Kenneth Geary was one of 24 to 30 drivers employed on the day shift by the Anaconda Copper Mining Company in the *Page 491 garage department of its reduction works located at some distance from Anaconda, Montana. The hours of employment of the drivers were from 7:30 o'clock a.m. to 4 o'clock p.m. with a half hour for lunch. The general lunch time for all the workmen at the company's plant was from 12 o'clock noon to 12:30 o'clock p.m.
The operation of all the company's trucks and ambulances was directed by Joe Sladick, foreman of the garage department, who was stationed at the garage. It was his duty to take all the calls for truck delivery; to dispatch the various drivers to the different departments all over the plant as well as to send them to the various properties of the company outside and beyond the plant; to take ambulance calls and emergency calls of all kinds and to order the drivers where their services were needed. Should an employee become injured at the plant the orders were to first notify the emergency hospital, the head nurse then calls the garage foreman who assigns a driver to operate the ambulance which he sends to pick up the injured workman.
The drivers were required to report at the garage at the beginning of their shift in the morning. There they obtained their trucks and from there they proceeded to their respective assignments. Upon completion of their assigned tasks the drivers were required to return their trucks to the garage. When working about the plant the drivers were required to return to and remain at the garage for the lunch period. At all times from 7:30 o'clock a.m. to 4 o'clock p.m., including the lunch period, the drivers in the course of their employment were required to hold themselves in readiness to respond to calls, emergency or otherwise.
The foreman testified:
"Q. As foreman of the Anaconda Copper Mining Company garage * * * what are your duties? A. I take all the smelter calls for the truck delivery and send the men to the different departments all over the hill, over their outside *Page 492 properties and ambulance calls and emergency calls, of all kinds.
"Q. Do all of the trucks that are operated by the Anaconda Copper Mining Company at the Anaconda plant operate under your control? A. Yes sir.
"Q. What is the rule generally about where the men, by the men I mean the truck drivers under your supervision, eat their lunch? A. Right in the garage.
"Q. It is necessary that they eat there? A. Yes, they get all their calls from that department. The trucks all come to that place and if a call comes there they have to be there.
"Q. If it were necessary for the plant to use the ambulance, how would the department get the use of same? A. If a man gets hurt at the smelter he puts the call in at the emergency hospital and they call the garage, the head nurse at the smelter."
The foreman further testified that while he had a special driver for the ambulance, yet any driver might be assigned to such duty in the absence of the regular driver. On a number of occasions Kenneth Geary was the driver so selected by the foreman to perform such duty.
On August 24, 1944, Kenneth Geary was assigned to drive the lumber yard truck. This task he finished about twenty-five minutes before 12 o'clock noon, whereupon he returned to the garage as was his duty. There he ate his lunch and then joined three other drivers in a game of handball being played in the company's garage where he received the injury which resulted in the loss of the eye.
At the time Geary received his injury he was at the garage, — headquarters for all the drivers, — the place on his employer's premises where he was then required to be. At the time he was struck in the eye he was subject to instant call and to immediate assignment to duty. He was where his foreman could reach him at any time. He was where he could promptly respond to any assignment that might have been given him. He was on duty subject to call and doing everything that *Page 493 his employment then required him to do. While it was his lunch hour, yet his employment did not require him to spend every minute of this time in eating. As a matter of fact his employment did not require him to eat at all. He could eat or he could refrain from eating as the spirit moved him. Nor did his employment require that he do or refrain from doing any of the numerous things which a workman may reasonably do within the time allowed him for lunch. It would appear that so long as the drivers remained at the garage subject to call, what they there did to occupy their time was pretty much up to the choice of each driver individually so long as he complied with the regulations prescribed by his employer. He was not permitted to play cards or to gamble as such were forbidden by the employer. There is nothing in the record, however, to show that the employer had any other regulations respecting what the drivers should do or refrain from doing during the lunch hour. Thus, since the employer registered no objections thereto, it would appear, by implication at least, that during the lunch hour and until the 12:30 o'clock p.m. whistle the drivers were permitted to eat or to drink or to smoke or to rest or to nap or to relax by engaging in chess, checkers, dominoes, pitching horseshoes, or playing "catch" or handball.
Thus, since at the time he was injured the driver was doing what a man so employed may reasonably do at the time and place where he then was and where he was then required to be, his injury must be said to have been received in the course of his employment. Landeen v. Toole County Refining Co., infra. The Industrial Accident Board so found and such finding is reasonably supported by the evidence in the record before us.
In Le Bar v. Ewald Bros. Dairy, 217 Minn. 16,13 N.W.2d 729, an employee of a dairy partnership was injured while voluntarily playing a game of softball after his regular hours of work. The employers never required their employees to play on the team or to attend practice games. The playing *Page 494 was wholly voluntary on the part of each player. The employers had not ordered the player to be where the game was played and the player knew he lost no wages, nor did he endanger his position as an employee by not participating in the game. The employers merely encouraged their employees to play by furnishing them equipment and by giving the team a banquet at some cafe at the end of the season. It was held that the injury received by the player arose out of and in the course of his employment and that it was compensable.
In Salt Lake City v. Industrial Commission, 104 Utah 436,140 P.2d 644, an injury sustained by a city fireman in playing handball while on duty was held to have been received in the course of his employment and compensable.
In Dowen v. Saratoga Springs Commission, 267 A.D. 928,46 N.Y.S.2d 822, a locker boy, permitted to use a swimming pool maintained by the employer on the premises, was held entitled to compensation for an injury received when using the pool during recreation hours.
In Fagan v. Albany Evening Union Co., 261 A.D. 861,24 N.Y.S.2d 779, the death of a newspaper boy while attending a picnic was held compensable.
In Holst v. New York Stock Exchange, 252 A.D. 233,299 N YS. 255, a page boy employed by the New York Stock Exchange recovered compensation for an injury received while playing on a soccer team maintained by the Exchange.
In Piusinski v. Transit Valley Country Club, 259 A.D. 765,18 N.Y.S.2d 316, affirmed in 283 N.Y. 674,28 N.E.2d 401, a golf caddy sustained an injury while engaged in a practice game with other caddies. His injury was held compensable even though he was not required to play.
In Kenney v. Lord Taylor, 254 N.Y. 532, 173 N.E. 853, an employee dancing after a dinner given by her employer to the employees of a store was held entitled to compensation.
In Dearing v. Union Free School District No. 1, 272 A.D. 167,70 N.Y.S.2d 418, a teacher who fell and broke *Page 495 her leg while attending a meeting of the teachers' association in the auditorium in one of the school buildings was held entitled to compensation.
In Scott v. Whitehouse Co., 255 A.D. 733, 6 N.Y.S.2d 916, a salesman who was injured between 4 and 5 o'clock in the morning while returning from his employer's party was held entitled to compensation.
An injury befalls a workman in the course of his employment "if it occurs while the employe is doing what a man so employed may reasonably do within a time during which he is employed, and at a place he may reasonably be during that time." Landeen v. Toole County Refining Co., 85 Mont. 41, 54, 277 P. 615, 620.
It must constantly be kept in mind that the provisions of the Workmen's Compensation Law are to be liberally construed to the end that the beneficent features thereof shall not be lost to injured workmen and where the provisions are susceptible of an interpretation either beneficial or detrimental to an injured employee, they must be construed favorably to the employee. Thus most courts have been liberal in protecting workmen during the noon hour. A worker eating lunch on the employer's premises is almost universally considered as "in the course of" the employment. DeStefano v. Alpha Lunch Co., 1941, 308 Mass. 38,30 N.E.2d 827; Blanche Charon's Case, 1947, 321 Mass. 694,75 N.E.2d 511.
In Holmes' Case, 267 Mass. 307, 166 N.E. 827, injuries received by a workman during the noon hour while taking a short nap awaiting the resumption of his machine work were held compensable. In Cranney's Case, 232 Mass. 149, 122 N.E. 266, 15 A.L.R. 584, compensation was allowed where a manager, while eating, was shot by a disgruntled recently fired employee.
Compensation has been allowed for injuries received: (1) while warming tea on a boiler for lunch, Etherton v. Johnstown Knitting Mills Co., 184 A.D. 820, 172 N.Y.S. 724; (2) while taking a shower, Sexton v. Public Service Commission, *Page 496 180 A.D. 111, 167 N.Y.S. 493; (3) while on an errand for the employer during the lunch period, Schwimmer v. Kammerman Kaminsky, 262 N.Y. 104, 186 N.E. 409, and (4) where a worker lost an arm when he went out of his way to ask a fellow employee for a chew of tobacco, Wickham v. Glenside Woolen Mills, 252 N.Y. 11,168 N.E. 446.
In Lovallo v. American Brass Co., 112 Conn. 635, 153 A. 783,784, a workman's oily apron became ignited as he was lighting his pipe on the employer's premises during the meal hour and from the burns so received he died. This was held "incidental to the deceased's employment" so long as smoking was not forbidden. See Mack v. Branch No. 12, Post Exchange, 1945, 207 S.C. 258,35 S.E.2d 838.
In the case before us the employing company knew by the only means an artificial person can gain knowledge that for three months previous its drivers had been playing handball during the noon hour in the company's garage. Had the company not approved the practice it could have prohibited it as was done respecting gambling and the playing of cards. But handball was not forbidden. Under such circumstances, that which Kenneth Geary was doing in his employer's garage when he lost his eye was incidental to his employment and the injury so received is compensable. See Landeen v. Toole County Refining Co., supra; Souza's Case, 316 Mass. 332, 55 N.E.2d 611; Sullivan's Case,265 Mass. 463, 164 N.E. 392; Employers' Liability Assur. Corp. v. Industrial Accident Commission, 37 Cal. App. 2d 567, 99 P.2d 1089, and cases cited above.