dissenting:
It is well settled under our Workmen’s Compensation Act that a claimant under the act must prove by direct and positive evidence or by evidence from which the inference can be fairly and reasonably drawn that the accidental injury of which complaint is made arose out of and in the course of the injured person’s employment. (Le Tourneau, Inc. v. Industrial Com. 396 Ill. 435; Jolly v. Industrial Com. 341 Ill. 46; Standard Oil Co. v. Industrial Com. 339 Ill. 252.) There being no direct and positive evidence that the accident arose out of and in the course of employment, it is necessary to consider the evidence to determine whether such an inference can be fairly drawn therefrom. The burden rests upon the claimant to furnish evidence from which the inference can be logically drawn that the injury arose out of and in the course of his employment. Ohio Building Safety Vault Co. v. Industrial Board, 277 Ill. 96.
There are, of course, many instances where recreation may be so bound up with employment that a resulting injury will be deemed one arising out of and in course of such employment. In such cases there must be evidence that the activitiy in which the particular employee had engaged not only was encouraged by the employer, not only was directly aimed at promoting the employee’s skill in the discharge of the very duties of employment, but was of unquestioned “benefit” to the employer. On the same footing, too, stand those cases wherein the employer requires the employee to participate in the recreational activity or subsidizes it in order to derive for himself a financial return or some substantial beneficial publicity.
In the instant case the record makes plain that the ball games were out of hours, off the premises, and personal diversions of the men, and were not only optional with the employees but were exclusively for their own recreation and indulgence, without resultant business advantage to the employer. The games were neither initiated nor sponsored by the employer, were in no way connected with the employer’s affairs, and in no manner subject to its control. Even if the employer had so desired it could not have halted the ball playing or changed the program in any way. In other words, totally lacking is any basis for an inference that it controlled the activity or sought to compel or induce any employee to participate in it. On the contrary, indication almost positive that the activity was separate and removed from the employment is found in the fact that the employer objected to and discouraged intracompany teams from joining the Industrial Soft Ball League and would not provide funds or other assistance for participation in such a league.
Neither the circumstances that the management gave its permission to employees to take part in the sport, nor even that it cooperated in the program, can be said to spell out compulsion or restraint, and no evidence on that score is supplied by a meat cutter in one store remarking to a stock clerk of another store, “Don’t you want to play any more? Haven’t you any spirit ?”
The record, we believe, is lacking in any material showing of direct advertising benefits to defendant via the soft ball games. The name “Jewel Food Stores” appeared on the back of the T-shirts. However, it appears from the testimony that while such T-shirts were furnished by defendant, the players were not required to wear them; many of the players furnished their own without the company emblem thereon and one team raised enough money by the efforts of its members to outfit themselves with complete uniforms which did not carry the company insignia. No expense for providing equipment or materials for soft ball teams was chargeable to the sales or advertising department of the defendant; there were no facilities provided for the public to witness the games other than provided for any sand lot game; the public was not given any notice of games or even the so-called championship game; the information about the games, Jewel News Flashes, etc., was only to the internal organization; and information as to the time and place of playing of games was given over the radio in the stores on the morning the games were to be played during a period from 8:4s to 9 :oo A.M. when the stores were not open to the public, and included other news of interest only to employees, such as birthdays, weddings, anniversaries, social events and news requested by the union for eniployees. The weekly and monthly publications distributed to the employees had the same general format as the internal radio program. Thus, we look in vain for evidence of any business advantage or benefit occurring to defendant from the employees’ participation in the contests. Too tenuous and ephemeral is the possibility that such participation might perhaps indirectly benefit the employer by improving the employees’ morale or health or by fostering employee good will.
Personal activities of employees, unrelated to the employment, remote from the place of work and its risk, not compelled or controlled by the employer, yielding it neither advantage nor benefit are not within the compass of the Workmen’s Compensation Act. Nor is it of any operative consequence that the employer acquiesced in or contributed some financial aid to such activity. As mentioned in the majority opinion herein “the slight support thus given by the employer without attendant advertising or consequent business advantage, should be accepted for what it really was, a gratuitous contribution to its employees’ social and recreational life.”
In the case such as the one before us, the granting of a compensation award not only does violence to the letter of the statute but offends against its. spirit by penalizing employers, who, without prospect of profit or benefit, cooperate in enabling their employees to engage in social or athletic recreation on their own time and away from the company premises. As the court said in Industrial Commission v. Murphy, 102 Colo. 62, 76 Pac. 2d 742, 115 A.L.R. 990, “It may be regrettable that this young man cannot be compensated under the terms of the act, but its provisions must not be pushed beyond the limits of their purpose, nor its funds diverted to those not clearly entitled thereto and the object of their creation thus frustrated. Kindness to one may well be cruelty to many. Allowance of this claim could but serve as a warning to employers that they may concern themselves with the social life and recreation of their men, or permit their officers to do so or contribute to efforts to lighten life, only under penalty of liability for every accident and injury arising from such activities, however remote from the employment itself.”
It is my opinion that the evidence submitted by claimant is not such that an inference can be logically drawn therefrom that the injury arose out of and in the course of his employment. Permitting claimant to recover upon the record of this case is to predicate such recovery upon subtle inferences, conjectures and speculations contrary to the weight of the evidence and in contravention of principles of law long established by many prior decisions of this court.
I am compelled to the conclusion that claimant, as a matter of law, did not establish that the injuries sustained while playing soft ball, after his hours of employment and off his employer’s premises where the duties of his employment were performed, and in a public park or playground, voluntarily and for which he was not hired and was not paid, arose out of and in the course of his employment within the provisions of the Workmen’s Compensation Act.