This action was commenced in this court on the 9th day of August, 1919, for the purpose of reviewing a decision of the. State Industrial Commission rendered on the 14th day of July, 1919, wherein the petitioner was denied compensation under the Workmen's Compensation Act (chapter 246, Session Laws 1915).
The findings of the commission were as follows:
"The facts in this case agreed upon are as follows: It is agreed between the claimant and respondent, Alko Nak Coal Mining Company and Coal Operator's Exchange, that on the 18th day of February, 1919, the employes of the Alko Nak Coal Mining Company had been accustomed, during the hours of their service, when not actually engaged in their work, to stand by a fire that was kept on the premises, with the knowledge and acquiescence of the company, for the purpose of providing a place where they could be comfortable while not actually engaged at work, and such fire was had with the permission of the company.
"The facts further show that claimant and three other workmen on February 18, 1919, were warming by the fire at an interval in their work and were not actually working at that particular time, but were on the payroll and their time was going on. A fellow employe came along where they were warming around the fire and threw a piece of split dynamite in the fire. When the dynamite was thrown into the fire the fellow servants, after being warned, all ran away, except claimant, who had his shoe off trimming a corn. Claimant saw an old piece of dynamite, but not the cap. The fire was on the premises of the company where claimant was working. Claimant's daily wage was $5.40."
After the foregoing findings of fact, the commission made the following order, to wit:
"Now on this July 14th, 1919, this cause coming on to be heard in its regular order pursuant to a hearing held in Henryetta on June 12th, 1919, at which hearing the claimant was present in person and by his attorney, E.W. Smith of Henryetta, and respondent and insurance carrier, by their attorneys, *Page 217 Hummer and Foster of Henryetta, and the commission after examining the testimony, briefs of counsel, filed in the case, and being otherwise well and sufficiently advised in the premises, finds that the injury complained of did not arise out of and in the course of his employment with respondent, and that compensation should be denied.
"It Is Ordered: That compensation in the above claim be denied."
The commission further finds:
"That the injury did not arise out of and in the course of his employment, and that compensation should be denied."
Petitioner makes the following assignments of error:
"(1) That the commission erred in holding that the injury complained of did not arise out of and in the course of the employment of the petitioner.
"(2) That said award or decision is contrary to law.
"(3) That said award or decision is not supported by the evidence and is contrary to the evidence."
And then states in his brief as follows:
"While there are three assignments of error in the petition filed herein by the petitioner, it is our purpose to treat them all under the first assignment, which fairly covers the entire objection to the ruling of the commission.
"(1) That the commission erred in holding that the injury complained of did not arise out of and in the course of the employment of the petitioner."
It is provided by section 1, art. 2, of the Workmen's Compensation Act (chapter 246, Session Laws 1915) that:
"Every employer subject to the provisions of this act shall pay or provide as required by this act, compensation according to the schedules of this article for the disability of his employe, resulting from an accidental personal injury sustained by the employe 'arising out of and in the course of his employment,' without regard to fault as a cause of such injury, except where the injury is occasioned by the willful intention of the injured employe to bring about the injury of himself or another, or where the injury results directly from the willful failure of the injured employe to use a guard or protection against accident furnished for his use pursuant to any statute or order of the State Labor Commissioner, or results directly from the intoxication of the injured employe while on duty."
It is also provided by section 11, art. 2, of the Workmen's Compensation Act (chapter 246, Session Laws 1915) that:
"In any proceeding for the enforcement of a claim under this act, it shall be presumed in the absence of substantial evidence to the contrary:
"(1) That the claim comes within the provisions of this act."
We agree with counsel for respondents that the words "arising out of" and "in the course of employment" are conjunctive, and relief can be had under the act only when the accident arose both "out of" and "in the course of" employment.
From the facts found by the commission — that the petitioner, "during an interval in his work, was warming himself by a fire on the premises of the employer, and was injured by the explosion of a piece of dynamite containing a cap, brought there and thrown into the fire by a fellow employe who picked up the dynamite and threw it into the fire to see if it would explode," upon the facts thus found the commission concludes, as a matter of law, "the injury received by the employe did not arise out of and in the course of his employment under the Workmen's Compensation law."
Counsel for the respondents say in their brief:
"We shall brief this case under the following proposition of law: The injury to the petitioner, as set forth in the above statement of facts, was not an accidental injury sustained by the employe arising out of and in the course of his employment.
"The petitioner urges in his brief that, since it was not shown that he was intoxicated, or failed to use any safeguard provided for his safety, or that he brought his injury about willfully, the respondents are liable to him for compensation, as he was where he had a right to be. Of course, if this were a true statement of the law, there would be no defense to this case, for it is not contended by the respondents that the petitioner was not in the employ of the company or that he was in a place where he had no right to be, but it is sufficient, under the many decisions of the various Supreme Courts and commissions construing the provision 'out of and in the course of employment,' that the injury be received while the employe was working for his employer. This is probably sufficient to warrant the statement that the injury was received while in the course of his employment, but does not come within the provision, 'arising out of the employment' It is held by practically all of the decisions that the words 'arising out of' and 'in the course of employment are conjunctive, and relief can be had under the act only when the accident arose both 'out of' and 'in the course of' employment. The injury must be received (1) while the workman is doing the duty he is employed to perform; and also (2) as a natural incident of the work. It must be one of the risks connected with the employment, *Page 218 flowing therefrom as a natural consequence, and directly connected with the work."
These clear statements by counsel for respondents of their position very greatly simplify the case; it being admitted that the petitioner was an employe of the company and that he was in a place where he had a right to be and that the injury was received while in the course of his employment, leaves the only question to be determined, Did his injuries come within the provision, "arising out of the employment"?
In Honnold on Workmen's Compensation, vol. 1, sec. 101, in discussing the question here involved, it is said:
"According to the usual language of the acts, to warrant recovery of compensation for the injury or death of a workman, the injury must be one arising out of and in the course of' his employment. This phrase is used in the same sense in the acts of England and of many of the states, and, though its literary construction is well settled, its application to particular cases has given rise to differences of opinion not easily harmonized. Attempts of the courts to formulate general rules relative to the distinction between the terms 'out of' and 'in the course of' have not been enfirely successful. All agree, however, that the terms are not intended to be synonymous. An injury may be received in the course of employment, and still have no causal connection with it, so that it can be said to arise out of the employment. But it is difficult, if not impossible, to conceive of an injury arising out of and not also in the course of the employment. The importance of distinguishing between these terms arises from the fact that each represents an element essential to, but not authorizing recovery of compensation without the presence of the element represented by the other. In other words, even though the injury occurred 'in the course of' the employment, if it did not arise 'out of the employment' there can be no recovery. Yet, in the words of an English jurist: 'If you find that the accident arose in the course of the employment, you may have gone a certain way towards finding that it arose out of the employment, but you have not gone the whole way.' The words 'out of' point to the origin and cause of the accident or injury, the words 'in the course of' to the time, place and circumstances under which the accident or injury takes place. The former words are descriptive of the character or quality of the accident; the latter words relate to the circumstances under which an accident of that character or quality takes place. The character or quality of the accident as conveyed by the words 'out of' involves the idea that the accident is in some sense due to the employment. It must result from a risk reasonably incident to the employment."
If it be as stated in the text quoted supra, that "the words 'out of' point to the origin and cause of the accident or injury," and the commission having found that the injury was caused by a fellow employe, and it being admitted that the petitioner was an employe and was where he had a right to be, it seems to us that it necessarily follows that the accident was due to the employment and resulted from a risk reasonably incident to the employment.
The author cites in support of the text the decisions of the cases of Bryant v. Fissell, 84 N.J. Law, 72, 86 A. 458; Buckley, L. J., in Fitzgerald v. Clark Son, 2 K. B. 796; Hulley v. Moosbrugger, 87 N.J. Law, 103, 93 A. 79; Zabriskie v. Erie R. Co., 85 N.J. Law, 157, 88 A. 824; Terlecki v. Strauss, 85 N.J. Law, 454, 89 A. 1023; Armitage v. Lancashire Yorkshire R. Co., 2 K. B. 178; Collins v. Collins, 2 I. R. 104; Murphy v. Berwick, Ir. I. T. R. 126; Blake v. Head, 106 L. T. R. 822. In the case of Scott v. Payne Bros., 85 N.J. Law, 446, 89 A. 927, it was said:
"An injury arises out of and in the course of employment where at the time and place of its occurrence the workman is doing what he might reasonably then do."
To the same effect was the holding of the Supreme Court of Kansas in the cases of Thomas v. Proctor Gamble Mfg. Co., 179 P. 372; N.W. Iron Co. v. Industrial Commission et al. 152 N.W. 416; Writing-Mead Commercial Co. v. Indus. Accident Com. (Cal.) 173 P. 1105. This court, in the case of Wick et al. v. Gunn et al., 66 Oklahoma, 169 P. 1087, in an opinion by Stewart, C., said in paragraph 1 of the syllabus thereof:
"The Workmen's Compensation Act of this state (Laws 1915, chapter 246) must be construed as a whole, and all presumptions indulged will be in favor of those for whose protection the statutory compensation was fixed, and, who, by the terms of the act, are deprived of the ordinary remedies open to others whose rights are invaded."
Such was the holding of this court in the case of Adams v. Iten Biscuit Co., 63 Oklahoma, 162 P. 938.
We think the correct rule is, and so hold in these cases, that if a workman is an active participant in what has been denominated "horse-play," he is not entitled to compensation, but if, while going about his duties he is a victim of another's prank, to which he is not in the least a party, he should not be denied compensation. 53 Am. Law Rev., p. 75.
We are of the opinion that the conclusion reached by the commission was erroneous, and the cause is therefore reversed and remanded, with directions to proceed in accordance with the views herein expressed. *Page 219
OWEM, C. J., and KANE, RAINEY, and McNEILL, JJ., concur. PITCHFORD, HIGGINS, and BAILEY, JJ., dissent in an opinion by HIGGINS, J.
Dissenting Opinion Filed April 20, 1920.