A decision of the Workmen's Compensation Board in claimant's favor has been affirmed — two justices dissenting — by the Appellate Division. The simple, yet at times abstruse, question for our determination is whether claimant suffered an injury "arising out of and in the course of" his employment (Workmen's Compensation Law, § 10).
Rochester Manufacturing Company is engaged in the manufacture of pressure and liquid level indicators and thermometers. Claimant, thirty-eight years old, was one of its stockroom clerks. While at work on a day in January, 1946, he playfully threw a small piece of rubber tubing at a fellow-employee who was busy typewriting and then, to escape detection and avoid being seen, ducked, bending low. In so doing, he struck his nose on the handle of a hand truck and sustained rather serious lacerations, which culminated in a permanent facial disfigurement. *Page 87
Liberally though the Workmen's Compensation Law is to be construed (§ 21), the courts must give heed to its provisions that the injury arise not only "in the course of" but also "out of" the employment. Thus, an employee who initiates or instigates a particular bit of horseplay — constituting a purposeful interference with the person and having no sanction in ordinary conduct — is not entitled to the protection of the statute (see, e.g., Matter of Gaurin v. Bagley Sewall Co., 298 N.Y. 511, decided June 11, 1948; Matter of Frost v. Franklin Mfg. Co.,236 N.Y. 649, affg. 204 App. Div. 700; Matter of Stillwagon v.Callan Bros., 224 N.Y. 714, affg. 183 App. Div. 141), unless the prankish act has "long been part and parcel, an incident, of the employment." (Matter of Industrial Comr. [Siguin] v.McCarthy, 295 N.Y. 443, 446.) When recovery is allowed, it is upon the theory that the employee's conduct or activity, having been approved by "long-continuing custom and practice" (p. 447), becomes an incident of employment. Injury in such a case may fairly be regarded as "arising out of" that employment. As we clearly indicated in our opinion in the McCarthy case (supra), it is continuity of practice — conduct which has gained acceptance — that transforms an extra-employment caper into an incident of employment; injury occasioned to the prankster by an isolated bit of horseplay does not entitle the employee to the statute's benefits since it does not "arise out of" his employment. Different is the case of Matter ofLeonbruno v. Champlain Silk Mills (229 N.Y. 470), cited in the dissenting opinion. There, as the court took pains to point out, the claimant "did not participate in the horse-play, and had no knowledge of it till injured" (p. 471); in other words, he was not the initiator of the injury-producing prank.
Perhaps, at some future time, new legislation may render industry responsible for all injuries sustained by employees upon the employer's premises during working hours; but, as the statute now stands, an injury is not compensable unless it is one "arising out of" as well as "in the course of" the employment.
We cannot say on the record before us whether claimant's act — which resulted in his injury — was a single, isolated act or one of a series of similar incidents generally participated in, *Page 88 to the employer's knowledge, by employees, sufficient to regularize such conduct and stamp it as part and parcel of the employment. Accordingly, the matter should be remitted to the Workmen's Compensation Board so that further testimony may be taken on this subject.
The order of the Appellate Division and the award of the Workmen's Compensation Board should be reversed, with costs in this court and in the Appellate Division, and the claim remitted to the Workmen's Compensation Board for further proceedings not inconsistent with this opinion.