Young v. Liberty Mutual Insurance Co.

Felton, J. Harley H. Young filed a claim for compensation with the Industrial Board for injuries alleged to have been sustained by him while working for the Georgia Marble Company. On appeal to the full board the director’s denial of compensation was affirmed. The superior court affirmed the award and the claimant excepted. The facts are undisputed. The claimant was a member of a section gang employed by the Georgia Marble Company to keep in repair a private railroad right of way owned by the company. While they were engaged in their work it began to rain and the men went into a small tool shack where materials and tools, used *844 for quarry purposes by the company, were stored. While they were in the shack Howard Cantrell picked up a can containing powder and poured some of it into his hand. Olen Fountain asked him for some of it. Cantrell gave Fountain some of the powder and placed what he had left on the bench on which they had been sitting. Howard Ray lighted a cigarette and tossed a match at the pile of powder on the bench. The match fell short of the powder and went out. Charles Crow then got up and walked over in front of Ray and Cantrell and struck a match and threw it on the powder, as a result of which there was an explosion and the claimant and four other members of the group received painful burns. The men were accustomed to go to the nearest shelter or building of their employer when it was raining. The tool house into which they went was nearest to where they were working when the rain started. Claimant and other employees had used this house on other occasions to seek shelter from the rain, and had been directed so to do by their foreman. The tool house was used for the purpose of storing tools, powder and other materials. The powder was used for blasting stone in the quarry and was not under lock and key, but on the day of claimant’s injury was in a large can on the work bench. There was no lid on the can. The claimant was being paid for the time he was in the tool house. The principle upon which an adjudication of this case rests seems to have been decided contrary to the contentions of the claimant. Under the rulings in United States Fidelity & Guaranty Co. v. Green, 38 Ga. App. 50 (142 S. E. 464), and Maddox v. Travelers Insurance Co., 39 Ga. App. 690 (148 S. E. 307), it is clear that the injury in the instant case can not be said to have arisen “out of the employment” of the claimant, conceding that it arose in the course of the employment. While the act of the fellow servant in the Green case, supra, may not have been “horse play,” it was carelessness which did not arise out of the servant’s duties. The principle of the Green case is the same as that of this case, which is that such an occurrence might not have been reasonably anticipated by the employer as a risk naturally incident to the nature of the- employment, and after the event, not to have had its origin in a risk connected with the business of the employment and to have arisen out of and flowed from that source as a natural *845 consequence. Claimant cites a number of cases from other jurisdictions to the effect that injuries resulting from the “horse play” of fellow servants in which the injured employee takes no part are compensable. Our own decisions, however, follow the contrary authorities from other jurisdictions, which are numerous. As we have stated, the ruling in the Green case is controlling in principle, and in the Maddox case the decision denying compensation was not based on the fact that the injured employee instigated or took part in the “horse play,” but on the theory that the injury did not arise out of a risk connected with the business of the employer. The claimant contends that the storage of the powder subjected the claimant to a risk not common to the public. That is true, and if the injury had occurred from a risk contemplated by the employer it would have been compensable. The distinction here is that a risk from exploding powder because of a wanton and foolish act of a fellow servant is not in law foreseeable as a risk of the employment. If the explosion had been caused by the employee while engaged in some duty connected with his employment the result would be different. The court did not err in affirming the award of the Industrial Board denying compensation. Judgment affirmed. Sutton, J., concurs.