The opinion
Carleton Harris, Chief Justice (dissenting). While I have every sympathy Avith an injured employee, and AAith his family Avhere the injury is fatal, and likewise fully agree that a liberal construction should be given the Compensation Act, nonetheless, it does not appear to me that recovery should be allowed in this type of case. I cannot bring myself to feel that it is right or proper, or that the ends of justice are best served by permitting the recovery of compensation by a Avorker, or his dependents, AAdiere the employee sustained his injury at a time when he was not performing his duties, hut rather, to the contrary, had deliberately stepped aside to commit an act to satisfy his own sense of humor, such act being totally unrelated to the task for which he was employed. 1
There are numerous cases from various jurisdictions relative to injuries sustained while engaging in horseplay; some allow recovery, and some deny it, but according to C.J.S., Volume 99, Section 225, Page 753, the majority view is as follows:
“The courts are sharply divided as to whether injuries resulting from horseplay, skylarking, and practical joking are compensable. Under what is apparently the majority view, an injury to an employee as a result of sportive acts of coemployees, horseplay, or skylarking is not compensable as not arising out of the employment where the injured employee was a participant, initiator, or instigator.”
The court majority in the case before us appear to take the view that Hughes v. Tapley, 206 Ark. 739 , 177 S. W. 2d 429 , was overruled by Johnson v. Safreed, 224 Ark. 397 , 273 S. W. 2d 545 . Quoting from the majority opinion:
“Johnson v. Safreed was an assault case; and if a recovery can be allowed the original aggressor in an assault case, then likewise, recovery can be allowed the original instigator in a horseplay case.”
I do not agree with that analysis. As stated by Larson’s 'Workmen’s Compensation Law, Volume 1, Section 23.50, Page 354:
“While assaults and horseplay have some features in common, they also have some differences which make it doubtful whether the reasoning of assault cases can be taken over bodily and applied to horseplay. This reasoning pictures the day-to-day enforced contact of divergent personalities under the strains of industrial life, with the not improbable culmination in flareups of tern-per as the direct result of this environment. There is something relentless and inescapable about the emotional explosion that is thus ultimately thrust .upon the claimant “aggressor” virtually against his will. But in a horseplay case, the most you can say is that the employment environment provides temptation and opportunity, rather than implacable emotional pressure. Hence, when a prankster sets out to play a practical joke, there is a higher probability that the action may amount to a deliberate and conscious deviation from employment than in the assault cases, in which almost every instance of violence is a spontaneous and unpremeditated reaction to the play of the surroundings on the claimant’s temperatment.”
Also, Justice Millwee, who wrote the opinion in Johnson v. Safreed, supra, makes it a point to particularly call attention to the fact that the injury sustained by the claimant in that case was “work-connected.” In fact, this is emphasized three times in the opinion.
The majority quote a portion of the opinion of the Circuit Court in the present case, stating that they agree with the findings therein. One of these findings was that “the conditions of employment did induce the horseplay;” also, “the injury which caused the claimant’s death arose out of his employment.” I cannot agree with these conclusions, nor definitely determine the basis upon which they were made. It is to be supposed that these finding’s relate to the fact that the employer had the air hose on the premises, and that fact “induced the horseplay;” also, because Childress was injured by the perversive use of one of the pieces of equipment necessary to his work, the injury “arose out of the employment. ”
I, of course, agree that an innocent victim of horseplay should be granted compensation, but where the injury is the result of the inured person’s willful, deliberate, and total departure from the duties for which he was employed, I cannot see that compensation is in order. To my way of thinking, Childress was as far from performing his duties at the time of inury, as if, instead of wrestling and playing with an air hose, he had spent that time asleep or entirely away from the premises.
I, therefore, respectfully dissent.
The Commission found that Childress instigated the horseplay which resulted in his fatal injury, and this is not disputed.