
    Inland Mfg. Div., General Motors Corp., Appellant, v. Lawson, Admr., et al., Appellees.
    
      (No. 125614
    Decided May 10, 1967.)
    Common Pleas Court of Montgomery County.
    
      Messrs. Smith & ScJmache and Mr. McCray, for employer, appellant.
    
      Messrs. Gallon & Miller and Mr. Rice, for appellees.
   BReutoít, J.

This cause was tried to the court, a jury having been waived, and has been submitted on the evidence and the several briefs of the interested parties. Counsel for said parties are commended for their respective presentations and indulgence in their endeavors as advocates.

On December 13, 1962, one Emma L. Lawson, hereinafter referred to as Lawson, was under a contract of hire to perform work as a cutter for Inland Manufacturing Division, General Motors Corporation, hereinafter referred to as Inland, and while she was performing her work under said contract within the confines of one of Inland’s buildings maintained for the purpose of manufacturing certain automotive parts, there came a time when her scheduled lunch period arrived, to wit: 6:45 p. m. to 7:20 p. m., whereupon Lawson, with other co-workers left the work area and walked to and into a cafeteria maintained and operated within the confines of the aforesaid building for employees of Inland, where she engaged in eating her lunch and thereafter arose from her table, preparatory to enable her to walk out of the cafeteria and return to the area to pursue the performance of her work under her contract of hire, within the allotted time aforesaid. During her journey over an aisleway within said cafeteria, on said return trip, she stepped upon a piece of peach which caused her to slip and fall, resulting in an injury.

The cafeteria at the time aforesaid was operated by the Prophet Company under a contract with Inland, with Inland retaining supervisory control and the Prophet Company managing and maintaining the physical operation. Meals were not furnished Lawson by Inland as part of her contract of hire. Lawson was a female employee. She was not directed to eat in the cafeteria. In fact, in so far as her contract of hire is concerned she was free during the lunch period to follow any personal pursuit. Her work period was 3:00 p. m. to 11:00 p. m., she was paid for seven and one half hours, given a regularly scheduled lunch period of thirty-five (35) minutes, five (5) of which she was paid and was for the purpose of utilizing this time in washing up prior to lunch and returning to the work area.

The facts and circumstances further show that desirable eating establishments for a female employee, within a reasonable walking distance from the confines of Inland’s property, were for all practical purposes (particularly under a contract for hire with a thirty-five (35) minute lunch period) nonexistent. Further, Inland provided a lunchroom and thus, by virtue of Section 4107.42, Bevised Code, could in the contract of hire with females limit the period for mealtime to not less than thirty (30) minutes. Employees who brought lunch or purchased it were forbidden to eat in work areas, restrooms or on steps. Best and smoking areas were provided for such employees but the evidence shows they were always crowded and undesirable. Lawson did not drive a motor vehicle.

Lawson filed her claim for compensation with the Administrator of the Bureau of Workmen’s Compensation, who denied her claim. On appeal to the Dayton Begional Board of Beview said board vacated the order of the administrator and allowed her claim, and on further appeal to the Industrial Commission, the order of the regional board was affirmed. Thereafter Inland invoked the jurisdiction of this court. Now upon the pleadings and the evidence the court must decide whether or not Lawson may continue to participate in the state fund.

Under the compensation act in question, the injury to Lawson to be compensable must have been received in the course of and arising out of her employment. It would appear that the requirement could not possibly present any serious obstacle in arriving at a just and fair solution. Nevertheless research indicates that litigation is never ending in an attempt to rationalize the widely different and complex factual situations and bring them into focus with the purpose and intent of the act. Every state in the nation has adopted a Workman’s Compensation Act. In forty-one states, the injury to be compensable, must be received in the course of and arising out of the injured employee’s employment. Larson, Workman’s Compensation Law, 39 Section 5.30.

The theory underlying workmen’s compensation is exemplified in the old campaign slogan: “The cost of the product should bear the blood of the workman.” Prosser, Law of Torts, 383, Section 69 (2nd ed. 1955). (One Witte points out that the entire cost is not shifted to the consumer and that compensation is based on the principle of “The Least Social Cost,” 20 Am. Lab. Leg. Rev. 411.) In addition, the workman is to receive partial reimbursement without expense or delay and without the uncertainties of litigation. Crawford v. Indus. Comm., 110 Ohio St. 271; Austin Co. v. Brown, 121 Ohio St. 271. The acts abolished the common-law requirement of negligence and the three wicked sisters of the common law — contributory negligence, assumption of risk and the fellow servant rule. Thus the requirements that the injury be received in the course of and arising out of the employment though designed to effectuate this purpose, have themselves been the subject of endless litigation.

In resolving the question presented the court must of necessity attempt to interpret the meaning and application of the requirements embraced within these words and phrases: to wit, “received in the course of, and arising out of, the injured employee’s employment,” in light of the spirit and intent of the act.

An injury is said to occur in the course of employment when it takes place during the period of employment at a place where the employee may reasonably be and while he is performing his duties or something reasonably incidental to his employment. It is to be noted that an employee may be within the “course of his employment” under the Workmen’s Compensation Act, but not within the “scope of his employment” so that his employer will be liable for a tort committed against a third party. Aa example is employer sponsored recreation: Rodgers v. Allis Chalmers Mfg. Co., 153 Ohio St. 513 (employee not within “scope of his employment”); Ott v. Indus Comm., 83 Ohio App. 13 (employee within the “course of his employment”). Further, in the case where an employee is injured by the wrongful act of another, the requirement is that the employee seeking compensation was injured while he was in the course of his employment and not that the wrongdoer was within the course of his employment. Industrial Comm. v. Pora, 100 Ohio St. 218.

The litigious phrase “arising out of” employment test relates to the necessity of a causal connection between the injury and the employment. Fox v. Industrial Comm., 162 Ohio St. 569. It appears that the injury must be a result of a risk of the employment. It is to be noted that a “positional risk” test has been applied under which an injury is compensable since it would not have happened “but for” the fact that the employment placed the claimant into the position where he was injured. Aetna Life Ins. Co. v. Industrial Comm., 81 Colo. 233, 254 P. 995. It is also said that the employment connection need not be the direct or proximate cause of the injury with the attending requirements of predictability and absence of intervening causes. There have been judicial expressions in Ohio to the contrary. See McNees v. The Cincinnati St. Ry. Co., 152 Ohio St. 269. On the other hand it now appears that in Ohio it is enough that there is to the rational mind a causal connection. Fox v. Industrial Comm., supra.

A review of the case law in Ohio and elsewhere does nothing for the trial court except to force it to indulge in the conclusion that the language adopted by the Legislature to carry out the original purpose of the Workmen’s Compensation Act has fallen short. Upon reflection, it is apparent that common-law negligence and the “three wicked sisters,” heretofore referred to, are often the inarticulate premises in the holdings. This is perhaps best exemplified by the horseplay, scuffling, and assault cases. In 1921 in Industrial Comm. v. Weigandt, 102 Ohio St. 1, the Supreme Court of Ohio allowed a claim where the worker was hit in the eye by a file which flew from its handle during a friendly scuffle for it by two other employees. The court stated: “the test * * * is * * * whether the employment had some causal connection with the injury, either through its activities, its conditions, or its environments.” The court went on to say: “One of the conditions is the presence of machinery * * *; the condition of the factory itself * * *; and another circumstance is the presence of other employees engaged in and about the plant.” The same court later cited and “relied” on this case but denied a claim where the worker had initiated and took part in the friendly scuffle. Industrial Comm. v. Bankes, 127 Ohio St. 517. The rationale of the later decision is clearly faulty. The court did say that playful and sportive acts of employees are naturally and reasonably to be expected from the association of men in common work, and do constitute part of the hazard of the environment. And went on to say, “but where a claimant himself instigates and participates in such sport the employee himself, and not the environment, creates the hazard.”

This court observes that the Workmen’s Compensation Act never has contained words that bar recovery on account of any misconduct by an employee. This court suggests, with all due respect to the learned Justices in the case of Industrial Comm. v. Bankes, supra, that the result therein is clearly contrary to reason and experience. The human being is a limited creature. In the modern industrial society, with its attendant forces, it is natural that he will seek an outlet from his repressions. It has been succinctly stated by Judge Rutledge in 1940: “Work could not go on if men became automatons repressed in every natural expression. ‘Old Man River’ is a part of loading steamboats. The expressions of human nature are incidents inseparable from working together. They involve risks of injury and these risks are apparent in the working environment.” Hartford Accident & Ind. Co. v. Cordilla, 112 F. 2d 11.

In the last analysis, then, the servant is barred from recovery because of his fault, a species of fault differing, it is true, from any recognized by the common law as a bar to an action of tort, but fault none the less. It differs from and is narrower than contributory negligence, for deliberate action for the employee’s own purpose is required; it differs from and is narrower than voluntary assumption of risk, since it requires exposure to a risk not necessitated by the task set by the employer, but it partakes of the nature of each and may be called the assumption of a risk voluntarily and unnecessarily incurred by the servant for purposes of his own, and not in faithful and devoted service of his master.

It is observed that Inland has stressed the case of Coston v. Carnegie Ill. Steel Corp., 69 Ohio Law Abs. 375, as authority for this court to deny Lawson’s claim. This court rejects the holding in that case and would do so even if the facts therein were identical to this case. The distinctions on the facts nevertheless are impressive as they relate to conditions and environment. Here we have a female employee who, as part of her contract for hire, was provided with a scheduled lunch period and was, if she elected to eat lunch, for all common sense purposes by reason of the existing conditions and circumstances, required to eat lunch in the cafeteria, and her injury occurred at a time when she was endeavoring to return to her work area.

There can be no dispute that Lawson’s injury took place during the period of her employment and at a place where she may reasonably be. The court holds that under the facts and circumstances presented she was performing something reasonably incidental to her employment. She was returning to her work area on paid time from a place where she might reasonably be, namely the cafeteria maintained for the mutual benefit of Inland and its employees, especially its female employees. She was therefore in the course of her employment as contemplated by the Workmen’s Compensation Act. Now did her injury arise out of employment? Is her injury a result of a risk of the employment? The court answers these questions in the affirmative because upon consideration of all the facts and circumstances which may be considered and weighed there is a causal connection between the injury and the employment. The peach on the floor of the cafeteria is the factor establishing the causal connection. Providing and having a cafeteria operated within a factory creates certain hazards and attending risks.

Having found that Lawson was performing something incident to her employment — returning to her work area from the table where she had eaten lunch in the cafeteria— then it may only be concluded that the conditions attached, and are incident to, the employment and, thus, are the factors in the catastrophic combination and therefore the consequent injury to Lawson arises out of the employment.

This court, in conclusion, is compelled to adopt the pronouncements found sprinkled through some of the Supreme Court and Courts of Appeals decisions, namely: The provisions of Section 4123.10, Revised Code, are said to be in a sense binding on the courts which review orders of the Industrial Commission. Roma v. Industrial Comm., 97 Ohio St. 247 at p. 253. (Section 4123.10, Revised Code, reads in part: “may make an investigation in such manner as in its judgment is best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of such sections.”) “The real spirit of this act is to measurably banish technicality and to do away with the nicety of distinction so often observable in the law, and commands a liberal construction in favor of the employees.” Industrial Comm. v. Pora, supra. Further, the court observes that in the early years of the act the Attorney General made this significant statement: “Claims arising under the Workmen’s Compensation Law should be clear, but any doubt of a claimant to participate in said fund should be weighed carefully in favor of the claimant.” 1916 Ohio Attorney General Volume 1, p. 879.

Finally, to deny Lawson the right to continue to participate in the state fund would be sadly missing the fine spirit of the Workmen’s Compensation Act.

The court, therefore, finds that on all the facts and circumstances herein existing, considered in light of the unfolding legal propositions of law and authorities applicable to all thereof, are persuasive and thus a finding that Lawson received her injury in the course of, and arising out of, her employment is justified.

It is the conclusion and determination of this court that Lawson is entitled to continue to participate in the fund under the Workmen’s Compensation Act of Ohio.

Counsel for Lawson shall draft an appropriate judgment entry.  