indian Territory Illuminating Oil Co. v. Jordan, 140 Okl. 238, 283 P. 240.)

In Swift & Co. v. Forbus, 201 Okl. 516, 207 P.2d 251, we sustained an award for injuries resulting in a scuffle between claimant and a former employee, stating that there was a conflict of evidence as to whether claimant provoked or actively participated in the scuffling.

The Oklahoma cases appear to be in accord with the majority rule as stated in 99 C.J.S. Workmen's Compensation § 225, p. 753, as follows:

'The courts are sharply divided as to whether injuries resulting from horseplay, skylarking, and practical joking are compensable. Under what is apparently the majority view, an injury to an employee as a result of sportive acts of coemployees, horseplay, or skylarking is not compensable as not arising out of the employment where the injured employee was a participant, initiator, or instigator.'

Referring to the record in the instant case, the employer, Bob Terry, testified that he saw Mixon walk by with his hoe and push broom, and a short time later saw Rozell and Mixon on the floor, with Rozell on top of Mixon. When Terry asked Mixon if he was hurt, he replied, 'Well, it hurt my head a little.'

Otto Ary, former employee, stated in effect that he saw Rozell throw Mixon to the floor, and that Mixon hit the floot on his back.

The trial judge excluded testimony of employer's bookkeeper and two former fellow workmen as to statements made by Mixon immediately following the incident in question. The substance of the excluded testimony was that Mixon stated that he had been playing or wrestling with Rozell, and that he was thrown to, and hit his head on, the concrete floor.

Petitioners contend that such statements were admissible under a recognized exception to the hearsay rule, as declarations or admissions against interest.

In 31 C.J.S. Evidence § 218b, Declarations of Person Since Deceased, it is stated:

'The rule that declarations of a decedent against his interest are admissible has been applied where it is sought to introduce such declarations in a suit for damages for the death of declarant. Declarations of deceased against interest, made after the injury, have been admitted on behalf of defendant to show that the injury was not the cause of death, or that the injury was caused by contributory negligence on the part of deceased. * * * In an action for wrongful death which can be maintained only where decedent could have maintained an action for injuries, it has been held that there is such privity between decedent and those suing for damages for his death as...