Workers Compensation Case Summary

Professor Goering Fall 2006
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Closed Research Office Memorandum

Research Materials

Statutes:

Kan. Stat. Ann. § 44-501 (2006).

Kan. Stat. Ann. § 44-508 (2006).

Cases:

Stuart v. Kansas City, 102 Kan. 307, 171 Pac. 913 (1918).

State ex. rel. H.S. Johnson Sash & Door Co. v. District Court, Hennepin County, 140 Minn. 75,
167 N.W. 283 (1918).

White v. Kansas City Stockyards Co., 104 Kan. 90, 177 P. 522 (1919).

Thomas v. Proctor & Gamble Mfg. Co., 104 Kan. 432, 179 P. 372 (1919).

Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 128 N.E. 711 (1920).

Kansas City Fibre Box Co. v. Connell, 5 F.2d 398 (8th Cir. 1925).

Borden Mills, Inc. v. McGaha, 161 Tenn. 376, 32 S.W.2d 1039 (1930).

Neal v. Boeing Airplane Co., 161 Kan. 322, 167 P.2d 643 (1946).

Carter v. Alpha Kappa Lambda Fraternity, Inc., 197 Kan. 374, 417 P.2d 137 (1966).

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Kan. Stat. Ann. 44-501 (2006):

44-501. Employer obligation; burden of proof; defenses; exceptions; legislative
intent; benefits reduced for certain retirement benefits.

(a) If in any employment to which the workers compensation act applies, personal injury by
accident arising out of and in the course of employment is caused to an employee, the employer
shall be liable to pay compensation to the employee in accordance with the provisions of the
workers compensation act. In proceedings under the workers compensation act, the burden of
proof shall be on the claimant to establish the claimant's right to an award of compensation and
to prove the various conditions on which the claimant's right depends. In determining whether
the claimant has satisfied this burden of proof, the trier of fact shall consider the whole record.

(b) Except as provided in the workers compensation act, no employer, or other employee of such
employer, shall be liable for any injury for which compensation is recoverable under the workers
compensation act nor shall an employer be liable to any third party for any injury or death of an
employee which was caused under circumstances creating a legal liability against a third party
and for which workers compensation is payable by such employer.

. . . .

(g) It is the intent of the legislature that the workers compensation act shall be liberally construed
for the purpose of bringing employers and employees within the provisions of the act to provide
the protections of the workers compensation act to both. The provisions of the workers
compensation act shall be applied impartially to both employers and employees in cases arising
thereunder.

. . . .

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Kan. Stat. Ann. 44-508 (2006):

44-508. Definitions.

As used in the workers compensation act:

(a) 'Employer' includes: (1) Any person or body of persons, corporate or unincorporate, and the
legal representative of a deceased employer or the receiver or trustee of a person, corporation,
association or partnership; . . .

(b) 'Workman' or 'employee' or 'worker' means any person who has entered into the employment
of or works under any contract of service or apprenticeship with an employer. . . . .

....

(d) 'Accident' means an undesigned, sudden and unexpected event or events, usually of an
afflictive or unfortunate nature and often, but not necessarily, accompanied by a manifestation of
force. The elements of an accident, as stated herein, are not to be construed in a strict and literal
sense, but in a manner designed to effectuate the purpose of the workers compensation act that
the employer bear the expense of accidental injury to a worker caused by the employment. . . . .

....

(f) The words 'arising out of and in the course of employment' as used in the workers
compensation act shall not be construed to include injuries to the employee occurring while the
employee is on the way to assume the duties of employment or after leaving such duties, the
proximate cause of which injury is not the employer's negligence. An employee shall not be
construed as being on the way to assume the duties of employment or having left such duties at a
time when the worker is on the premises of the employer or on the only available route to or
from work which is a route involving a special risk or hazard and which is a route not used by
the public except in dealings with the employer. . . . .

The words, 'arising out of and in the course of employment' as used in the workers compensation
act shall not be construed to include injuries to employees while engaged in recreational or social
events under circumstances where the employee was under no duty to attend and where the
injury did not result from the performance of tasks related to the employee's normal job duties or
as specifically instructed to be performed by the employer.

(g) 'Burden of proof' means the burden of a party to persuade the trier of facts by a
preponderance of the credible evidence that such party's position on an issue is more probably
true than not true on the basis of the whole record.

....

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Supreme Court of Kansas.

STUART v. KANSAS CITY.

102 Kan. 307, 171 Pac. 913*

No. 21247.

Jan. 12, 1918.

On Rehearing, April 12, 1918.

*913 Appeal from District Court, Wyandotte County.

Action by Clayton L. Stuart against the City of Kansas City, Kan. Judgment awarding
compensation under Workmen's Compensation Act, and defendant appeals. Reversed, and new
trial directed upon particular questions.

Lee Judy, of Kansas City, Kan., Hogsett & Boyle, of Kansas City, Mo., and T. F. Railsback,
Thomas M. Van Cleave, and H. J. Smith, all of Kansas City, Kan., for appellant.

Emerson & Smith, of Kansas City, Kan., for appellee.

MARSHALL, J.

The plaintiff recovered judgment under the Workmen's Compensation Act for $1,690, and the
defendant appeals.

The plaintiff was employed by the defendant as a laborer in the defendant's water and light
department, and, at the time of the injury which is the basis of this action, was engaged in mixing
and carrying mortar to other workmen, who were repairing boilers in the defendant's plant. The
other workmen were working about 20 feet above the ground. After mixing the mortar, the
plaintiff carried it in a bucket to a hook on the end of a rope and attached the bucket thereto, and
William Deeds, one of the workmen, elevated the mortar and delivered it to other workmen who
were laying brick. Just before he was injured, the plaintiff had taken a bucket of mortar and
attached it to the rope, and had then stepped back about 25 feet and looked up toward William
Deeds to see when the bucket was returned, and to ascertain if he wanted anything. While thus
standing, a piece of green mortar made of lime, sand, and cement fell or was thrown into the
plaintiff's eye, which was thereby seriously injured.

On the trial, the plaintiff, in substance, testified that he supposed, but did not know that Deeds
threw the mortar. The plaintiff testified, in part, as follows:

"Q. Did you see Mr. Deeds just before you were hit? A. Yes, sir. Q. What was he doing? A.
Standing upon this platform. Q. Was he making motions of any kind? A. No. Q. Had he
made any? A. Well, just before this for [fell] in my eye, he got down on his hands and knees

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and looked under the platform and made circular swing with his right arm as though reaching
for something; might have tossed something out of his hand, I couldn't say. Q. Did you see
any mortar leave his hand? A. No, sir. Q. Did you see any in it? A. I didn't see any in it. Q.
You thought at the time he did throw it, did you? A. Yes, I thought at the time he threw it."

There was abundant evidence, largely in the nature of admissions made by the plaintiff, to show
that Deeds had playfully thrown the mortar. There was evidence to show that Deeds was playful,
sportive, and inclined to play pranks or jokes on his fellow workmen, and that this was known by
his immediate superiors at the plant.

The jury answered special questions as follows:

"Question 1: Did the injury to the plaintiff arise out of and in the course of his employment?
Answer: Yes.

. . . . *914

1. The defendant's argument is principally based on the theory that Deeds, in a spirit of sport,
threw the mortar at the plaintiff, and that the mortar hit the plaintiff in the eye. The defendant
contends that it is not liable for an injury inflicted on one of its workmen by another workman
when the latter injures the former by some prank, sport, or play, or even by an assault. The
matter now complained of was presented to the trial court in a number of forms. (1) At the close
of the plaintiff's evidence, the defendant asked that the jury be instructed to return a verdict in
favor of the defendant. The request was refused. (2) At the close of all the evidence, the
defendant again asked that the jury be instructed to return a verdict in favor of the defendant.
The request was again refused. (3) The defendant requested an instruction, substantially, that if
the plaintiff's injury was caused by a fellow employe throwing mortar at the plaintiff, either
maliciously or in sport, the plaintiff could not recover for the resulting injury. No such
instruction was given. The court instructed the jury as follows:

"You are further instructed that before the plaintiff is entitled to recover he must show by a
preponderance of the evidence that the accident complained of is one which arose out of and
in the course of his employment, and in this connection you are instructed that, if you find
from the evidence that one Deeds, a fellow workman of the plaintiff, engaged in the same
line of employment, and while so engaged either intentionally or accidentally struck the
plaintiff in the eye with a piece of mortar, injuring him, you must find that the injury arose
out of and in the course of the employment of the plaintiff, and if such injury resulted in
incapacity to perform labor for a period beyond two weeks from the date of such injury he
would be entitled to compensation."

This instruction did not correctly state the law.

The first section of the Employers' Liability Act, section 5896 of the General Statutes of 1915,
reads, in part, as follows:

"If in any employment to which this act applies, personal injury by accident arising out of
and in the course of employment is caused to a workman, his employer shall, subject as

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hereinafter mentioned, be liable to pay compensation to the workman in accordance with this
act."

A clear and concise statement of the law governing compensation for injuries to employes
caused by play is found in Workmen's Compensation Acts, a corpus juris treatise by Donald J.
Kiser, p. 79, and is as follows:

"An employe is not entitled to compensation for an injury which was the result of sportive
acts of coemployes, or horseplay or skylarking, whether it is instigated by the employe, or
whether the employe takes no part in it. If an employe is assaulted by a fellow workman,
whether in anger or in play, an injury so sustained does not arise 'out of the employment,' and
the employe is not entitled to compensation therefor, unless in a case where the employer
knows that the habits of the guilty servant are such that it is unsafe for him to work with
other employes."

The rule there declared is supported by Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 151
Pac. 398; McNicol's Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306; Scott v. Payne
Bros., 85 N. J. Law, 446, 89 Atl. 927; In re Loper (Ind. App.) 116 N. E. 324; Clayton v.
Hardwick Colliery Co., 85 L. J. K. C. 292.

Under these authorities the rule is that where a workman, known by his master to be in the habit
of indulging in dangerous play with his fellow workmen, is retained in the master's employ, the
danger of injury from such play becomes an incident of the employment of the other workmen,
and injury to any of the other workmen, while performing his regular work, caused by such play,
comes within the provisions of the Workmen's Compensation Act.

*915 . . . .

Because of the error in the instructions, the judgment is reversed, and a new trial is granted. All
the Justices concurring.

On Rehearing.

In an opinion rendered on January 12, 1918, the judgment of the district court was reversed, and
a new trial was granted.

The plaintiff has filed an application for a rehearing, and, in that application, asks that, if a
rehearing is denied and the judgment stands reversed, the new trial be directed on the proposition
on which the judgment was reversed. The judgment was reversed on the ground that an
instruction was erroneous because it did not submit to the jury the question of the defendant's
knowledge of the dangerously playful habits of William Deeds, a fellow workman with whom
the plaintiff was working at the time of his injury.

The judgment of reversal is adhered to, and a new trial is granted on the following questions:
Was the plaintiff injured by William Deeds, accidentally or in sport? If the plaintiff was injured
by William Deeds in sport, was William Deeds in the habit of indulging in dangerous play with
his fellow workmen? If William Deeds was in the habit of indulging in dangerous play with his

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fellow workmen, did the defendant have notice or knowledge of that habit?

After these facts have been ascertained, judgment will be rendered by the trial court in
accordance with the facts so found and in obedience to the law declared in the former opinion.
All the Justices concurring.

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Supreme Court of Minnesota.

STATE ex rel. H. S. JOHNSON SASH & DOOR CO.
v.
DISTRICT COURT, HENNEPIN COUNTY, et al.

140 Minn. 75, 167 N.W. 283

No. 20882.

April 12, 1918.

Certiorari to District Court, Hennepin County; Wm. C. Leary, Judge.

*76 **284 John A. Nordin, of Minneapolis, for relator.

Larrabee & Olson, of Minneapolis, for respondents.

DIBELL, C.

Certiorari to the district court of Hennepin to review its judgment awarding compensation under
the Workmen's Compensation Act to William Filas, an employe of the relator H. S. Johnson
Company.

The relator company operates a woodworking factory. Filas was employed by it. The court
finds that some of the employes of the relator, referred to in the evidence as boys or kids, were
accustomed during working hours to throw missiles such as blocks of wood and sash pins at one
another and atothers including Filas; that the relator knew of the custom or should have known of
it in the exercise of diligence; that on May 31, 1917, a fellow employe of Filas threw a sash pin
at him in sport and without intending to injure him; that it hit him in the eye and destroyed his
vision; that Filas was at the time engaged in his work; and that he did not then and had not at any
time engaged with his fellow employe in sport of this kind. These findings are sustained. Filas
claims that he at no time engaged with his fellow employes in throwing missiles and that he
complained to *77 the company of the acts of the particular employe. No specific findings are
made upon these points. The court finds that the accident arose out of Filas' employment.
Whether it did is the only question.

The rule is well enough settled that where workmen step aside from their employment and
engage in horseplay or practical joking, or so engage while continuing their work, and accidental
injury results, and in general where one in sport or mischief does some act resulting in injury to a
fellow worker, the injury is not one arising out of the employment within the meaning of
compensation acts. 1 Honnold, Work. Comp. § 121; Bradbury, Work. Comp. 649; Dosker,
Comp. Law, § 106; Boyd, Work. Comp. § 476; note, 12 N. C. C. A. 789; note, L. R. A. 1916A,
23, 47-93; Hulley v. Moosbrugger, 88 N. J. Law, 161, 95 Atl. 1007, L. R. A. 1916C, 1203;
Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 Pac. 212, L. R. A. 1916F, 1164; Fishering v.
Pillsbury, 172 Cal. 690, 158 Pac. 215; Federal, etc., Co. v. Havolic, 162 Wis. 341, 156 N. W.
143, L. R. A. 1916D, 968; Pierce v. Boyer-Van Kuran, etc., Co., 99 Neb. 321, 156 N. W. 509, L.

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R. A. 1916D, 970; De Filippis v. Falkenberg, 170 App. Div. 153, 155 N. Y. Supp. 761; Armitage
v. L. & Y. Ry. Co., [1902] 2 K. B. 178; Fitzgerald v. Clark, [1908] 2 K. B. 796. Here we
conceive the situation to be different. Filas was exposed by his employment to the risk of injury
from the throwing of sash pins in sport and mischief. He did not himself engage in the sport.
His employer did not stop it. The risk continued. The accident was the natural result of the
missile throwing proclivities of some of Filas' fellow workers and was a risk of the work as it
was conducted. In McNicol's Case, 215 Mass. 497, 102 N. W. 697, L. R. A. 1616A, 306,
injuries resulting from blows administered in frenzy by an intoxicated fellow worker known by
the employer to be in the habit of becoming intoxicated and in that condition to be dangerous
were held to arise out of the employment. Liability was rested 'upon the causal connection
between the injury of the deceased and the conditions under which the defendant required him to
work.' In Clayton v. Hardwick Colliery Co., 9 B. W. C. C. 136, reversing 7 B. W. C. C. 643, a
finding that a boy who was working with other boys in a colliery picking stones from coal and
was injured by a stone thrown by another boy was so subjected *78 by his employment to a
special risk that the injury arose out of his employment was sustained. In Challis v. London, etc.,
Co., [1905] 2 K. B. 154, the injuries to an engineer who was driving his engine under a bridge
and was hit by a stone thrown by a boy from the bridge were held to arise out of his employment.
And see Pekin Cooperage Co. v. Industrial Board, 277 Ill. 53, 115 N. E. 128; In re Loper (Inc.
App.) 116 N. E. 324; Knopp v. American, etc., Co., 186 Ill. App. 605; State v. District Court,
134 Minn. 16, 158 N. W. 713, L. R. A. 1916F, 957.

The ultimate finding that the injury to Filas arose out of his employment is sustained by the
evidence.

Judgment affirmed.

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Supreme Court of Kansas

WHITE v. KANSAS CITY STOCKYARDS CO.

No. 21832.

104 Kan. 90, 177 P. 522*

Jan. 11, 1919.


W. L. Wood, of Kansas City, for appellant.
J. K. Cubbison and W. G. Holt, both of Kansas City, Mo., for appellee.

DAWSON, J.

The plaintiff was given judgment under the Workmen's Compensation Act (Laws 1911, c. 218,
as amended by Laws 1913, c. 216) against the defendant, who was his employer. Plaintiff's
injuries were occasioned through a mischievous prank perpetrated upon him by some of his
fellow workmen. They fastened an electrically charged wire to an iron door on the defendant's
premises. Plaintiff had to pass through this door when his day's work was done and when he had
washed and dressed to go home. On touching the gate, plaintiff was severely shocked and more
or less permanently injured.

It is needless to discuss the question whether plaintiff was injured in the course of his
employment. Under not dissimilar circumstances, it has been so held in this state. Sedlock v.
Mining Co., 98 Kan. 680, 159 Pac. 9; Monson v. Battelle, 102 Kan. 208, 170 Pac. 801, Syl. par.
3; Id., 103 Kan. 470, 173 Pac. 927.

It has also been held that, while ordinarily a master is not liable under the compensation act for
injuries to a workman which have been caused through the mischievous pranks and sportive
jokes of his coemployes, yet the rule is otherwise where the master has knowingly permitted
such mischievous pranks to continue. In such cases the danger of injury becomes an incident of
the employment. Stuart v. Kansas City, 102 Kan. 307, 310, 171 Pac. 913.

The serious contention in this case is that the master did not know that such pranks were being
perpetrated on its premises. It would not be unjust to say that the master should have known and
was chargeable with notice, for this same mischievous and dangerous prank had been practiced
frequently on other workmen off and on for several *523 weeks or months before plaintiff was
injured. Here, however, it was shown that plaintiff's foreman, the man who directed his work,
was one of the perpetrators of the mischief which injured the plaintiff. This foreman knew this
particular prank had become a custom on the employer's premises. Defendant contends that this
person was not a foreman, but the great weight of the evidence is to the contrary. It is true that
this foreman had no general authority, but he was the person whom plaintiff had to obey while in
defendant's employment. To that extent he was a foreman, and his knowledge of the electrical
mantrap on the door was notice to his principal.

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No error appears in the record, and the judgment is affirmed.

JOHNSTON, C. J., and MASON, WEST, and MARSHALL, JJ., concurring.

BURCH and PORTER, JJ., concur on the ground the master was chargeable with notice on
account of the notoriety and long-continued existence of the practice.

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THOMAS v. PROCTOR & GAMBLE MFG. CO.

No. 21995.

104 Kan. 432, 179 P. 372*

March 8, 1919.

Rehearing denied April 17, 1919.


*373 J. K. Cubbison, of Kansas City, Mo., for for appellant.

Stanley & Stanley, of Kansas City, Kan., for appellee.

MASON, J.

Daisy Thomas, an employe of the Proctor & Gamble Manufacturing Company, about 17 years
of age, recovered a judgment against her employer under the Workmen's Compensation Law
(Gen. St. 1915, § 5896 et seq.), and the defendant appeals.

The principal question involved is whether the plaintiff's injury was one arising out of and in the
course of her employment. A suggestion is made that it did not result from accident, but the
occurrence relied upon seems clearly to fall within the definition of that term. The evidence in
behalf of the plaintiff tended to show these facts: She had been working for the defendant a little
over five months. Her hours were from 7 to 12 and from 12:30 to 5:30, except on Saturdays,
when she did not work in the afternoon. She was paid by the hour. Her custom was to take her
lunch with her and eat during the interval between noon and 12:30, which was allowed for that
purpose, in the room where she worked, with the other girls in her department, seven or eight in
number. The eating of lunch generally occupied about 15 minutes. In the remaining 15 minutes
the girls, including the plaintiff, were in the habit of amusing themselves by riding on a small
truck used in their department to pull boxes on. The girls had asked the foreman of this
department if they could do this, and he had told them they could, but to be careful, and that he
did not want any men up there. He knew of the practice and did not object to it; nor did any
other representative of the company. During the noon half hour the girls were at liberty to go
where they pleased. They hardly ever went down to the restaurants, however, because of the
shortness of the time. If they did so they had to run in order to be back by 12:30. On the day of
the accident one girl was drawing the truck, while the plaintiff, with two others, were kneeling
on it. They had ridden from the powder room, where they worked, into the ware room, and were
near the door between the two on the return trip, when in turning a corner the truck slid, and one
girl jumped off. The other two fell to the floor, the plaintiff receiving injuries to her knee and
ankle. This was a few minutes before 12:30.

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The evidence for the defendant tended to show these facts: The company had a lawn and
recreation ground, about an acre in extent, fenced in with its buildings, and five or six acres
outside, including a ballground, all of which were accessible to the employes when not at work.
The defendant had no control over them during the noon intermission. Usually at this time half
of the girls went down to a restaurant on or near the factory premises. The work of the girls in
the plaintiff's department was putting paper boxes on the powder machine. They had nothing to
do with the trucks, which were handled by men. The assistant superintendent had cautioned the
plaintiff against using the trucks, telling her that it was against the rules and very dangerous. He
knew the girls had ridden on the trucks, and he and other representatives of the company
frequently warned them against the practice, The subforeman of the powder room (called the
foreman by the plaintiff) had no authority to permit the girls to use the trucks as playthings. All
the foremen were instructed to prevent the girls from getting on the trucks.

1. The conflict of evidence as to the attitude of the company toward the girls' practice of playing
with the trucks must, of course, be resolved in favor of the plaintiff. In order for the judgment to
be upheld the evidence must have warranted two findings-that the plaintiff was injured in the
course of her employment, and that the injury arose out of her employment. The fact that she
was working by the hour, and that the accident took place out of working hours, does not
conclusively establish that it did not occur in the course of her employment. The shortness of the
intermission suggests that it was the expectation that most of the employes would remain on the
premises, and the practice shown by the evidence confirms this. The purpose of the plaintiff and
her associates in remaining in the factory after their lunch had been eaten was presumably to be
on hand when work commenced, in order that there might be no delay-a matter in which the
employer had an obvious interest. Their situation was quite like that of a workman who arrives
at the factory and is fully prepared to begin work a few minutes before the whistle blows. In the
leading English case on the subject, which has been frequently cited with approval in this
country, the scope of the decision was fairly indicated by this language of the headnote:

"A workman was paid by the hour for the number of hours per week that he was actually
engaged on his work, not including the midday dinner hour. During that hour he was at
liberty to stay and take his meal on the premises, or to go elsewhere. He stayed on the
premises, and sat down to eat his dinner, and while so doing a wall fell upon him, and he was
injured. Held, that during the dinner hour there had been no break in the employment of the
workman, and that he was entitled to claim compensation." Blovelt v. Sawyer, 1 K. B. 1904,
271.

....

Of an employe who during the noon intermission, after eating his lunch on the premises, fell
into the river and was drowned, it has been said:
"All the circumstances and facts tend to show that up to this time he expected to resume his
work when lunching time had expired, and hence he was within the scope of his service when
walking at this place." Milwaukee Western F. Co. v. Industrial Commission, 159 Wis. 635,
642, 150 N. W. 998, 999.

Other expressions bearing on the matter are:

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"The relation of master and servant, in so far as it involves the obligation of master to protect
the servant, is not suspended during the noon hour, where the master expressly, or by fair
implication, invites his servants to remain on the premises in the immediate vicinity of the
work." Bradbury's Workmen's Compensation (3d Ed.) 524.
"As directly applied to the noon intermission, it is a long and well-settled rule that the service
tie, or contractual relations and obligations between master and servant, is not broken by such
suspension of all activities directly beneficial to the employer." Haller v. City of Lansing, 195
Mich. 753, 758, 162 N. W. 335, 337 (L. R. A. 1917E, 324).

See, also, Boyd's Workmen's Compensation, § 481; 1 Honnold on Workmen's Compensation, §
111; Etherton v. Johnston Knitting Mills Co., 184 App. Div. 820, 172 N. Y. Supp. 724; Racine
Rubber Co. v. Industrial Commission, 165 Wis. 600, 162 N. W. 664; Griffith v. Cole Bros. et al.
(Iowa) 165 N. W. 577, L. R. A. 1918F, 923; Riley v. Cudahy Packing Co., 82 Neb. 319, 117 N.
W. 765; In re Sundine, 218 Mass. 1, 105 N. E. 433, L. R. A. 1916A, 318.

We conclude that there was room for a finding that the plaintiff's injury occurred in the course
of her employment. If it had been the result of some accident which was due to the physical
conditions under which the work was performed-say to the falling of plaster in the rooms where
the girls were playing-this would be quite obvious, and the judgment for the plaintiff would
clearly be warranted.

2. Whether the plaintiff's injury arose out of her employment is a more difficult question.
Injuries received in play are not usually capable of being so classified. Two illustrative cases are
reported, passed upon by a commission and a committee of arbitration, which are in some
respects quite similar to that under consideration. Socquet v. Connecticut Mills Co., Conn. W.
C. C. C. Digest, 1914-1916, p. 653; Thompson v. W. L. Douglas Shoe Co., 2 Mass. W. C. C.
145. *375 If the present case is to be taken out of the general rule, it must be upon the ground
that the habit of the girl employes to play with the trucks during the noon intermission, with the
knowledge and express consent of the foreman, and without objection by any one representing
the defendant, made such practice one of the conditions under which the business was carried on,
upon much the same principle as employers are held liable for the results of horseplay which had
grown into a custom. White v. Stockyards, 177 Pac. 522. Injuries have been held to arise out of
the employment whenever they are "such as the character of the business or the conditions under
which it is carried on make likely, and the result either was or should have been in the
contemplation of the employer." Jacquemin et al. v. Turner & Seymour Manufacturing Co., 92
Conn. 382, 103 Atl. 115, L. R. A. 1918E, 496. The plaintiff's participation in the use of the truck
would not seem necessarily to bar her recovery, her conduct being of a kind to be expected in
girls of her age, and the question of her want of care not being material, the action not being
founded on her employer's negligence.

The trial court gave an instruction to the effect that, if the plaintiff was injured as a direct and
natural result of a risk reasonably incident to the employment in which she was engaged, it must
be considered as arising out of and in the course of her employment. This is complained of, but
substantially the test proposed has often been approved. Challis v. London & South Western
Railway, 2 K. B. 1905, 154, 157; Brice v. Edward Llyod, Limited, 2 K. B. 1909, 804, 810;
Holland-St. Louis Sugar Co. v. Shraluka (Ind. App.) 116 N. E. 330; Pace v. Appanoose County
(Iowa) 168 N. W. 916; Hulley v. Moosbrugger, 88 N. J. Law, 161, 95 Atl. 1007, L. R. A. 1916C,

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1203. See, also, Benson v. Bush, 178 Pac. 747, decided February 14, 1919.

In a case in which the decision was against the employe the general rule was thus stated and
illustrated:
"The same right to compensation will follow if an injury arising from a risk of the business is
suffered while the employe is doing something which, although quite outside of his obligatory
duty, is permitted by his employer for their mutual convenience, such as eating his dinner on
the premises, or any similar act to the performance of which the employer has assented. ***
In the present case the commissioner has found, in substance if not in words, that the employer
knew of his employes' custom of heating bottles in the dry room at the mouth of the hot-air
pipe, and, upon principles familiar to courts before compensation acts were invented, the right
to so heat bottles became, by the tacit consent of the employer, a term or condition added to the
contract of employment, so that if the injury, which clearly arose from a risk of the business,
had occurred while the claimant was engaged in heating his bottle at the customary time and
place, he would doubtless have been entitled to compensation." Mann v. Glastonbury Knitting
Co., 90 Conn. 116, 120, 121, 96 Atl. 368, 369 (L. R. A. 1916D, 86).

In a case where during the noon hour an employe was found crushed by an elevator it was said:
"The deceased was required to take his lunch to the plant with him, and was permitted and
expected to eat it upon the premises. No particular place was assigned to any of the employes
to eat their lunch, but each man was permitted to eat it wherever he desired about the plant. All
the employes used the elevator during the lunch hour as they had occasion to, just as they used
it during the hours the plant was in operation. Whether the deceased was negligent in his
operation of the elevator, or in attempting to get off while it was in motion, is immaterial. ***
The proof amply sustains the finding that the accident arose out of and in the course of the
employment." Humphrey v. Industrial Commission, 285 Ill. 372, 375, 120 N. E. 816, 817.

A workman has been allowed to recover under the compensation act where he caused an
explosion by lighting his pipe near a gasoline can in a toolhouse, to which he had gone to eat his
dinner, having violated no rule, and not knowing of the presence of the vapor. Haller v. Lansing,
195 Mich. 753, 162 N. W. 335, L. R. A. 1917E, 324. In Dzikowska v. Superior Steel Co., 259
Pa. 578, 103 Atl. 351, L. R. A. 1918F, 888, the employe was permitted to recover, where he set
fire to his oily apron while lighting a cigarette; and in Whiting-Mead Commercial Co. v.
Industrial Accident Co. (Cal.) 173 Pac. 1105, an employe's injury, due to his setting fire in the
same way to a turpentine soaked bandage on his hand, was held to fall within this rule, quoted
from another case:
"Such acts as are necessary to the life, comfort, and convenience of the servant while at work,
though strictly personal to himself, and not acts of service, are incidental to the service, and
injury sustained in the performance thereof is deemed to have arisen out of the employment. A
man must breathe and occasionally drink water while at work. In these and other conceivable
instances he ministers unto himself, but, in a remote sense, these acts contribute to the
furtherance of his work. *** That such acts will be done in the course of employment is
necessarily contemplated, and they are inevitable incidents. Such dangers as attend them,
therefore, are incident dangers. At the same time injuries occasioned by them are accidents
resulting from the employment." Archibald v. Workmen's Compensation Commissioner, 77
W. Va. 448, 451, 452, 87 S. E. 791, 792 (L. R. A. 1916D, 1013).

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It would perhaps not unduly extend the principle to say that the employer might, under some
circumstances, have an interest in his employe's taking suitable exercise in *376 a brief interval
allowed for refreshment and rest.

Inasmuch as the evidence may be regarded as establishing that the play in which the plaintiff
was injured had become a settled custom, with the knowledge and indeed the express approval of
the foreman in charge of the department, and without objection on the part of any one, the court
is of the opinion that her injury may be regarded, not only as having occurred in the course of her
employment, but as having arisen out of it.

The judgment is affirmed.

All the Justices concurring.

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Court of Appeals of New York.

LEONBRUNO v. CHAMPLAIN SILK MILLS et al.

229 N.Y. 470,* 128 N.E. 711**

Oct. 19, 1920.

**711 *470 Appeal from Supreme Court, Appellate Division, Third department.

*471 Jeremiah F. Connor, of Oneida, for appellants.

Charles D. Newton, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondent.

CARDOZO, J.

The claimant while engaged in the performance of his duties in the employer's factory was
struck by an apple which one of his fellow servants, a boy, was throwing in sport at another, and
as a consequence lost the better part of the sight of one eye. He did not participate in the
horseplay, and had no knowledge of it till injured. The question is whether the accident was one
'arising out of and in the course of employment,' within the meaning of the statute (Workmen's
Compensation Law, § 3, subd. 7; Consol. Laws, c. 67).

That it arose 'in the course of employment' is unquestioned. That it arose 'out of' employment,
we now hold. The claimant's presence in a factory in association with other workmen involved
exposure to the risk of *472 injury from the careless acts of those about him. He was brought by
the conditions of his work 'within the zone of special danger.' Thom v. Sinclair, 1917 A. C. 127,
142. 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. We think with
Kalisch, J., in Hulley v. Moosbrugger, 87 N. J. Law, 103, 93 Atl. 79, that it was 'but natural to
expect them to deport themselves as young men and boys, replete with the activities of life and
health. For workmen of that age or even of maturer years to indulge in a moment's diversion
from work to joke with or play a prank upon a fellow workman, is a matter of common
knowledge to every one who employs labor.' 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 risks of such associations and conditions were risks of the
employment. Thom v. Sinclair, supra; Matter of Redner v. Faber & Son, 223 N. Y. 379, 119 N.
E. 842.

We think the precedents in this state, whatever variance of view there may be in other
jurisdictions, sustain our present ruling. This case is not within the principle of Matter of De
Filippis v. Falkenberg, 219 N. Y. 581, 114 N. E. 1064, and Matter of Stillwagon v. Callan
Brothers, 224 N. Y. 714, 121 N. E. 893, where the claimant, joining in the horseplay, had
stepped aside from the employment. Cf. Matter of Di Salvio v. Menihan Co., 225 N. Y. 123, 121
N. E. 766. This case is rather within the principle of Matter of Verschleiser v. Stern & Son, 229
N. Y. 192, 128 N. E. 126, where the claimant, while engaged in his work, was assaulted by

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fellow workmen, who wished to tease and harass him. Cf. Markell v. Green Felt Shoe Co., 221
N. Y. 493, 116 N. E. 1060; Matter of Heitz v. Ruppert, 218 N. Y. 148, 112 N. E. 750, L. R. A.
1917A, 344. We do not overlook the cases in other jurisdictions. Hulley v. Moosbrugger, supra,
was reversed by the New Jersey Court of Errors and Appeals in 88 L. J. Law, 161, 95 Atl. 1007,
L. R. A. 1916C, 1203. It is in accord, however, with a decision *473 of the Supreme Court of
Illinois. Pekin Cooperage Co. v. Industrial Board, 277 Ill. 53, 115 N. E. 128. English cases
hostile to the award (Armitage v. Lancashire & Yorkshire Ry. Co., 1902, 2 K. B. 178; Fitzgerald
v. Clarke & Son, 1908, 2 **712 K. B. 706) are inconsistent, it would seem, in principle with later
rulings of the House of Lords (Thom v. Sinclair, supra; Dennis v. White & Co., 1917, A. C. 479.
Cf. Matter of Redner v. Faber & Son, supra, and Matter of Grieb v. Hammerle, 222 N. Y. 382,
118 N. E. 805). They are certainly inconsistent with the broader conception of employment and
its incidents to which this court is now committed. Matter of Verschleiser v. Stern & Son, supra.
The risks of injury incurred in the crowded contacts of the factory through the acts of fellow
workmen are not measured by the tendency of such acts to serve the master's business. Many
things that have no such tendency are done by workmen every day. The test of liability under
the statute is not the master's dereliction, whether his own or that of his representatives acting
within the scope of their authority. The test of liability is the relation of the service to the injury,
of the employment to the risk.

The order should be affirmed, with costs.

HISCOCK, C. J., and CHASE, HOGAN, POUND, CRANE, and ELKUS, JJ., concur.

Order affirmed.

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Circuit Court of Appeals, Eighth Circuit.

KANSAS CITY FIBRE BOX CO., et al. v. CONNELL.

No. 6759.

5 F.2d 398*

March 25, 1925.

In Error to the District Court of the United States for the District of Kansas; John C. Pollock,
Judge.

Action by Raymond Connell against the Kansas City Fibre Box Company and others, removed
from the state court. Judgment for plaintiff on directed verdict, and defendants brings error.
Affirmed.

J. K. Cubbison, of Kansas City, Mo. (William G. Holt, of Kansas City, Mo., on the brief), for
plaintiffs in error.

T. F. Railsback, of Kansas City, Kan. (J. H. Brady, of Kansas City, Kan., on the brief), for
defendant in error.

Before STONE and KENYON, Circuit Judges, and SCOTT, District Judge.

KENYON, Circuit Judge.

This action is one brought by Raymond Connell against plaintiffs in error under the Workmen's
Compensation Act of Kansas (Laws 1917, c. 226), to recover for personal injuries occurring
March 21, 1923, while Connell was working in the manufacturing plant of plaintiffs in error on
what is known as a corner cutting machine, being a device for trimming and cutting corners of
boxes by means of sharp knives operated by power. His left hand became involved in said
machine, and the second, third, and fourth fingers were cut off. It was claimed in the petition
that he was entitled to compensation in the sum of $3,400 under the terms of said Workmen's
Compensation Act. The case was commenced in the district court of Wyandotte county, Kan.,
and by defendant removed to the United States District Court for the District of Kansas. At the
conclusion of the testimony the District Court directed a verdict for plaintiff in the sum of $585,
which the court computed as the amount due under the act. The case is here on writ of error,
based upon a number of assignments. However, only one question is involved on this writ, and
that is: Did the injury to Raymond Connell result 'by accident arising out of and in the course of
his employment'? The question is further narrowed by the undisputed situation that the injury
was the result of an accident that it was 'in the course of employment.' It is the position of
plaintiff in error that the injury was the result of sportive acts on the part of defendant in error
and his coworker, and hence did not arise out of the employment.

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The provision of the Workmen's Compensation Act of Kansas upon which this claim is based is
as follows:

*399 'The Obligation. If in any employment to which this act applies, personal injury by
accident arising out of and in the course of employment is caused to a workman, his employer
shall, subject as hereinafter mentioned, be liable to pay compensation to the workmen in
accordance with this act. Save as herein provided no such employer shall be liable for any
injury for which compensation is recoverable under this act.' Laws Kan. 1917, c. 226, Sec. 27.

The phrase 'arising out of and in the course of employment' is borrowed from the English
Workmen's Compensation Act. That country early recognized the injustice of placing upon the
employe all the burdens of industrial accidents, and sought to get away from the common-law
rules of negligence as a basis of recovery. Underlying these acts, now adopted by numerous
states, is a more humanitarian aspect toward men who work in great industries, and there has
been a gradual growth and development of the law in this country along that line. These
enactments are based on principles of natural justice, and are to provide for limited recoveries by
workingmen in hazardous industries, even though there may be no negligence on the part of the
employer, and though there may be negligence on the part of the employe. They are of benefit
both to employer and employe, in that it relieves them from the great expense and uncertainty of
litigation. Where machinery is destroyed or injured in industry, it is a part of the burden of
industry to supply or repair such machinery. Why should the same theory not apply as far as
practicable, where human machinery is injured in carrying on the work? There is economic loss
in both cases. The burden is one of industry, and should not all be carried by the employe. The
work of the hazardous industry cannot be successful, except by the effort of both employer and
employe. If the employe suffer an industrial accident and is crippled thereby, there is no justice
in turning him out without compensation, often leaving to him only the future of a corner beggar,
because forsooth there may have been some little negligence on his part contributing to the
injury, or inability to prove negligence on the part of the employer resulting in his injury.

. . . .

The Kansas act is similar to the acts of the various states. It is not an insurance statute, but has
its limitations as to liability. This case arising under the Kansas statute, we would be bound by a
construction given to the phrase in question by the Kansas court of highest authority. The
decisions of the Supreme Court of Kansas bearing thereon we refer to hereinafter. That the
Kansas courts are inclined to a liberal construction of the act to carry out its underlying purpose,
we may say parenthetically, is evidenced by certain words of the opinion of that court in Messick
v. McEntire, 97 Kan. 813, 816, 156 P. 740, 741, with reference to a case where they decided
contributory negligence of claimant was no defense, viz: 'Nothing save his deliberate intention to
cause the injury, his willful failure to use guards or protection provided for him, his deliberate
breach of some statutory regulation, or his intoxication can deprive him of his statutory right to
compensation for an injury.'

In instructing a verdict in this case the learned District Court drew a distinction between the law
applicable to workmen of mature years and boys, saying: 'And, if put on as strong ground as you
are contending for, any one who employs boys the age of this boy, or people of the age and
intelligence of the party who was working with him, knows they are going to be playful and

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reckless, and so on, know it when they employ them.'

The writer of this opinion believes the *400 distinction drawn by the District Court is sound, and
that, if an employer places boys as coworkers with others in hazardous employment, he is
charged under these Workmen's Compensation Acts with what may happen from the curiosity,
zeal, vigor, and boyishness of said boys; that such is a risk reasonably incident to the
employment, and if injury result to an employe therefrom during the progress of the work in
which he is employed, through the curiosity or pranks such as boys of immature age are wont to
indulge in, and which the employer must be held to know of when he employs them, the injury is
one 'arising out of the employment.' The difficulty as to that theory in this case is that there is
no evidence in this record that Connell or his coworker, Mergen, were boys. Connell, the record
shows, was 21 years of age and over. We find nothing in the record to show the age of Mergen.
Certainly a person over 21 years of age can scarcely be placed in the category of boys.

. . . .

Workmen's Compensation Acts have been productive of a multiplicity of decisions in the British
courts and in the various courts of the United States, embracing the construction of the term in
question. There has been much refinement of reasoning and confusion of the doctrines of
negligence in these decisions, where it properly has no place, until in trying to evolve any rule as
a safe guide to determine when an accident is one 'arising out of the employment' one is lost in a
labyrinth of judicial utterance. We refer to a few only of the many cases in this country where
the term 'arising out of employment' has been considered.

One of the leading cases, perhaps more often referred to than any other, is In re McNicol, 215
Mass. 497, 102 N.E. 697, L.R.A. 1916A, 306, where the court referring to the injury said: 'It
arises 'out of' the employment, when there is apparent to the rational mind upon consideration of
all the circumstances, a casual 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. But it excludes an injury which cannot
fairly be traced to the employment as a contributing proximate cause and which comes from a
hazard to which the workmen would have been equally exposed apart from the employment.
The causative danger must be peculiar to the work and not common to the neighborhood. *401
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.'

. . . .

It is strenuously urged on the part of the plaintiffs in error that at the time of this accident
Connell and his coworker were engaged in sportive acts, which have been characterized by the
courts as 'horseplay,' and that consequently the injury was not one 'arising out of employment.'
Boyd on Workmen's Compensation, Sec, 476, states the rule to be that 'injuries the result of a
spirit of playfulness on the part of the injured servant or his fellows are generally held not

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received in the course of employment.' See Bradbury's Workmen's Compensation Law, p. 100.

Stuart v. Kansas City, 102 Kan. 307, 310, 171 P. 913, 914, quotes with approval from
Workmen's Compensation Acts, a Corpus Juris treatise by Donald J. Kiser, at page 79, as
follows: 'An employee is not entitled to compensation for an injury which was the result of
sportive acts of coemployes, or horseplay or skylarking, whether it is instigated by the employe,
or whether the employe takes no part in it. If an employe is assaulted by a fellow workman,
whether in anger or in play, an injury so sustained does not arise 'out of the employment,' and the
employe is not entitled to compensation therefor, unless in a case where the employer knows that
the habits of the guilty servant are such that it is unsafe for him to work with other employes.'

In White v. Stockyards Co., 104 Kan. 90, 177 P. 522, the same doctrine is held, that ordinarily a
master is not liable under the Compensation Act for injuries to workmen which have been caused
through the mischiefs, pranks, and jokes of his coemployes, unless the master has knowingly
permitted such pranks to continue. Same doctrine, Thomas v. Manufacturing Co., 104 Kan.
432, 437, 179 P. 372, 375 (6 A.L.R. 1145) although this language in that case is significant: 'The
plaintiff's participation in the use of the truck would not seem necessarily to bar her recovery; her
conduct being of a kind to be expected in girls of her age, and the question of her want of care
not being material, the action not being founded on her employers's negligence.'

. . . .

These cases fairly show the construction put upon the act by the Kansas courts, viz. that where
employes turn aside from their work and engage in sportive acts, commonly referred to as
'horseplay,' and the accident is the result of injury received thereby, there cannot be recovery
under the Workmen's Compensation Act (barring question of immature boys heretofore referred
to, and which we pretermit). That the courts are not unanimous on this question is shown by the
following authorities:

In *403 Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 473, 128 N.E. 711, 712 (13 A.L.R.
522), an employe, while devoting his time to work, was struck in the eye by an apple thrown by a
fellow servant engaged in horseplay. It was held the injury was one 'arising out of and in the
course of his employment.' The court said: 'The risks of injury incurred in the crowded contacts
of the factory through the acts of fellow workmen are not measured by the tendency of such acts
to serve the master's business. Many things that have no such tendency are done by workmen
every day. The test of liability under the statute is not the master's dereliction, whether his own
or that of his representatives acting within the scope of their authority. The test of liability is the
relation of the service to the injury, of the employment to the risk.'

In Stark v. State Industrial Acc. Commission, 103 Or. 80, 100, 204 P. 151, 157, the court said:
'It might be remarked parenthetically that it is not to be supposed that a crew of men could be
obtained, unless some of them during working hours would play practical jokes on their fellow
workmen, especially if such men were red-blooded Americans.' See, also, Newport
Hydrocarbon Co. v. Industrial Commission, 167 Wis. 630, 167 N.W. 749.

However the general rule of the authorities, and with which the Kansas decisions are in line, is
well stated in Annotations to Workmen's Compensation Acts. L.R.A. 1918E, 504, as follows:

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'The general rule, recognized by practically all of the courts, both under the English act and
under the various American statutes, is that injuries caused by some sportive act of fellow
workmen, done independently of and disconnected from the performance of any duty of the
employment, does not arise out of the employment within the meaning of the compensation
statutes, and, consequently, no compensation will be allowed for such injuries.' This doctrine is
supported by a great majority of the cases. Plaintiff in error in its brief adopts it as the correct
rule; we think it is, and measure the case by it.

The line of demarcation between sportive acts of employes done independently of and
disconnected from the performance of duty and those in a manner connected with the
performance of duty is difficult at times to distinguish, owing to the interweaving of the facts.
Was the injury to defendant in error here the result of sportive acts, independent of and
disassociated from the performance of any duty of the employment? This requires a close and
careful analysis of the testimony.

. . . .

Does the testimony, with all its fair *405 and natural inferences, indicate that defendant in
error's injuries were received 'independently of and disconnected from the performance of any
duty of the employment'? It must be borne in mind that at the very time of this injury defendant
in error was actually engaged in the performance of a duty of his employment. He was
operating a dangerous piece of machinery with his coworker, Mergen, the Greek. His attention to
his work was attempted to be diverted by the act of Mergen holding his cap on a stick. His duty
to his employer was to keep on working, and to stop the interference with his work by Mergen.
This he attempted to do. He pulled a skull cap of Mergen's off his head and put it on the
machine, or a table in front of it, and Mergen shoved the box in and cut the cap. The shoving of
the box was a part of Mergen's work. Connell, perhaps, did not choose the best way to stop
Mergen's interference with his work. It may have been crude. He reciprocated to some extent
the play as to the caps started by Mergen. If he ceased work at all, it was but momentary.
There was no turning aside from the machine and from the work, and engaging in a fight, a
scuffle, or horseplay, as in the case of Romerez v. Swift & Co., 106 Kan. 844, 189 P. 923,
hereinbefore referred to, and in the hose cases, Tarpper v. Weston-Mott Co. et al., 200 Mich.
275, 166 N.W. 857, L.R.A. 1918E, 507, Federal Rubber Mfg. Co. v. Havolic et al., 162 Wis.
341, 156 N.W. 143 L.R.A. 1916D, 968, and also as in De filippis v. Falkenberg et al., 170
App.Div. 153, 155 N.Y.S. 761. It is as reasonable to suppose that he was trying to stop the
interference with his work as that he was engaging in any personal horseplay with his coworker.
His injury certainly was not due entirely to the scuffling or playing. It was due to a combination
of the playful acts, if they can be so designated, and the employment in connection with the
dangerous machine. The acts were not entirely independent or of disassociated from the
performance of his duty. His coworker was evidently trying to delay him and bother him. He
was trying to stop this interference. The sportive acts of the workman, at least as to defendant in
error, were not independent of their work. If Mergen had attempted to stop his work at the
machine he certainly would have been carrying out his duty to him employer in trying to prevent
him from so doing. Here Mergen kept on with his work during the attempt to bother and annoy
Connell. In nearly all of the cases where the sportive acts are held to take the case out of the
rule of injury arising out of the employment, there was a turning away from work and engaging
in a personal encounter or horseplay, so called, not connected in any way with the performance

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of any duty to the employer, but as the result of mere personal desire or whim. Here Connell in
part, at least, was serving his employer by trying to stop interference with his work, and Mergen
combined sportive acts with his work.

While in the Stuart v. Kansas City Case, 102 Kan. 307, 171 P. 913, heretofore referred to, the
party injured was engaged in his work, that question does not seem to have been considered by
the court, but the decision was based on the fact that the custom of pranks and jokes on the part
of the injured party's fellow workman was known to his immediate superiors. Injury in that case
was not the result of any effort by Stuart to prevent the party interfering with his work, and the
company employe causing the injury was doing something entirely apart from his duties. The
rule, stated in that case from Corpus Juris with approval, refers to injury sustained as the result of
sportive acts. Here the injury sustained was not the result of sportive acts entirely disconnected
from the employment. While the question is a close one, a careful analysis of the actual
occurrence, and consideration of all the circumstances, shows, we think, that the alleged sportive
acts of defendant in error and his coworker, were not 'done independently and disconnected from
the performance of any duty of the employment.' It would not seem that the broad purpose of
the Workmen's Compensation Acts should be defeated by a circumstance somewhat trivial such
as presented here, where the parties did not turn from their work and engage in the alleged
horseplay, but where both were going ahead with their work, and one of them at least resorted to
the sportive act as a means of preventing further annoyance or interference with his labor.

The judgment is therefore affirmed.

STONE, Circuit Judge (dissenting). This is an action for personal injuries under the
Workmen's Compensation Act of the state of Kansas. From a judgment on a directed verdict,
defendant sues this writ of error. The accident was caused by Connell throwing his hand in the
way of moving knives on a box-cutting machine during a playful scuffle which arose between
him and his fellow workman while they were working at the machine. The play arose over the
caps of *406 the two workmen and the threatened move of the other workman to put Connell's
cap where it would be cut by the knives. But one question is presented here. That question is
whether the master is liable, under the Kansas Workmen's Compensation Act, for injuries
resulting from playful pranks between workmen of age where the employer has not notice or
knowledge of such habits or play and does not permit it. Of course, the answer to this question
has to be sought in the proper construction to be given that act. The construction of a state
statute is a matter of local law; therefore, the decisions of the Supreme Court of Kansas must be
examined to ascertain whether that court has determined the question before us. If it has, that
decision is binding here.

There are several cases, not involving injuries from pranks or play, which state generally the
view of the Supreme Court of Kansas as to how the cause or occasion of the injury must be
connected with the employment to come within the act.

. . . .

Fortunately, we are not left to apply such general statements of the rule to cases, like the present,
where the injury is the direct result of playfulness or pranks. The Kansas Supreme Court has
considered liability from such causes in the cases of Thomas v. Manufacturing Co., 104 Kan.

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432, 179 P. 372, 6 A.L.R. 1145, White v. Stockyards Co., 104 Kan. 90, 177 P. 522, and Stuart v.
Kansas City, Kansas, 102 Kan. 307, 171 P. 913, and 102 Kan. 563, 171 P. 913. Stuart v. Kansas
City, Kansas, 102 Kan. 307, 171 P. 913 (on rehearing 102 Kan. 563, 171 P. 913), was an eye
injury to plaintiff from mortar thrown in sport by a fellow workman during the course of the
work. The instruction of the trial court permitted recovery irrespective of the notice or
knowledge of defendant as to the habit of the workman, who threw the mortar, to engage in
dangerous play. Because of this error in the instruction, the case was reversed, the Supreme
Court, at page 310 (171 P. 914), saying:

'A clear and concise statement of the law governing compensation for injuries to employees
caused by play is found in Workmen's Compensation Acts, a Corpus Juris treatise, by Donald J.
Kiser (page 79), and is as follows: 'An employee is not entitled to compensation for an injury
which was the result of sportive acts or coemployees, or horseplay or skylarking, whether it is
instituted by the employee, or whether the employee takes no part in it. If an employee is
assaulted by a fellow workman, whether in anger or in play, an injury so sustained does not arise
'out of the employment,' and the employee is not entitled to compensation therefor, unless in a
case where the employer knows that the habits of the guilty servant are such that it is unsafe for
him to work with other employees.' The rule there declared is supported by Western Indemnity
Co. v. Pillsbury, 170 Cal. 686; McNicol's Case, 215 Mass. 497; Scott v. Payne Bros., 85
N.J.Law, 446; In re Loper (Ind. App.) 116 N.E. 324; Clayton v. Hardwick Colliery Co., 85
L.J.K.B. 292. Under these authorities the rule is that where a workman, known by his master to
be in the habit of indulging in dangerous play with his fellow workmen, is retained in the
master's employ, the danger of injury from such play becomes an incident of the employment of
the other workmen, and injury to any of the other workmen, while performing his regular work,
caused by such play, comes within the provisions of the Workmen's Compensation Act.'

In a short opinion denying a rehearing, the court accentuated its position (102 Kan. 563, 171 P.
913), by saying:

'The plaintiff has filed an application for a rehearing, and, in that application, asks that, if a
rehearing is denied and the judgment stands reversed, the new trial be directed on the proposition
on which the judgment was reversed. The judgment was reversed on the ground that an
instruction was erroneous because it did not submit to the jury the question of the defendant's
knowledge of the dangerously playful habits of William Deeds, a fellow workman with *407
whom the plaintiff was working at the time of his injury. of his injury.

'The judgment of reversal is adhered to, and a new trial is granted on the following questions:
(1) Was the plaintiff injured by William Deeds, accidentally or in sport? (2) If the plaintiff was
injured by William Deeds in sport, was William Deeds in the habit of indulging in dangerous
play with his fellow workmen? (3) If William Deeds was in the habit of indulging in dangerous
play with his fellow workmen, did the defendant have notice or knowledge of that habit?'

To the same effect is the case of White v. Stockyards Co., 104 Kan. 90, 177 P. 522. Also, see
statement in Monson v. Battelle, 102 Kan. 208, at page 213, 170 P. 801. Both the Stuart and the
White Cases were instances of injuries to adults from the pranks of other adults.

Admitting that the above rule would govern if the injury was occasioned to and by an adult,

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defendant in error contends that a different application of the rule must be made as to children or
youths. His position is that although there would have to be proof of notice and knowledge in
the employer respecting the habit of dangerous play if the injury concerned adults alone; yet, as
to children or youths, this notice and knowledge must be conclusively presumed to exist because
the playfulness and recklessness of young people is universally known. . . . .

....

There was no evidence of any custom or habit of playing, either by the workman causing the
injury or by others. There was, of course, no evidence of notice or knowledge in the employer
as to playing. Although this scuffling and play arose while the injured man was working, yet he
voluntarily participated therein, and it was while playing and as a direct result of such playing
that the injury resulted. I am unable, upon the facts, to distinguish this case from the Stuart
Case, supra, where the injury occurred while the parties were at their work.

I think the case is governed by the Kansas decisions cited and should be remanded.

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Supreme Court of Tennessee.

BORDEN MILLS, Inc. v. McGAHA.

161 Tenn. 376, 32 S.W.2d 1039*

Nov. 28, 1930.

Error to Law Court of Sullivan County; H. T. Campbell, Judge.

*1040 Carl K. Kirkpatrick and Worley, McAmis, & Hauk, all of Kingsport, for plaintiff in error.

Dodson & Ferguson and Kelly & Penn, all of Kingsport, for defendant in error.

GREEN, C. J.

This suit was brought by an employee of the plaintiff in error to recover under the workmen's
compensation statute for injuries alleged to have been sustained by her, arising out of and in the
course of her employment. There was an award in her favor below.

No question is made as to the amount of award, nor is it denied that the employee is disabled as
claimed. The defenses to the suit are three: (1) That the statutory notice was not given; (2) that
the employee is suffering from a disease not brought about from injury; and (3) that the injury, if
responsible for the disease, did not arise out of and in the course of her employment.

We think that the employer waived the notice. Within thirty days of the alleged injury, the father
of the girl called on the superintendent of the employer, told of her condition, and stated her
claim. The superintendent expressed the opinion that the girl's condition was not due to any
injury she had received, but to disease, and declined unequivocally to pay her any compensation.
In view of this flat denial of liability on the part of the superintendent, a written notice would
have been an idle ceremony. Such being the facts, we think the employer waived the written
notice, just as a denial of liability on the part of an insurance company waives a written notice
for which the policy provides. Insurance Co. v. Hancock, 106 Tenn. 513, 62 S. W. 145, 52 L. R.
A. 665; Insurance Co. v. Thornton, 97 Tenn. 1, 40 S. W. 136.

Four doctors testified on the trial below. It appears that the employee is suffering from ankylosis
of the right wrist, resulting in a 50 per cent. loss of the use of her right hand. Two of the doctors
were of opinion that the injury she claimed to have received had no connection with her
condition. Two of the doctors were of opinion that this injury either induced or aggravated the
disease. She and members of her family testified that, prior to the injury, she had full use of this
hand. Upon such proof the trial judge found in favor of the employee, and we cannot disturb his
finding.

The employee testified that she worked in the mill at night; that she reported shortly before 6:30
p. m., when she was due to go to work; that at 6:30 p. m. she was sitting on a box at her place of
work waiting for the frames at which she worked to be brought up. It appears that this box was

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mounted on wheels. While she was sitting, as stated, another employee, in a spirit of fun, came
up behind her, began pushing the box, and rolled her rapidly up the floor of the room. In making
a turn she was thrown off the box, and claims to have fallen on her wrist and injured it. She and
her family describe the subsequent soreness and swelling of this member.

It has been held in a number of cases that compensation is not recoverable by an employee for
injuries sustained through horseplay or skylarking, done independently or disconnected from the
performance of any duty of the employment, on the ground that such injuries did not arise out of
the employment. Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 P. 212, L. R. A. 1916F,
1164; White v. Kansas City Stock Yards Co., 104 Kan. 90, 177 P. 522; Moore's Case, 225 Mass.
258, 114 N. E. 204; Payne v. Industrial Commission, 295 Ill. 388, 129 N. E. 122, 13 A. L. R.
518.

Other cases, under facts quite similar, hold that such injuries do arise out of and in the course of
the employment. Socha v. Cudahy Packing Co., 105 Neb. 691, 181 N. W. 706, 13 A. L. R. 513;
Leonbruno v. Champlain Silk Mills, 229 N. Y. 470, 128 N. E. 711, 13 A. L. R. 523; Glenn v.
Reynolds Spring Co., 225 Mich. 693, 196 N. W. 617, 36 A. L. R. 1464.

Other cases, presenting each view, are collected in A. L. R. notes vol. 13, 540; vol. 20, 882; vol.
36, 1469; vol. 43, 492; vol. 46, 1150.

In Leonbruno v. Champlain Silk Mills, supra, the employee was struck by an apple which one of
his fellow servants was throwing in sport at another, and the New York Court of Appeals said:
"That it arose 'in the course of employment' is unquestioned. That it arose 'out of' employment,
we now hold. The claimant's presence in a factory in association with other workmen involved
exposure to the risk of injury from the careless acts of those about him. He was brought by the
conditions of his work 'within the zone of special danger.' Thom v. Sinclair, 1917 A. C. 127,
142, [[[86 L. J. P. C. N. S. 102, 116 L. T. N. S. 609, 33 Times L. R. 247, 61 Sol. Jo. 350, 10 B.
W. C. C. 220, Ann. Cas. 1917D, 188.] 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. We think with Kalisch, J., in Hulley v. Moosbrugger, 87 N. J. Law, 103,
93 A. 79 [8 N. C. C. A. 283], that it was 'but natural to expect them to deport themselves as
young men and boys, replete with the activities of life and health. For workmen of that age or
even of maturer years to indulge in a moment's diversion from work to joke with or play a
prank upon a fellow workman, is a matter of common knowledge to every one *1041 who
employs labor.' 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
risks of such associations and conditions were risks of the employment. Thom v. Sinclair,
supra; Matter of Redner v. H. C. Faber & Son, 223 N. Y. 379, 119 N. E. 842."

Some of the decisions make a distinction between cases in which the injured employee is
engaging in the horseplay or skylarking and cases in which the injured employee took no part
therein but was attending to his duties. Hollenbach Co. v. Hollenbach, 181 Ky. 262, 204 S. W.
152, 13 A. L. R. 524; Markell v. Daniel Green Felt Shoe Co., 221 N. Y. 493, 116 N. E. 1060;
Willis v. State Industrial Commission, 78 Okl. 216, 190 P. 92; Newport Hydro Carbon Co. v.
Industrial Commission, 167 Wis. 630, 167 N. W. 749.

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This seems to us a sound distinction, for, if the injured employee is participating in foolishness,
it seems to us a question may then arise as to whether he has so departed from his employment.
Otherwise, if he is proceeding in his employment and injured by the foolishness of another in
which he did not participate.

The expression of the New York Court of Appeals heretofore quoted seems in line with previous
decisions of this court. Early-Stratton Co. v. Rollison, 156 Tenn. 256, 300 S. W. 569; Carmichael
v. Mahan Motor Co., 157 Tenn. 613, 11 S.W.(2d) 672, 673. In the latter case it was said that "an
injury 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." For the reasons stated by the New
York court, we think that such causal connection exists here.

The judgment below is affirmed.

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NEAL v. BOEING AIRPLANE CO. et al.

161 Kan. 322,* 167 P.2d 643**

No. 36558.

April 6, 1946.

Carl I. Winsor, of Wichita (Harlin E. Bond and Rupert Teall, both of Wichita, on the brief), for
appellant.

John F. Eberhardt, of Wichita (Robert C. Foulston, George Siefkin, Samuel E. Bartlett, George
B. Powers, Carl T. Smith, Stuart R. Carter, and Thomas E. Woods, all of Wichita, on the brief),
for appellees.

HOCH, Justice.

The question presented by this appeal is whether an injury to an employee suffered as a result of
a sportive act or 'horseplay' in which he was indulging, is compensable under the Workmen's
Compensation Act. Gen.St.1935, 44-501 et seq. The commissioner and the district court upon
appeal denied compensation on the ground that the injury did not arise out of the employment.
The claimant appeals.

We are not here dealing with any question of controverted fact. At the hearing before the
commissioner there was some conflict *323 of testimony as to the circumstances under which
the injury took place, but this conflict was resolved against the claimant by the commissioner and
the commissioner's finding was affirmed by the district court. The finding of fact is conclusive
here since it is not our function to weigh conflicting evidence. G.S.1935, 44-556; Goss v.
McJunkin Flying Service, 157 Kan. 684, 143 P.2d 659; Scott v. Kansas Western Pipe Line Co.,
158 Kan. 160, 146 P.2d 366. Appellant concedes this to be true and rests his case entirely upon
the contention that an injury resulting from horseplay indulged in under circumstances of
employment here existing should be held to be one **645 ' arising out of' the employment, and
therefore compensable under the Act.

Appellant was employed as an 'expediter' by the respondent, his duties being to see that the flow
of production through his department was kept moving. At a time when apparently there was a
lull in the work, some of the employees, including appellant, engaged in the pastime of
attempting to lift and raise above their heads a large roll of waxed paper which was standing in
the aisle of the department. There was some wagering among them as to whether they could
perform the feat. While the appellant had the roll of paper balanced upon one hand and was
attempting to raise it above his head, it slipped and fell against his neck causing the injury of
which he now complains. Appellant does not contend that this horseplay had been a matter of
common practice or that the employer had any knowledge concerning it or had in any way

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acquiesced in it. On the contrary, the only testimony here shown upon the point is that of the
assistant foreman who was in charge of that department who testified that on the day before the
accident happened, he saw two or three employees attempt to lift the paper and told them it was
too heavy to lift, and to leave it alone or they would get hurt. Appellant says that one of the
employees who had engaged in the sport testified that he had played with this roll of paper on
occasions before and that 'there were no certain rules against playing with rolls of paper.'

The Workmen's Compensation Act covers only personal injuries 'by accident arising out of and
in the course of employment.' G.S.1935, 44-501. We have repeatedly held that the phrase
'arising out of' implies some causal connection between the accidental injury and the
employment. Rush v. Empire Oil & Refining Co., 140 Kan. 198, 34 P.2d 542. 'If the injury did
not result directly from performance of the work for which the workman was *324 employed it
must at least have been suffered while performing some act which was normally and commonly
incident to such work.' Brandon v. Lozier-Broderick & Gordon 160 Kan. 506, 509, 163 P.2d
384, 386. The burden is upon the claimant to show that the injury was one 'arising out of' the
employment. Jones v. Lozier-Broderick & Gordon, 160 Kan. 191, 195, 160 P.2d 932, 935;
McMillan v. Kansas Power & Light Co., 157 Kan. 385, 139 P.2d 854.

On this record it is unnecessary to examine the cases in which the employee was injured as the
result of sportive acts or horseplay commonly indulged in by other employees with the
knowledge and acquiescence of the employer, but in which he was not a participant. Appellant
concedes that most of the 'older' cases have held that the claimant could not recover where he
was a participant in the horseplay which resulted in the injury and that in some cases recovery
has been denied even where he was not a participant but was the innocent victim of the horseplay
of fellow employees.

Appellant's contention is that there is a 'modern trend' which should be followed, away from the
old rule which denied recovery where the claimant's own act of horseplay resulted in injury. He
argues that the stresses and strains resulting from the close association of employees under
conditions common to modern industry inevitably lead to pranks, to sportive acts or horseplay
between them, and that the injuries resulting from such acts, even by a participant, should be
regarded as one of the perils of the employment which the Compensation Act was intended to
cover. Whatever persuasion there may be in that argument, it is one to be addressed to the
legislature and not to the court, in view of the construction repeatedly and consistently given to
the act.

We find no decision of this court allowing compensation in a case in which the claimant was
injured as the result of some play or sportive act of his own. Indeed, compensation has been
denied even where the injured employee was not a participant unless it has been shown that the
horseplay or dangerous practice on the part of the employees had become a customary thing
known to and acquiesced in by the employer.

A few typical quotations from Kansas cases will suffice. In White v. Kansas City Stock Yards
Co., 104 Kan. 90, 177 P. 522, it was said:

'It has also been held that, while ordinarily a master is not liable under the compensation act for
injuries to a workman which have been caused through the mischievous pranks and sportive

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jokes of his coemployes, yet the rule is otherwise where the master has knowingly permitted
such mischievous pranks *325 to continue. In such cases the danger of injury becomes an
incident **646 of the employment.' (Italics supplied.)

From Thomas v. Proctor & Gamble Manufacturing Co., 104 Kan. 432, 179 P. 372, 375, 6
A.L.R. 1145:

'If the present case is to be taken out of the general rule, it must be upon the ground that the
habit of the girl employes to play with the trucks during the noon intermission, with the
knowledge and express consent of the foreman, and without objection by anyone representing
the defendant, made such practice one of the conditions under which the business was carried
on, upon much the same principle as employers are held liable for results of horseplay which had
grown into a custom.' (Italics supplied.)

The opinions in the Kansas City Stock Yards Co. and Proctor & Gamble Manufacturing Co.
cases, supra, cited Stuart v. Kansas City, 102 Kan. 307, 171 P. 913, 914, wherein it was said:

'Under these authorities the rule is that where a workman, known by his master to be in the habit
of indulging in dangerous play with his fellow workmen, is retained in the master's employ, the
danger of injury from such play becomes an incident of the employment of the other workman,
and injury to any of the other workmen, while performing his regular work, caused by such play,
comes within the provisions of the workmen's compensation act.' (Italics supplied.)

See also Monson v. Battellee, 102 Kan. 208, 170 P. 801; Peavy v. C. W. Merydith Contracting
Co., 112 Kan. 637, 211 P. 1113, 29 A.L.R. 435; Covert v. John Morrell & Co., 138 Kan. 592, 27
P.2d 553; Finck v. Galloway, 139 Kan. 173, 29 P.2d 1091; Addington v. Hall, 160 Kan. 268, 160
P.2d 649.

The construction placed upon our statute is in harmony with overwhelming weight of authority.
71 C.J. 681; 28 R.C.L. 811. The latest annotation on the subject is found in 159 A.L.R. (1945)
beginning at page 319, and supplementing prior annotations therein noted. The general rule of
non-compensability is there again restated, citing many recent decisions from fifteen
jurisdictions. Even from recent cases cited wherein compensation was allowed, the annotator
makes he following deduction:

'Many of the later cases recognize that an exception should be made, and the right of
compensation sustained, where an employee who was injured through horseplay or fooling by
other employees took no part in it, but was attending to his duties, or endeavoring to do so, the
general theory, although expressed in different ways, being that there is in such a case no such
departure from duty by the injured employee as should bar him from recovery, and that such a
contingency should in reality be considered as a risk or condition of the employment, being far
different, at least in degree, from a case of voluntary participation or deliverate aggression.'
(Italics supplied.)

*326 Appellant supports his contention with a few cases from other jurisdictions. Some of them
are readily distinguishable from the one before us and in any event they represent the view of a
small minority. It is not necessary to lengthen this opinion by examining these cases.

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From general textbook discussions, the appellant cites only a comment from 159 A.L.R. 319--
from which we have already noted a restatement of the general rule--and a statement from
Horovitz on Workmen's Compensation (1944). Examination of the two statements and their
context affords little support for a departure from the general rule long adopted in this state. The
statement cited from 159 A.L.R. is simply that:

'Several cases have taken a somewhat advanced position with respect to the essential character
and admitted frequency of ordinary horseplay in its relation to modern industrial conditions,
holding that not all conduct of this character, although originating in some act of the injured
employee, is to be considered as a departure from duty, or as penalizing him for all the
consequences which may follow.' (Italics supplied.)

The statement quoted from the textbook by Horovitz is:

'The more recent tendency is to allow an award without regard as to who was the immediate
aggressor [in horseplay.] where the injury is a by-product of associating men in close contacts,
recognizing the 'strains and fatigue from human and mechanical impacts.''

But this was only part of the paragraph from which the quotation was taken. The statement had
reference primarily to cases in which the injured workman was not a **647 participant in the
horseplay. The part of the paragraph immediately preceding the above quotation is as follows:

'Horseplay or larking among employees is unfortunately too common. The use of the power
hose and other means of 'goosing' has caused many injuries or deaths to innocent victims, as has
the throwing of nails, apples and like objects by employees who think pranks 'funny'. Does not
the placing of employees in close proximity increase the risk of injury and make the result
conpensable? Courts disagree, the more liberal ones placing the burden on the offending
industry, where the injured man is an innocent victim and does not take part in the horseplay.
The aggressor is usually denied recovery. Massachusetts denied recovery even to innocent
victims, and finally came into line by statute in 1937.' (Italics supplied.)

It follows from what has been said that appellant's injury did not arise out of the employment.

The judgment is affirmed.

Professor Goering September 7, 2006
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Supreme Court of Kansas

Lottie M. CARTER, Appellant,

v.

ALPHA KAPPA LAMBDA FRATERNITY, INC. (Iota of Alpha Kappa Lambda
Alumni, Inc.)
and Travelers Insurance Company, Appellees

No. 44568

197 Kan. 374,* 417 P.2d 137**

July 14, 1966.

C. K. Sayler, Topeka, argued the cause, and Richard C. Wells, Manhattan, and Edwin D.
Smith, Topeka, were with him on the brief, for appellant.

Roscoe E. Long, Topeka, argued the cause, and O. B. Eidson, Philip H. Lewis, James W.
Porter, Charles S. Fisher, Jr., William G. Haynes, Peter F. Caldwell, R. Austin Nothern,
and Brock R. Snyder, Topeka, were with him on the brief, for appellees.

**138 HARMAN, Commissioner.

In this workmen's compensation case recovery was denied claimant by the examiner for
the workmen's compensation director, by the director, and upon appeal by the district
court for the reason that the alleged accidental injury did not arise out of and in the course
of her employment, and she appeals to this court.

There was but slight conflict in the evidence. Where conflict does exist, upon review
the evidence must be considered in the light most favorable to the prevailing party in the
court below (Callahan v. Martin K. Eby Construction Co., 192 Kan. 814, 391 P.2d 315)
and the essential facts may therefore be summarized as follows: Claimant, a cook in the
employ of respondent fraternity, while on duty as such prior to the incident in question
had participated in horseplay among the houseboys who also worked in the kitchen with
claimant. This horseplay had consisted of, among other things, tossing water upon one
another. Upon the evening of the incident in question one of the houseboys, one Cole,
had thrown a piece of bread at claimant and hit her in the back of the neck. Cole told her
that another houseboy, John Hamilton, had thrown the bread, whereupon *375 claimant
and Hamilton had some conversation and then claimant and Hamilton tossed some water
upon each other. This episode ended without any untoward consequences and Hamilton
went on with his work in the dining room preparing the tables for dinner. Some fifteen or
twenty minutes later Hamilton returned to the kitchen. Claimant drew a large can of hot
water from the faucet and put it on the stove. She called Hamilton to her and threatened
to pour the water on him. Hamilton told her not to throw the water upon him, but she
attempted to do so. As found by the examiner, Hamilton struck her, causing her to fall to
the floor and sustain the injury of which she complains. Evidence on behalf of the

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respondent indicated that Hamilton had a good reputation, that he was not considered a
troublemaker, that he had never had any trouble with claimant, and that he was generally
considered cooperative, helpful and dependable.

The examiner in concluding that the alleged injury did not arise out of and in the course
of the employment found that a blow from Hamilton caused the claimant to fall and
'* * * that the injury caused by the fellow employee, John B. Hamilton, was
unexpected, that the Respondent had no reason to believe that the Claimant would be
subjected to an assault, nor had any reason to believe that John B.Hamilton was a
turbulent or violent character. On the other hand, it appears that the Claimant
participated in the horseplay and in fact was the aggressor and brought about the
assault * * *,'
and he denied award of compensation. These findings were later approved and adopted
by the director and the trial court.

The workmen's compensation act covers only accidental injury 'arising out of and in the
course of employment * * *' (K.S.A. 44-501).

Claimant would have us treat this case merely as one of horseplay and apply the rule that
the participant in so-called horseplay may recover compensation for his injury as a result
of his own horseplay where the horseplay has become a regular incident of the
employment, and indeed this court has so held. In Thomas v. Proctor & Gamble
Manufacturing Co., 104 Kan. 432, 179 P. 372, 6 A.L.R. 1145, recovery of compensation
was permitted a seventeen year old girl who was injured during the noon hour by falling
from a small truck upon which she and other girls were riding for amusement, and which
they had been in the habit of so using to the knowledge and without the objection of the
employer.

Unfortunately for claimant we have here a different situation, *376 and the test of
whether or not an incident arose out of and in the course of the employment must **139
depend in each case on its own peculiar facts. It was specifically found here by the trier
of the fact that previous horseplay had concluded and that any injury was the result of an
assault by a fellow employee. An assault is properly act of horseplay or a playful
sportive act of horseplay or frivolity. The rule in Kansas is well established that if an
employee is intentionally injured by another employee, he cannot recover compensation
unless the wrongful conduct has become habitual and the habit known to the employer.
In Hallett v. J. T. Mc.Dowell & Sons, 186 Kan. 813, 352 P.2d 946, this comment on
several Kansas cases therein cited is made:

'Suffice it to say running through all of them is the rule that if an employee is
assualted by a fellow workman, whether in anger or in play, an injury so sustained
does not arise 'out of the employment' and the employee is not entitled to
compensation unless the employer had reason to anticipate that injury would result if
the two continued to work together.' (p. 817, 352 P.2d p. 949.)

The question of whether there has been an accidental injury arising out of and in the
course of the employment is a question of fact and when determined by the district court
the finding will not be disturbed by this court where there is substantial evidence to

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sustain it (Atwell v. Maxwell Bridge Co., 196 Kan. 219, 409 P.2d 994).

The findings of the district court to the effect that there was an assault upon claimant,
that it was unexpected and that respondent had no reason to believe she would be subject
to such an assault, and the consequent conclusion that the injury did not arise out of the
employment were fully supported by the evidence. The fact that claimant may have
provoked the assault certainly cannot add to her cause.

The judgment of the trial court is affirmed.

Approved by the court.

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