employe’s broken arm sustained while arm-wrestling in a tavern not compensable where stopover was contrary to employer’s explicit instructions
How later courts described this case
- employe’s broken arm sustained while arm-wrestling in a tavern not compensable where stopover was contrary to employer’s explicit instructions
- truck driver who was injured while arm wrestling after consuming three or four beers over a 5⅛ hour period during lay-over time held not to have been within the scope of employment
- the claimant’s disregard of the employer’s direction made the personal errand “distinct”
Written by the judges who cited it.
The opinion
JOSEPH, J.,
dissenting.
The employer argues (and the majority agrees) that the fact that Peterson and claimant remained in Jacksonville on Saturday instead of going directly to Columbia establishes a distinct departure on a personal errand. The referee accepted that argument and apparently based his decision on it. 1 I do not agree. *660 Columbia is a one-day drive from Jacksonville. There was evidence that the custom was to go to the destination and do any necessary waiting there, but there was no evidence that Peterson was ordered to do so in this instance. Moreover, claimant’s injury did not result from the decision to kill time in Jacksonville, rather than in Columbia. Furthermore, the evidence shows that Peterson was in charge, and claimant had no control over when the trip to South Carolina would be made. 2
The question then is whether the activity of going to a bar with his superior, drinking beer, watching a ball game and arm wrestling — all at a time when claimant was required to be away from his employer’s premises — was outside the scope of his employment. The nature of claimant’s employment required him to kill time and, as a practical matter, to kill time with Peterson. The employer could not reasonably expect them to remain idle in a motel room during the whole waiting period. Drinking beer and watching a football game was not an unreasonable choice of recreation, and the fact that the injury arose from "horseplay” does not by itself preclude compensation. Stark v. State *661 Industrial Acc. Com., 103 Or 80 , 204 P 151 (1922). 3 I observe that tests of strength are a common form of recreation among men whose jobs involve physical labor. See cases noted in 1A Larson, Workmen’s Compensation Law 5-158-161, § 23.65 (1978).
Larson suggests that in determining whether horseplay is within the course of employment, one significant factor is whether it necessitated the dropping of active work duties. He states that where the horseplay occurs during a forced lull in work activities, a more substantial deviation should be required to defeat compensation. 1A Larson 5-162, § 23.66 (1978). As noted above, from claimant’s perspective the arm wrestling took place during a forced lull in work activities. That was not such a substantial deviation that it should be considered outside the course of his employment. I would hold the injury compensable.
SCHWAB, C.J., RICHARDSON, J., and BUTTLER, J., join in this dissent.
In his opinion the referee noted:
"In the within case, claimant’s own testimony was that normally the drivers and the truck would lay over at the destination where the *660 truck was to be loaded. The truck had been dispatched to Columbia, South Carolina, 360 miles away. Upon completion of breakfast, there was no employment reason to remain in Jacksonville. Going to the bar for "one” beer, may not be such a deviation to take the drivers out of the course and scope of their employment. Remaining at the bar for an admitted minimum of 5 to 5-1/2 hours when the drivers had been dispatched to a destination 360 miles away presents a serious question of whether the bar activities were an incident to the employment.”
In response to the question whether Peterson directed claimant to go to the bar with him, claimant replied:
"Well, I had no better place to go, other than just sitting in the truck. He had the keys to the truck, and he was in charge, and I couldn’t go anyplace without him, and I didn’t know what his plans were, other than he said we were going to go to South Carolina; so I didn’t have a motel room to go to, I had to go where he was.”
In Stark v. State Industrial Acc. Com., 103 Or 80, 100 , 204 P 151 (1922), the court put it this way:
"It might be remarked parenthetically, that it is not to be supposed that a crew of men could be obtained unless some of them during working hours would play practical jokes on their fellow-workmen, especially if such men were red-blooded Americans.”