Claimant, in the course of his work for his employer, was walking through a storeroom when he playfully tossed a small piece of rubber at a girl working nearby. Claimant then suffered an injury when, ducking his head so that the girl would not see him, he hit his face on the handle of a truck belonging to the employer and standing in the storeroom. I cannot agree that the inconsequential, sportive act of claimant, in tossing the piece of rubber, was such a complete deviation from his employment that he is barred from receiving workmen's compensation even though he was on an errand for his employer at the time, was in the employer's place of business and received his injuries from a piece of equipment belonging to his employer. No decided case goes so far as to dismiss such a claim. The case which should be followed here, I think, is Matter of Miles v. Gibbs Hill,Inc. (225 App. Div. 839, affd. 250 N.Y. 590) where a railroad trackman seeing a torpedo on the rails, thoughtlessly hit the torpedo with his hammer, sustaining injuries for which he was allowed compensation. The cases where employees who engaged in horseplay or fighting were denied compensation, involved instances where the injured persons deliberately provoked fights or, in some other fashion, deliberately and substantially stepped out of their employments to engage in some activity unrelated to their work (see Matter of Gaurin v. Bagley Sewall Co.,298 N.Y. 511, decided June 11, 1948).
Nor can I agree that, to justify an award for injuries sustained from pranks or horseplay, it must be shown that the incident was one of a series, or pursuant to the custom in the particular place. The fact that such conduct is customary is one of the *Page 89 reasons given in some cases, such as Matter of Industrial Comr. (Siguin) v. McCarthy (295 N.Y. 443), for the fact findings that injured claimants were still in the course of employment when hurt. However, it has never before been held that such proof of custom or accepted conduct was essential in order to make an award valid in such cases. Numerous awards have been upheld where no such test was made or suggested. The courts (see Matter ofLeonbruno v. Champlain Silk Mills, 229 N.Y. 470, 472), without proof of the particular usages of any one factory or shop, realize, as does everyone else, that "a little nonsense now and then, is relished by the best of men". To say that this claimant, by this trifling act of foolery, stepped completely out of his role of workman and became an aggressor in an encounter during which he was hurt, would be to magnify unfairly what was a most insignificant antic.
The order should be affirmed, with costs.
LOUGHRAN, Ch. J., LEWIS and THACHER, JJ., concur with FULD, J.; DYE, J., concurs for reversal but votes to dismiss the claim; DESMOND, J., dissents in opinion; CONWAY, J., taking no part.
Order reversed, etc.