I dissent. The respondent was employed as a truck driver. His injury was received while he and three other employees were playing a game of handball during the lunch period in the employer's garage where the truck drivers and garage employees ate their lunch. There were no handball courts in the garage. The respondent testified at the hearing before the *Page 497 board and said that the ball game was no part of his employment and that he voluntarily engaged in the game.
There is naught in the record to show that the employer encouraged the game, sponsored it in any manner, or contributed in any way to it. From the record the game appears to have been merely the impromptu playing thereof by any four employees who might care to get in the game at such time as might be available from their brief half hour lunch period. The only knowledge of the playing that the employer had was the knowledge of the foreman of the garage who on occasion entered into the game.
If such sporadic playing of handball may be said to have been permitted by the employer, a matter not material in any event it was not by any affirmative word or action of the employer but by the mere omission of a specific prohibition against it.
The employees' compensation act provides that employers who elect to pay compensation as provided in the Act shall not be subject to any other liability for personal injury to any employee except as in the Act provided. Sec. 2838, Rev. Codes of Montana, 1935. And the Act provides that the employer shall be liable for the payment of compensation to the employee "who shall receive an injury arising out of and in the course of his employment." Sec. 2911, Rev. Codes. It is by reason of this limitation of the scope of the Act to injuries stemming from the employment that courts have deemed it necessary, or at least proper, to say when cases before them appear to be on or beyond the borderline of this field of the Act's operation, that the Act does not make the employer an insurer of his employees. This court has found it proper to say so in several cases, later ones being Griffin v. Industrial Accident Fund, 111 Mont. 110,106 P.2d 346, and Sullivan v. Roman Catholic Bishop of Helena,103 Mont. 117, 61 P.2d 838.
It may be that in a future time in the evolution of employer and employee relationships there may emerge some comprehensive *Page 498 plan of insurance compensation for death, accident and disease, no matter how caused, for the benefit of all engaged in industry, but when and if such all embracing protection shall be provided it must be by action of the lawmaking power of the state. The courts do not possess this power.
The terms "arising out of" and "in the course of his employment," are used conjunctively and the burden of proof is upon a claimant to establish, by a preponderance of the evidence, that his injury resulted from (1) an industrial accident, (2) arising out of, and (3) in the course of his employment. Landeen v. Toole County Refining Co., 85 Mont. 41, 277 P. 615; Wirta v. North Butte Mining Co., 64 Mont. 279, 210 P. 332, 30 A.L.R. 964.
It "arises out of the employment" when the cause of the injury is from exposure to a hazard peculiar to the employment, or from a risk of the employment to which the workman is exposed by his employment. Wiggins v. Industrial Accident Board, 54 Mont. 335,170 P. 9, L.R.A. 1918F, 932, Ann. Cas. 1918E, 1164.
An accident arises "in the course of his employment" if it occurs while the employee is performing some duty of his employment, or some act that is incidental to his work. Wirta v. North Butte Mining Co., supra.
These two rules are the cardinal principles of the Act. How is it possible to bring the case of respondent's injury received while he was playing handball, within these rules? How may it be said that his injury arose out of his employment as a truck driver? Or out of any employment that he might be called upon to perform for his employer in any capacity or in any branch of its business? To be compensable the injury must come from some hazard or risk of the employment. And to arise in the course of his employment it must occur while he is doing some act of his employment or something that is incidental thereto.
It is held that acts necessary to the life, comfort, and convenience *Page 499 of the employee are incidental to his employment. Such acts as obtaining a drink of water, obtaining, under some conditions, refreshment, attending to natural wants, even lighting a cigarette, have been held to be incidental to the employment. Whiting-Mead Commercial Co. v. Industrial Accident Commission,178 Cal. 505, 173 P. 1105, 5 A.L.R. 1518. But no case holds, nor can it be said, that indulgence in a handball or like game is necessary to the life, comfort or convenience of the employee.
Unless then, the handball game was a part of his employment, or a risk of his employment, he may not recover. So clear it is that it was not a part of his employment that it is not contended for here. In fact respondent himself testified that it was not. But it is said that the injury received in the game arose from a risk of his employment as announced in the so-called horseplay cases. One solitary case similar upon the facts is found and cited to sustain the award here. The case is that of Thomas v. Proctor Gamble Mfg. Co., 104 Kan. 432, 179 P. 372, 375, 6 A.L.R. 1145, which held that playing with a truck by girl employees during the lunch period, in which one of the girls was injured, might be taken out of the general rule that such injury in play is not compensable, by deciding it "upon much the same principle as employers are held liable for the result of horseplay which had grown into a custom."
Following the statement just quoted the Kansas court cites to support it, White v. Kansas City Stockyards Co., 104 Kan. 90,177 P. 522. The White case holds that White, who was injured by "a mischievous prank perpetrated upon him" by fellow employees, was entitled to compensation. White was a victim, not a participant, in the affair. These two Kansas cases are cited in Conklin v. Kansas City Public Service Co., 226 Mo. App. 309,41 S.W.2d 608, which will be given consideration further on, but first:
A brief survey of the horseplay cases and the principle followed therein of "a risk of the employment" demonstrates *Page 500 the murky nature of the reasoning in the Thomas case cited as authority to sustain the award here.
The cases within this category denied compensation to the employee injured thereby whether a participant in the sport or not, but the later cases follow the more liberal and proper rule that if the injured employee is attending to the duties of his employment, or performing some act incidental thereto, and is injured by horseplay while not a participant therein, his injury is compensable.
Justice Cardozo announced this modern rule applicable in such cases as follows:
"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. Hedid 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 * * *
"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." Leonbruno v. Champlain Silk Mills, 229 N.Y. 470,128 N.E. 711, 13 A.L.R. 522. Emphasis supplied.
And Justice Cardozo further said, 229 N.Y. 470, 128 N.E. at page 711, 13 A.L.R. 522, at page 523: "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. (Citing cases.) This case is rather within the principle of Matter of Verschleiser v. [Joseph] Stern Son, 229 N.Y. 192, 128 N.E. 126, where the claimant, while engaged in *Page 501 his work, was assaulted by fellow workmen, who wished to tease and harass him."
A late case in California, Pacific Employers Ins. Co. v. Industrial Accident Commission, 26 Cal. 2d 286,158 P.2d 9, 159 A.L.R. 313, holds that injury through horseplay of fellow employees throwing hard rolls at each other in clearing up a hotel dining room, to a nonparticipating employee struck in the eye by a roll, is one arising out of the employment even though the horseplay was neither customary nor permitted by the employer.
In the case of Hartford Accident Indemnity Co. v. Cardillo,310 U.S. 649, 60 S. Ct. 1100, 84 L. Ed. 1415, Id., 72 App. D.C. 52,112 F.2d 11, 15, the United States court of appeals for the district of Columbia, states the rule applicable to these cases, that the danger of injury from the horseplay of fellow employees constitutes a risk of the industry, saying, "So long as theclaimant is merely the victim, not a participant, it makes little difference whether the fighting is by fellow employees or strangers to the work or what is the immediate occasion for the dispute. The same is true in horseplay. It is sufficient that the work brings the claimant within the range of peril by requiring his presence there when it strikes." (Emphasis mine.)
The annotation in 13 A.L.R. beginning on page 540 cites cases from many states, as well as from England, Canada, and Scotland, the earlier of the cases denying compensation to employees injured in horseplay, as not arising out of his employment, and the later cases generally holding that an employee injured in horseplay in which he was not a participant, may be compensated as an injury received from a risk of the employment. A like collection of later cases is found in 159 A.L.R. in the annotation to Pacific Employers Ins. Co. v. Industrial Accident Commission, supra, of twenty-one pages beginning at page 319, adhering to the same pattern, some cases denying compensation regardless of whether the injured one participated or not, and the others following the modern *Page 502 rule that compensation is allowed if the injured employee did not take part in the skylarking activities, but was attending to his duties when injured. In the more than one hundred cases from many states, and from England, whence our Workmen's Compensation Act came, cited in these annotations not one is cited holding that a player and participant in the game who is injured therein may be compensated.
In Re Petersen's case, 138 Me. 289, 25 A.2d 240, it was specifically found that Petersen "was the innocent victim and that his only participation in the incident was to protect himself." The case is strictly in accord with the principle that an employee who is injured while he is voluntarily participating in the activity may not be compensated because his injury did not arise out of nor in the course of his employment. The case is cited in the annotation in 159 A.L.R. in support of this established modern rule.
The industrial accident board in its decision and award referred to the case of Conklin v. Kansas City Public Service Co., supra, and said:
"A search of authorities fails to disclose any cases that are exactly similar so far as facts are concerned, with the possible exception of Conklin v. Kansas City Public Service Company, above mentioned, but all authorities tend toward the view that accidents are compensable when the happening occurs on the premises of the employer, even though the employee may be engaged in performing a personal act when injured.
"The Industrial Accident Board of Montana does not believe that the Legislature intended to provide compensation for workmen injured while at play, * * *."
The Conklin case cites and relies on the Kansas cases of Thomas v. Proctor Gamble Co., supra, and White v. Kansas City Stockyards Co., supra, to support its decision awarding compensation to Conklin who was injured while watching an indoor ball game. The case is beside the point here for the injured employee there was merely watching the game of *Page 503 indoor baseball, not a participant therein, and so, if it could be said that during his lunch period on the premises, it was in the course of his employment, he might be within the later and more liberal rule that applies in the horseplay cases, that is, that to an employee not participating in the play, it was a risk of the employment.
Furthermore, the employer there encouraged the game of indoor baseball to be played in its paint shop, between organized teams of the crafts employed and on one occasion promoted a deluxe game and paid full time to all the players and to the employees who attended the game. The court held that the employer sponsored and encouraged the game and made it an incident of the employment. While the Conklin case is not applicable here it is interesting to note that the Supreme Court of Missouri puts a boundary against any extension of its application, and courts of other states where it has been cited give it but scant and cold respect. It is not a decision of the Supreme Court of Missouri but merely of the Kansas City Court of Appeal. The Supreme Court of that state said of it: "To go further than in that case would be error." Dunnaway v. Stone Webster Engineering Corp.,227 Mo. App. 1211, 61 S.W.2d 398, 400. South Carolina held it "inapplicable" to the case at bar in Pate v. Plymouth Mfg. Co.,198 S.C. 159, 17 S.E.2d 146, which was the case of an employee injured coming from a ball game partly financed by the employer. And Colorado not quite so polite as the southern court said: "The reasoning of the Conklin Case is far from convincing, but, assuming otherwise, the diversity of facts makes it inapplicable." Industrial Commission of Colorado v. Murphy,102 Colo. 59, 76 P.2d 741, 742, 115 A.L.R. 990.
The New Jersey court said the Conklin case is limited to its own facts, and then holds that even where recreational facilities are provided by the employer an injury received by an employee in an impromptu ball game during the lunch hour is not compensable as it did not arise out of the employment. *Page 504 Theberge v. Public Service Elec. Gas Co., 51 A.2d 248, 25 N.J. Misc. 149.
The Workmen's Compensation Act provides that it shall be liberally construed. But this does not permit the court to disregard the plain provisions of the Act. Davis v. Industrial Accident Board, 92 Mont. 503, 15 P.2d 919. And as the court recently said, "the requirement of liberal construction of the Act does not mean that it should be construed in each individual case so as to favor a claimant regardless of the effect of the decision upon the Act as a whole or upon its application to future cases. It means that it should be construed in such a way as to give proper effect to the general legislative purposes of the Act as a whole." Hendy v. Industrial Accident Board,115 Mont. 516, 146 P.2d 324, 325.
"Aye, there's the rub," "the effect of the decision * * * upon its application to future cases," or as expressed by Portia, "'Twill be recorded for a precedent and many an error by the same example will rush into the state."
The Act is the measure of the power of the industrial accident board to award compensation. It is the measure of the power of the court in a review of the board's award. In administering the Act, the board can only award compensation to an employee for injuries received in an industrial accident "arising out of and in the course of his employment." The court can only sustain an award for such an injury. Injuries that arise in some activity outside the employment, or occur not in the course of his employment, may not be compensated. The Act is not an insurance law.
The fact that the game was played and injury received during the lunch period, and the employee was subject to call to duty as truck driver during that period, if an emergency had arisen to require it, is of no importance one way or the other. He was not called to duty. And if it be conceded that "they also serve who only stand and wait," it appears that respondent did not "stand and wait" but left his service and departed from his employment to voluntarily play a game *Page 505 that was no part of his employment and therein suffered the distressing and regrettable injury, an injury that appeals powerfully to man's natural sympathy and sorrow for one so unfortunate. But such sympathy and compassion is not permitted to influence those who must administer the law, nor permit those who interpert it to disregard both the letter and the spirit of the Act.
Further, the "period of employment" is not synonymous with the "course of employment." Potter v. Realty Trust Co., 60 Idaho 281,90 P.2d 699, 702; Pacific Tel. Tel. Co. v. White, 9 Cir.,104 F.2d 923. Whether the game was played during the period of employment, or during the period of intermission from employment, or after the employment had entirely ceased, is beside the point. Unless the playing of the game was a duty of his employment, or an act incidental thereto, the injury received in playing it did not "arise out of" and it was not received "in the course of" his employment.
There are some cases that hold that where an employer, for purposes of advertising his business and creating good will, or to render in certain kinds of employment his employees more fit, encourages and aids athletic contests and games, the same become an incident to and therefore a part of the employment. Such is the case of Le Bar v. Ewald Bros. Dairy, 27 Minn. 16,13 N.W.2d 729, 730, cited in the concurring opinion herein. There the Ewald Brothers, a partnership, running a large dairy, had encouraged a team for the playing of softball in which the claimant was injured; the firm also encouraged and aided baseball teams, bowling teams and others, expending as high as $1,000 a year encouraging and assisting such games. The firm furnished balls, bats and other equipment, including shirts with the name "Ewald" in large letters on the back, to the softball team on which claimant played and in which he was injured, and paid a $15 entrance fee for the team to play on the city park grounds. The court in that case in considering whether the injury arose out of and in the *Page 506 course of the employment, said: "This could only occur if the game then being played was incident to and a part of the partnership's business." It held that it was such as an advertising feature of its business.
Likewise, in the case of Holst v. New York Stock Exchange, also cited in the concurring opinion herein, the record disclosed that the employer received the receipts of the games played, and paid the deficit if such occurred. The employer aided and encouraged games of baseball, soccer and other games for advertising or health purposes, and the court said [252 A.D. 233,299 N.Y.S. 256]: "The maintenance of the teams was a matter of business, not of charity or benevolence."
In the Utah case also cited, Salt Lake City v. Industrial Commission, 104 Utah 436, 140 P.2d 644, a city fireman was injured in playing handball while on duty. The opinion in that case states that the employer city provided a handball court for playing the game and encouraged the firemen to play the game as a part of their required exercise to render them fit for duty, and it was held that the game was thus an incident to and a part of the fireman's employment.
In the Saratoga Springs Commission case, also cited, the locker boys were given specific permission to use the swimming pool. The Saratoga Springs Commission case cites Puisinski v. Transit Valley Country Club to support its decision, but an examination of that case, which is also cited in support of the decision here, shows the "claimant and other caddies were encouraged to play * * * not only for their own amusement but because the practice tended to make them more efficient caddies, and that under a rule of the employer they were then under the rule and supervision of the caddy master." [283 N.Y. 674,28 N.E.2d 401.] This made the practice a part of their employment.
The teachers' association meeting where the teacher fell and broke her leg (Dearing v. Union Free School District No. *Page 507 1.), was an incident and part of her employment as a teacher. It is not necessary to further analyze the cited cases.
An examination of all cases involving injury to an employee while playing a game, discloses that none of them except the case of Thomas v. Proctor Gamble Mfg. Co., supra, hold the injury to be compensable unless the game has been so encouraged and aided by the employer as to become an incident to and a part of his employment.
I cannot see that an injury received in a game played in the brief time available from a half hour lunch time, not sponsored or encouraged by the employer, unknown to it, except from the knowledge imputed to it, if it was imputed, by the knowledge of a garage foreman, a game which respondent said was no part of his employment, can be said to arise out of and in the course of respondent's employment as a truck driver.
The judgment of the district court should be reversed.