On Rehearing. Appellee challenges the soundness of the opinion not only as to the law in the case but also points out two instances in which he contends the statement of fact is erroneous. We quote from his brief:
"This statement is incorrect first in an unimportant part, in stating: 'This injury superinduced peritonitis causing death on the following day.' Death resulted nearly a month later, viz., July 8, 1942. * * *
"The second incorrect statement is that 'in a burst of resentment or anger Culbreath threw a piece of soap which he was *Page 574 using at Williams.' Culbreath said he was just playing, testifying in this respect that: 'From that, why, I pick up the bar of soap and threw at him, you know, just playing, running him away while I was washing.' "
The first error in the statement of fact appellee concedes to be immaterial. The second is not incorrect. The very act of Culbreath running Williams away while he (Culbreath) was washing and throwing the bar of soap at him showed a burst of resentment, although Culbreath may not have intended to injure Williams. This, however, is beside the point. The controlling fact, as shown by the undisputed evidence, is that both Williams and Culbreath had ended their day's work, punched the clock and, as expressed by one witness, "were on their own." Thereafter they were not engaged in work for their employer, were not at the place where their work compelled them to be, and the facility, the bar of soap, which was used to cause the injury, was not furnished or supplied by the employer. The workmen supplied their own soap and towels. The risk resulting in the injury was created by the voluntary act of the injured workman.
We have reexamined the authorities — cases cited by appellee in original brief and in brief on rehearing — and feel safe in saying that in every case where the injury resulted from skylarking or horseplay and compensation was awarded, the injury occurred either during the hours of work or after the workman had reported for duty and was waiting to go on his job. To state the proposition in other words — the injured employe was at his place of work and engaged therein, or had reported for duty and was waiting for the instrumentalities provided for his use to be brought to him by the employer in the usual course, or was just concluding the work and was injured in consequence of the condition of the place where his work required him to be, and the injured workman did not originate or participate in the skylarking or horseplay.
There is one apparent exception. We refer to the case of McCoy v. Spriggs, 102 Pa. Super. 500, 157 A. 523, 524. In that case the injured workman was engaged in and about the duties of his employment. The opinion of the court states the facts as follows: "* * * 'About lunch time, at 11:55 a. m., the deceased had measured a board to be put in a floor and walked across the room with this board and his hand saw to a keg on which he intended to saw the same. Close by the keg, one of the other carpenters was down on one knee, placing boards in the floor. McCoy (the deceased), when he came up to the man, laid one end of this board, which he was carrying, against this man's knee and said: "Is there anything I can do for you?" The man replied, "Take that board off my knee." The deceased dropped the board. The other man jumped to his feet. They immediately engaged in a friendly wrestling match. Deceased threw this other man to the floor, and shortly thereafter, while they were still scuffling, deceased rolled over on his back unconscious. In a short time he was dead. The cause of death was a rupture of a blood vessel at the base of his brain, i. e. apoplexy.' "
The court states the question presented as follows: "This appeal is from the action of the lower court in sustaining an award in a workmen's compensation case and involves one question: Was the testimony sufficient to show a causal relation between the accident and the death?" The court held that there was evidence to show such causal connection and affirmed the judgment. This case is out of line with the great weight of authorities and does not support liability in the case at bar.
In East Ohio Gas Co. v. Coe et al., 42 Ohio App. 334,182 N.E. 123, the opinion states: "It is true that the transaction had no direct connection with or relation to the work being performed by Coe, but it did occur while Coe was actually engaged in performing the duties of his employment. It is therefore important to determine whether the injury which Coe suffered had its cause outside of and disconnected with his employment, or whether his employment had some causal connection, directly or indirectly, with the injury."
The opinion further observes:
"This is a so-called 'horseplay' case — that is, one in which a workman was injured by the sportive act of a fellow workman — and in a great many jurisdictions the courts do not recognize the principle that risk from pranks of fellow workmen are incident to the business and grow out of the employment, and in such jurisdictions it is quite generally held that no compensation is recoverable under the Workmen's Compensation Acts for injuries sustained through horseplay or fooling which was done independently *Page 575 of and disconnected from the performance of any duty of the employment. In a much smaller number of jurisdictions the courts recognize that horseplay or fooling among the employeeswhile at work is incident to the business and can be fairly said to grow out of it, and in those jurisdictions the right to compensation is sustained where an employee who is injured through horseplay or fooling by other employees took no part in the fooling but was attending to his duties.
"Ohio belongs to the latter class of jurisdictions. * * *" This case does not support liability here.
In Leonbruno v. Champlain Silk Mills et al., 229 N.Y. 470,128 N.E. 711, 13 A.L.R. 522, 523, the court, speaking through Cardozo, J., in the very first sentence of the opinion states: "The claimant while engaged in the performance of his duties in the employer's factory was struck by an apple which one of his fellow servants, a boy, was throwing in sport at another, and as a consequence lost the better part of the sight of one eye. He did not participate in the horseplay, and had no knowledge of it till injured. The question is whether the accident was one 'arising out of and in the course of employment,' * * *." The award was sustained.
In Hollenbach Co. v. Hollenbach, 181 Ky. 262, 204 S.W. 152,160, 13 A.L.R. 524, 536, 537, to quote from the opinion: "Hollenbach was at the place of his employment engaged in performing an incident of the employment, and was injured by accident which was occasioned by electricity, a necessary agency in the business, and his death resulted. To the rational mind, the whole facts and circumstances considered, it is apparent that the accident grew out of and bears a causal relation to the natural hazards of the business. * * *"
The court further observed: "The evidence in this case wholly fails to show that Hollenbach was responsible for the wire being attached to the light socket, or that he knew of its connection. * * *" Compensation was awarded in that case. 13 A.L.R. pp. 536, 537.
In Glenn et al. v. Reynolds Spring Co. et al., 225 Mich. 693,196 N.W. 617, 618, 36 A.L.R. 1464, the claimants' decedent, Ross Glenn, was employed in the factory "as a sweeper, collecting the refuse and dirt with a wheelbarrow. At the noon hour on January 24, 1923, some of his fellow employees connected the live electric wires with the handles of the wheelbarrow and when Glenn, resuming his work, took hold of the handles he received a shock which caused his death." Ross did not engage in the horseplay and had no knowledge of the fact that the wheelbarrow had been electrified. Compensation was awarded in that case.
In L. P. Cassell et al. v. United States Fidelity Guaranty Co., 115 Tex. 371, 283 S.W. 127, we quote the second headnote: "A stage hand in a theater, who, while attending to the duties of his employment, is injured by a pistol kept in the theater for use in connection with plays performed there, and snapped by another employee in horseplay in which the injured employee did not participate, is entitled to compensation under a statute providing compensation for injuries having to do with and originating in the work." 46 A.L.R. 1137.
In Kansas City Fibre Box Co. v. Connell, 8 Cir., 5 F.2d 398, 43 A.L.R. 478, it was stated that: "An injury to one employed on a machine to cut box corners arises out of his employment where his coworker, having distracted his attention from his work by a playful feint to throw away his cap, he, in part, at least, to stop the interference, placed the latter's cap on the machine so that it was cut in the knives, which resulted in a scuffle for possession of his own cap and his getting his hand in the machine." That was a proceeding under the Federal Employers Liability Act and compensation was sustained.
In Socha v. Cudahy Packing Co., 105 Neb. 691, 181 N.W. 706, 13 A.L.R. 513, the workman was killed by the application of an air hose to his posterior after he had resumed his work. He did not participate in the horseplay.
In an annotation to Hollenbach's case, commencing on page 540, 13 A.L.R., and continuing through page 546, will be found a collection of the authorities which are in line with the holding of the former opinion in this case.
In Chapman v. Railway Fuel Co., 212 Ala. 106, 108,101 So. 879, 880, sustaining the constitutionality of the Workmen's Compensation Act, Code 1940, Tit. 26, § 253 et seq., the title of which was: " 'An act prescribing the liability of an employer to make compensation by way of damages for injuries received by an employee occasioned by an accident arising out of and in the course of his employment and providing for the enforcement of same, modifying *Page 576 common law and statutory remedies, in such cases; establishing an alternative elective schedule of compensation, regulating procedure for the determination of liability and compensation thereunder in certain cases, and prescribing penalties for the violation thereof; and providing for attorneys' fees and for medical and surgical services.' " it was observed: "* * * the general frame of the title suggests the legislative purpose to pass a comprehensive enactment covering the whole subject of the employer's liability to his employee on account of accident arising out of the employment, and to this general subject the denial of the right of action under section 3912 of the Code of 1907, section 7600 of the Code of 1923, where the parties have been brought within the field of operation covered by the Workmen's Compensation Act, is manifestly germane and cognate. As for sections 2484-2486 of the Code of 1907 (sections 5694-5696, of the Code of 1923), they are affected by the Compensation Act to the extent only, if at all, they apply to cases arising between employer and employee." Stated in other words, the scope and purpose of the act was to cover the liabilities arising out of the relation of master and servant under the common law, the employers' liability act, and the homicide act.
Prior to the enactment of the Workmen's Compensation Act it had been settled that the employer was not liable for the acts of employes, while off duty, resulting from horseplay or fooling. Kirby v. Louisville N. R. Co., 187 Ala. 443,65 So. 358. See Payne, Director General of Railroads v. Industrial Commission et al., 295 Ill. 388, 129 N.E. 122, 13 A.L.R. 518.
The application for rehearing is without merit.
Overruled.
All the Justices concur.