Ioma v. Indust. Comm.

OPINION By TERRELL, J. The facts in this case are stated more in detail in the dissenting opinion, than I expect to state them nere. The claimant, a caddie boy on a golf course, while waiting for an assignment for service as a caddie, and while in the caddie pen where he was required to be by the management of the golf club, engaged in a friendly scuffle with another caddie. The claimant had been using his pocket knife in cutting an apple preparatory to eating it. Another caddie, Stonebrook, remarked, “Your knife is not sharp.” The claimant thereupon informed Stonebrook that he would show him if the knife was sharp by using it upon him. The claimant then proceeded toward Stone-brook with the blade of the knife open, in play however, and got Stonebrook down on the ground. Stonebrook. apparently to protect himself, but realizing all the time that the whole proceeding was in play, lifted his leg and accidentally touched the arm or hand of the claimant, forcing the blade of the knife into claimant’s leg. Infection and gangrene later set in, causing amputation of the leg of the claimant, for which he now seeks compensation. The question presented for our determination is, — did the injuries to the claimant arise out of, or were they occasioned in the course of his employment? The law, under the Workmen’s Compensation Act, seems to be well settled in this respect, that to be compensable an injury to an employee must not only occur during the time of his employment, and in the place of his employment, but it must also arise out of the employment, so that there is some proximate causal connection between the accidental injury and the employment. [96] Do the facts in this case warrant the conclusion that there is a proximate causal connection between the employment and the injury complained of? There is some evidence that the employer in this case, through the caddie master knew that these caddies used pocket knives to amuse themselves in playing the games of “mumble-ty-peg” or “chubbies”. It could not be fairly inferred from the fact that the caddie master knew these boys amused themselves with pocket knives in such games, that the caddie master consented to the use of such pocket knives in horseplay and wresting between the boys. The pursuing of the fellow employe by the claimant, with an open knife, pretending even in play that he was about to use the knife upon his fellow employe to show him that it was sharp, can by no stretch of the imagination be considered as having been countenanced or approved by the caddie master. At the time of the injury, the claimant was not performing a service for his employer by thus pursuing his fellow employe. His injuries occurred arising out of his own personal pursuit and not as an act for the benefit of, or in the service of his employer. An employee who is injured' when engaged in the employee’s private and personal business, disconnected with the employment, is not entitled to compensation. Industrial Commission v Ahern, 119 Oh St 41. An injury “in the course of employment” connotes an injury sustained in the performance of some required duty done directly or indirectly in the service of the employer. Industrial Commission v Ahern, 119 Oh St 41. In the case of Highway Oil Company v State ex rel, etc., 130 Oh St 175, an employee was injured during the time of his employment and at the place of his employment, but the Court held there was no causal connection between the employment and the injury, and without establishing this causal connection, no recovery could be had. The second syllabus of this case just cited, reads as follows: “2. There is no causal connection between an employment and an accidental injury, and such injury does not result from or arise out of the employment, where an employee, in the course of his employment, as an attendant at a gasoline service station is injured by the accidental discharge of a firearm which he caused to be brought to the station at the request of a fellow employe for self-protection without the knowledge or acquiescence of the employer.” It may, with fair reason, be considered that if an employee was doing something that he was directly authorized to do, or which may fairly be implied from the nature of his employment and the duties incident thereto, or, if he was doing something at the time in furtherance of the master’s business, he may be said to have been in the course of his employment for the master. In the case at bar, however, it could not fairly be implied that in pursuing a fellow-employee, even in play, with an open knife, that he was doing any service in furtherance of his master’s business or doing anything that he was authorized to do. The Workmen’s Compensation fund is not a general insurance fund to protect employees against all accidents and injuries. This fund may be called upon to compensate employees for injuries only in limited respects as set forth in the Constitution, and that is, that such injuries must occur in, and arise out of the course of employment. “The causative danger must be peculiar to the work and not common to the neighborhood. It must be- incidental to the character of the business and not independent of the relation of master ahd servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment and to have [97] flowed from that source as a rational eonse menee.” Highway Oil Company v State ex rel etc., 130 Oh St 179. To use an analogy, in the case at bar, if, while claimant was cutting the a.ppie preparatory to eating it, he liad cut his Anger and infection had later set in, causing the amputation thereof, could it then be said that the injury to his finger arose out of his employment, or was occasioned thereby? T do not think so. Such injury would have no causal relation to his employment, would not arise out of any act of the employee on behalf of his employer and would arise out of the employee’s private and personal pursuit of his own business. The trial court, in this case entered judgment against the claimant under the authority of Industrial Commission of Ohio v Banks, 137 Oh St 517. From a consideration of the matters herein set forth, and under the case of Industrial Commission v Banks, supra, we feel that the trial court made the correct application of the law to the situation in this case presented, and the judgment is therefore affirmed. Exceptions may be noted. LIEGHLEY, J., concurs. MORGAN, J., dissents.