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West Penn Sand & Gravel Co. v. Norton

March 18, 1938

WEST PENN SAND & GRAVEL CO. ET AL.
v.
NORTON, DEPUTY COMMISSIONER (DONNE, INTERVENER).



Appeal from the District Court of the United States for the Western District of Pennsylvania; Frederic F. Schoonmaker, Judge.

Author: Davis

Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.

DAVIS, Circuit Judge.

This is an appeal from a decree of the District Court dismissing the bill of complaint filed by the appellants in which they sought to have set aside an award of compensation made by Deputy Commissioner Norton in favor of Rose Delle Donne for the death of her husband, Joseph Delle Donne.

The only question involved is whether or not the death of Donne arose "out of" his employment within the meaning of section 2(2) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. ยง 902(2), which defines "injury" as "accidental injury or death arising out of and in the course of employment."

The appellants have not denied, nor could they deny under the facts of this case, that Donne died "in the course of" his employment, but they do deny that his death arose "out of" his employment.

Donne was employed by the West Penn Sand & Gravel Company, hereinafter called West Penn, as a general utility man. On July 9, 1936, he was engaged in unloading certain equipment from a barge owned by West Penn. The barge, which was a short distance from shore on the Ohio river at Rochester, Pa., was being unloaded by means of a crane located on the bank. The method of unloading the barge was as follows: The arm of the crane would be swung out over the barge. Donne and other employees stationed on the barge would attach to the arm the articles to be unloaded, and the crane arm would then swing the load to shore. Other employees on shore would unload the equipment, and the crane arm would then be swung back to the barge for another load. The testimony indicated that it would take approximately fifteen to twenty seconds for the arm of the crane to swing to shore, be unloaded, and return for another load. During this interval the men on the barge had no active duties to perform other than to be ready to attach another load to the crane. In one of these intervals, Mike Diklich, a friend of Donne's, playfully threatened to throw Donne into the river, and started a friendly scuffle. In the course of this "horseplay" both men fell into the river and were drowned.

The only finding of fact made by the Commissioner, with which the appellants take issue, is that Donne "merely resisted the attack of his coemployee and did not participate in the horseplay." This finding, along with the other findings of fact, was affirmed by the District Court, which said that "the evidence fully justifies the findings of fact made by the Commissioner."

We agree with the District Court. Henry Mays, an employee of West Penn, also stationed on the barge when the accident occurred, testified that he heard Diklich say to Donne, "I'll put you in the river," and that Donne did not reply to this threat, but "just to sort of make resistance. * * * " Mays also gave the following answers to questions put to him at the hearing:

"Q. You say that Joe did resist Mike, trying to keep him from pushing him into the river, is that right? A. Yes, sir.

"Q. This happened so fast you heard these words, Mike trying to push him and Joe resisting, and in the water they went? A. Yes, sir, that's just how it happened."

This testimony fully justifies the above finding of fact.

Upon these facts, the Commissioner concluded that the death of Donne arose "out of and in the course of" his employment, and awarded compensation to Donne's widow.

The question of whether or not injuries or deaths resulting from "horseplay" can be said to arise "out of" the employment, has been answered in many cases, of which the following are illustrative. Mascika v. Connecticut Tool & Engineering Co., 109 Conn. 473, 147 A. 11; Lee's Case, 240 Mass. 473, 134 N.E. 268, 20 A.L.R. 870; Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 128 N.E. 711, 13 A.L.R. 522. See 43 A.L.R. 492. The general rule applied in practically all the cases is that the "horse-play" or "skylarking" must have some causal connection with the employment, but as pointed out in ...


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