Claim of Burns v. Merritt Engineering Co.

Dye, J.

The sole question posed on this appeal is whether the claimant’s disability for which he has been awarded workmen’s compensation benefits' arose out of his employment, *133there being no question that the incident giving rise to the injury occurred on the employer’s premises during working hours.

The facts are these: At five minutes before quitting time on Saturday, October 13, 1947, and before he had checked out, the claimant, a machinist employed in the machine department of the employer’s plywood factory, went to the electrical department for the purpose of getting an automobile ride to his home with one Fothergill, a friend and coemployee. This was a common practice known to the employer. During the conversation Fothergill offered claimant a drink from a bottle containing a clear liquid and labeled “ Barclay’s Gin ”, The claimant, after satisfying himself that the department’s “ straw boss ” who was changing his clothes nearby was not watching, took the bottle, stepped behind a large noisy electrical machine designated as a “ DC converter ” where he would be concealed from view, unscrewed the cork and drank. The bottle contained not gin as he expected, but carbon tetrachloride, a fact known to Fothergill but deliberately withheld from claimant. Fothergill had obtained the liquid with the employer’s permission from the company’s supply room for his personal use. Later, while claimant was riding home with Fothergill, he became violently ill. The poisonous liquid did severe damage to his internal organs, resulting in the disability complained of.

Claimant at the time was a member of a labor union, the United States Steel Workers of America, which, in acting as bargaining agent, had negotiated a contract with the employer which read in part, viz.: “ possession of or drinking liquor or any alcoholic beverage on company property at any time * * * is forbidden and shall constitute a just cause for immediate dismissal.”

The testimony is conflicting as to whether the claimant knew about this rule prior to the accident — the employer adducing testimony that each employee had a copy of the contract and that it was accepted and obeyed by the employees, and that it knew of no violation — whereas the claimant would only admit that he learned about the rule at the hearing. Whether or not he knew about such rule prior to the accident is not determinative of the issue here, which is not whether his act, under the rule warranted dismissal, but whether he should be denied com*134pensation because his injuries did not arise out of his employment. In other words, did his conduct under the circumstances amount to an abandonment of his employment as a matter of law?

It is well established that disregard of the precise terms of employment does not necessarily constitute an abandonment thereof (cf. Matter of O’Bryan v. Town of Jewett, 296 N. Y. 785; Matter of Dann v. Town of Veteran, 278 N. Y. 461), nor does violation of a rule not promulgated but which under the circumstances might reasonably be implied, bar compensation benefits (Matter of Lang v. Franklin Ry. Supply Co., 272 App. Div. 988, motion for leave to appeal denied 297 N. Y. 1036; Matter of Currivan v. Friesler Realty Co., 273 App. Div. 834, motion for leave to appeal denied 297 N. Y. 1033). Viewed in the light of these authorities, a violation — if such there was — of the no-drinking rule under penalty of dismissal, may and should not be treated any differently for purposes of compensation than the violation of any other rule designed to improve plant efficiency and to safeguard employees (cf. Matter of Chila v. New York Central R. R. Co., 251 App. Div. 575, affd. 275 N. Y. 585; Matter of Brenchley v. International Heater Co., 227 App. Div. 831, affd. 254 N. Y. 536; Matter of Fox v. Truslow & Fulle, Inc., 204 App. Div. 584, affd. 236 N. Y. 634).

Here the board has found as a fact, from all the surrounding circumstances, that the injuries arose out of the claimant’s employment. The contention of the employer and its insurance carrier that the employee by breaking the no-drinking rule forfeits compensation must be rejected, and he may not be penalized for an intention to do so because he drank from a bottle labeled gin in an expectation that it contained gin. When he unwittingly drank carbon tetrachloride knowingly handed to him by a coemployee — who had it with the employer’s permission— he was not injured because he violated a rule of the plant, but, on the contrary, because he was the innocent victim of a cruel and senseless joke. WTien so viewed the employer is not to be exonerated from the consequences of such an act under a theory that it constituted an abandonment of employment but, rather, he may be held under the theory that the-injurious act fell naturally into that category of conduct known to the law as ‘ horseplay ’ ’. To be victimized by a prank *135perpetrated by a coemployee has long been recognized as an incident of employment, as something reasonably to be expected, a peril of service; an indulgence 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 everyone who employs labor (Matter of Leonbruno v. Champlain Silk Mills, 229 N. Y. 470; Thom v. Sinclair, [1917] A. C. 127; Matter of Redner v. Faber & Son, 223 N. Y. 379) and an employee so injured will be allowed compensation benefits if the board is satisfied that the acts were incidental to the employment (Matter of Industrial Comr. [Siguin] v. McCarthy, 295 N. Y. 443; Matter of Lang v. Franklin Ry. Supply Co., supra; Matter of Chanin v. Western Union Tel. Co., 271 App. Div. 763; cf. Matter of Gaurin v. Bagley & Sewall Co., 298 N. Y. 511). But when the board is not so satisfied, compensation will be denied (Matter of Gaurin v. Bagley & Sewall Co., supra; Matter of Ognibene v. Rochester Mfg. Co., 298 N. Y. 85). These general principles are equally available here, particularly as it is quite apparent from the evidence that the claimant, although collaborating or participating in the event, was not the instigator thereof but was its innocent victim.

Perhaps it would be well to say also that an award in horseplay cases should not depend on evidence of foreseeability. It is an important element (Matter of McCarthy v. Remington Rand, Inc., 300 N. Y. 715), but not necessarily conclusive. To introduce such an arbitrary and anomalous rule hardly seems consonant with the liberal policy incident to the administration of the statute. The test is whether the injurious horseplay may reasonably be regarded as an incident of the employment (Matter of Leonbruno v. Champlain Silk Mills, supra) — rather than the foreseeability of a particular prank — that supports the finding of fact that it arose out of the employment.

Furthermore, the claimant here is in very much the same position as the victim of an unprovoked assault — malicious or friendly — and the principles pertaining thereto are equally pertinent here (Matter of Levy v. World-Telegram Corp., 259 App. Div. 943, affd. 285 N. Y. 533; Matter of Sewell v. Johnson Auto Body Shop, 274 App. Div. 957, motion for leave to appeal denied 298 N. Y. 937; Matter of Humphrey v. Tietjen & Steffin Milk Co., 235 App. Div. 470, affd. 261 N. Y. 549; Matter of *136Verschleiser v. Stern & Son, 229 N. Y. 192; Matter of Chanin v. Western Union Tel. Co., supra; Hartford Accident & Ind. Co. v. Cardillo, 112 F. 2d 11, certiorari denied 310 U. S. 649).

The order appealed from should be affirmed, with costs.