(115 Tex. 871, 283 S. W. 127.)

preme Court of the United States has used the test prescribed by these English decisions. Cudahy Packing Co. v. Parramore, 263 U. S. 418. 68 L. ed. 366, 30 A.L.R. 532, 44 Sup. Ct. Rep. 153, 23 N. C. C. A. 744.

Our statutes, in requiring that an injury, in order to be compensable must be one other than those specifically enumerated, and one "having to do with and originating in the work," have in effect adopted the requirement of the English and of most American acts that the injury "arise out of the employment." Applying our statutes and giving them a construction conformable in principle to the leading English decisions, this court held that an injury to one Behnken by being run over by a train at a crossing was compensable, because in doing the work required of him Behnken was ubjected to special danger from moving trains at the crossing. LumDermen's Reciprocal Asso. v. Behnen, 112 Tex. 112, 28 A.L.R. 1402, 246 S. W. 72. Like application was given our statutes in Scurlock's Case. Kirby Lumber Co. v. Scurock, 112 Tex. 124, 246 S. W. 76.

Workmen's ompensation Injury from ranks.

Considering every employee pecuCarly exposed to such pranks from is coemployees as are inspired y nothing more than a well-nigh niversal human craving for fun, nd recognizing that such pranks, -hen careless though innocent, not frequently occasion bodily harm, e are forced to consider these pranks as a hazard which the employee required to work with others must counter in the performance of his ties, and hence such pranks conitute a risk reasonably inherent in - incident to the conduct of the mployer's business. Clayton v. ardwick Colliery Co. [1915] 85 J. K. B. N. S. 292-H. L.; Markell Daniel Green Felt Shoe Co. 221 Y. 493, 116 N. E. 1060. As said in Chicago, I. & L. R. Co. Clendennin, 81 Ind. App. 323, 143 E. 303: "It is a matter of com

mon knowledge to employers of labor that men working together, or in near proximity to other workers, will indulge in moments of diversion from work to play pranks on each other; and where the duties of the employment require that an employee perform his work in a factory or mill with or near to other workers, whether such workers are coemployees or not, the risk from accident is thereby, to some extent at least, necessarily increased, and this increased risk is a risk of the employment."

Furthermore, we think that the legislature of Texas, in declaring what shall not be included within the term, "injury sustained in the course of employment," makes it reasonably plain that it was not intended to put such an injury as that sustained by Cassell without the benefits afforded by our statutes; for the legislature, in excluding injuries by the act of God, was particular to fix liability for even an injury so occasioned, if the employee was at the time engaged in the performance of duties which subjected him to a special hazard from the act of God causing the injury. With such a plain intimation of legislative purpose not to deny but to fix liability for an injury arising from a hazard to which the performance of Cassell's duties specially subjected him, we would not be justified in doing otherwise than sustaining the award made him by the district court.

It is ordered that the judgment of the court of civil appeals be reversed, and that the judgment of the district court be affirmed.

The following is the opinion by Presiding Judge Powell, Section B of the commission of appeals:

The court of civil appeals, speaking through Associate Justice Hall, gives us a very admirable statement of the nature and result of this suit, as follows:

"This was a suit to pensation under the Compensation Act alleged accident which

recover comWorkmen's

for an occurred to

Cassell, as an employee of the Wichita Theater Company. The appellant company defended upon the ground that the injuries complained of did not have to do with and originate in the business, trade, or profession of the employer, and were not received by Cassell while engaged in or about the furtherance of the affairs of his employer, but were the result of a frolic, horseplay, or other amusement by and between the injured party and other parties and employees by pranking or fooling with a pistol which was accidentally discharged, causing the injuries; that said pistol was not used in nor had anything to do with the business of the employer, and was not connected in any way with the business of the plaintiff's employer. Upon a trial to the court without a jury the court rendered judgment against the appellant. The findings of fact material to the issues to be considered are as follows:

"(8) I find that on October 9, 1920, and prior thereto, one Walter Crosby was manager of the Wichita Theater Company and had supervision over the entire work; that the said Walter Crosby had authority to issue orders to the employees; that he had authority to employ and discharge employees and to do anything necessary to the conduct of the business.

"(9) I find that on the said October 9, 1920, and prior thereto, the said W. C. Shaver was 22 years of age, and was manager of the stage of the Wichita Theater Company, and as such had immediate supervision, direction, and command over the employees of the said stage, including the plaintiff,

L. P. Cassell, who was a stage employee. I further find that the said Shaver had authority to issue such orders to the stage employees as were necessary to the conduct of the business, and to employ and dis

further find that said W. C. Shaver, charge the plaintiff, L. P. Cassell. I

as such stage manager of the Wichita Theater Company employed the

plaintiff Cassell. I further find that as to all other employees the said Shaver had authority to employ and discharge them with the approval of the said Walter Crosby.

"(10) I find that on October 9, 1920, and prior thereto, the said Walter Crosby and W. C. Shaver required and permitted pistols and other firearms to be kept on and about the stage of the Wichita Theater Company, to be used when needed in certain acts of the theater; that the said pistols so kept were sometimes fired to create an atmosphere for an act which was going on, and when a pistol was so fired off the stage the said Shaver sometimes fired it; that said pistols were handled by employees of the Wichita Theater Company, which employees had at all times access to them.

“(11) I further find that, at the time of the accident to Cassell, the said Cassell was in the course of his employment and in the discharge of his duties as a stage employee of the Wichita Theater Company, and was in the immediate presence of and under the supervi sion, direction, management, and command of his superior, W. C. Shaver. I further find that Cassell had taken no part in any horseplay that was being carried on around him.

"(12) I further find that there had not existed the practice or custom among employees to snap pistols at each other, and that, so far as the records show, this has never been done except on the night of the injury to Cassell and in the manner described in my next finding as to how the accident occurred to Cassell, except that in the morning of the same day a girl had another pistol on the stage that nearly all of the employees had fooled with during the day. I find further that the said Walter Crosby did not have knowledge of such horseplay with had had such knowledge he would pistols by the employees, and if he have probably called them down.

"(13) I find that Cassell re

(115 Tex. 371, 283 S. W. 127.)

ceived the pistol wounds which occasioned the injury herein about 11:30 Saturday night, October 9th; the pistol belonged to and was the personal property of W. C. Shaver, and was not being used by said Shaver in any manner connected with his duties as employee. I find that about 15 minutes prior to the time that Cassell was shot said W. C. Shaver had in fun, or as a prank, and with no no intent to injure, snapped the pistol once or twice at a young lady by the name of Gossett; that between the time he snapped it at the young lady and the time Cassell was injured he snapped it two or three times at the stomach of one Weinberg. I find that this was done in fun or frolic, or as a prank, with no intent to injure the said Weinberg. I find that he snapped the pistol at Cassell three times; that the first two times the pistol snapped, and the third time the pistol exploded and the bullet struck Cassell in the back, injuring his spinal column, and causing complete paralysis from the waist down; I find that Shaver was snapping the pistol at Cassell with no intent to injure, but as a prank or play.'

"The court concluded as a matter of law as follows: "That the injury to Cassell was an injury sustained in the course of his employment and of the kind and character having to do with and originating in the work, business, trade, or profession of an employer received by the employees while engaged in or about the performance of the affairs and business of the employer."'"

Upon appeal to the court of civil appeals, that court reversed the judgment of the district court and rendered judgment for the insurance company. See Tex. Civ. App., 243 S. W. 504.

Under our Compensation Act in Texas, Cassell is entitled to recover in this case if the district court correctly concluded that his injury "was an injury sustained in the course of his employment and of the kind and character having

to do with and originating in the work, business, trade or profession of an employer received by the employees while engaged in or about the performance of the affairs and business of the employer." Our statute so provides.

In this case, it is conceded by all that Cassell at the time of his injury, was in or about the performance of the affairs and business of his employer, and therefore in the course of his employment. The sole question here presented is whether or not his injury had to do with and originated in the work of his employer. As Judge Hall says: "Was the injury of a kind and character having to do with and originating in the business of his employer?"

The facts in this case are undisputed. Upon this state of facts, the district court held, as a matter of law, that Cassell was entitled to compensation. Upon that same state of facts, the court of civil appeals held, as a matter of law, that Cassell was not entitled to compensation and rendered final judgment accordingly. Which was correct?

Since Judge Hall's opinion was written in this case, and since the writ of error was granted by the supreme court herein, our supreme court has construed the Compensation Act, in this connection, and said:

"The Workmen's Compensation Law provides for compensation for . the death of an employee from ‘an injury sustained in the course of his employment,' and declares that 'all other injuries of every kind and character,' except certain enumerated injuries from causes or under conditions quite different from any attending the injury to Behnken, shall be included within the term 'injury sustained in the course of employment,' when 'having to do with and originating in the work, business, trade, or profession of the employer, received by an employee while engaged in or about the furtherance of the affairs or business of the employer whether upon the employer's premises or elsewhere.'

Vernon's Sayles's Civ. Stat. (Tex.) 1918 Supp. Arts. 5246-5, 5246-52. "The principal contention of plaintiff in error is that Behnken's injury did not have to do with and originate in the work or business of his employer, and that Behnken was not engaged at the time of injury in or about the furtherance of the affairs or business of his employer, and that hence the injury was not received in the course of Behnken's employment. An injury has to do with, and arises out of, the work or business of the employer, when it results from a risk or hazard which is necessarily or ordinarily or reasonably inherent in or incident to the conduct of such work or business. As tersely put by the Supreme Court of Iowa: 'What the law intends is to protect the employee against the risk or hazard taken in order to perform the master's task.' Pace v. Appanoose County, 184 Iowa, 498, 168 N. W. 918, 17 N. C. C. A. 682." Lumberman's Reciprocal Asso. v. Behnken 112 Tex. 103, 28 A.L.R. 1402, 246 S. W. 72.

The construction given by Judge Greenwood in the Behnken Case has been followed by the Supreme Court of the United States in the case of Cudahy Packing Co. v. Parramore, decided December 10, 1923, and reported in 263 U. S. 418, 68 L. ed. p. 366, 30 A.L.R. 532, 44 Sup. Ct. Rep. 153. In that case, Justice Sutherland had facts before him al

most identical with the facts in the

Behnken Case and he held the injury arose out of the employment and allowed compensation. He also held that the act did not violate the Constitution of the United States.

He cites the Court of Civil Appeals opinion in the Behnken Case in support of his finding, probably not having yet received the 112 Texas and discovered that the Supreme Court had affirmed the judgment of the lower courts in the Behnken Case.

It is true that Judge Greenwood and Judge Sutherland, in the cases above mentioned, did not have a

fact case involving horseplay or skylarking. So far as we have been able to ascertain, the case at bar is the first case in any appellate court in Texas involving horseplay. Counsel cite no Texas case involving it, and Judge Hall refers to no such case. In these circumstances Judge Hall naturally turned to other jurisdictions for authority. He does not cite any particular case in his opinion, but does refer to a very able note on page 540 of 13 A.L.R. In finally reaching his conclusion, Judge Hall admits that the case "is not without difficulty."

The A.L.R. citation, supra, relied upon by Judge Hall, is most interesting. It is a note on "Horseplay" in connection with liability under Compensation Acts. The author starts with the following:

"It is generally held that no compensation is recoverable under the Workmen's Compensation Acts, for injuries sustained through horseplay or fooling which was done independently of and disconnected from the performance of any duty of the employment, since such injuries do not arise out of the em ployment within the meaning of the acts."

The author cites numerous cases in support of this general rule. Where the injured party was indulging in horseplay, we think the general rule aforesaid is correct for the simple reason, as we see it, that under those circumstances such em

ployee received his injuries after turning aside from his employment and was no longer in the course of his employment. But this same author announces a conflict in the rulings of the courts where the injured party took no part in the horseplay, but was going along with his usual work. In cases of this kind, the author first states:

"In some cases denying a right to compensation, the fact that the injured employee took no part in the horseplay or fooling has been regarded as immaterial. Coronado Beach Co. v. Pillsbury (1916) 172 Cal. 682, L.R.A.1916F, 1164, 158

(115 Tex. 371, 283 S. W. 127.)

Pac. 212, 12 N. C. C. A. 789; Tarpper v. Weston-Mott Co. 200 Mich. 275, L.R.A.1918E, 507, 166 N. W. 857; Pierce v. Boyer-Van Kuran Lumber & Coal Co. (1916) 99 Neb. 321, L.R.A.1916D, 970, 156 N. W. 509; Hulley v. Moosbrugger (1915) 88 N. J. L. 162, L.R.A.1916C, 1203, 95 Atl. 1007."

The next proposition of this author is stated thus:

"But in a number of cases an exception to the general rule has been recognized, and the right to compensation sustained where an employee, who was injured through horseplay or fooling by other employees, took no part in the fooling, but was attending to his duties. Knopp v. American Car & Foundry Co. (1914) 186 Ill. App. 605, 5 N. C. C. A. 798; Pekin Cooperage Co. v. Industrial Bd. (1917) 277 Ill. 53, 115 N. E. 128; Phil Hollenbach Co. v. Hollenbach, 181 Ky. 262, 13 A.L.R. 524, 204 S. W. 152; Markell v. Daniel Green Felt Shoe Co. (1917) 221 N. Y. 493, 116 N. E. 1060; Leonbruno v. Champlain Silk Mills, 229 N. Y. 470, 13 A.L.R. 522, 128 N. E. 711; Willis v. State Industrial Commission (1920) 78 Okla. 216, 190 Pac. 92; Newport Hydro Carbon Co. V. Industrial Commission (1918) 167 Wis. 630, 167 N. W.

749."

In the case at bar, Cassell took no part in the horseplay. Upon that point, Judge Hall says:

"It seems to be conceded that plaintiff was at the time of the injury engaged in the business of his employer, and that he did not instigate and took no part in the horseplay which resulted in his injuries."

Therefore the question for determination now before us is: Which line of authority shall Texas follow? Judge Hall saw fit to follow the line holding that it is immaterial whether the injured party had any part in the horseplay or not. After a careful reading of the authorities, we have concluded that Texas should adopt the contrary rule, and follow those states which

If

recognize the exception to the general rule where the injured party took no part in the horseplay. Why do we so conclude? Because we think, in the first place, that the states so recognizing the exception to the general rule do so upon the theory which is exactly in line with the test laid down by Judge Greenwood in the Behnken Case, and heretofore quoted by us. The wording of compensation statutes in the several states of our country varies to a certain extent, but the same general beneficent results are attempted by them all. Many of the states provide that the injury must arise out of the employment before recovery can be had. As we view it, that language is not different, in effect, from the language our own statute employs. If the injury arises out of the employment, it originates in the employment. it so originates, it has to do therewith. At any rate, Judge Greenwood says that an injury is within our statute if it is inflicted as the result of a risk reasonably incidental to the work being done by the employee so injured. So hold many of the states where the statute provides that the injury must grow out of the employment before liability can attach. In other words, those states hold that horseplay is reasonably incidental to employments where people gather and commingle with each other. If they correctly so hold, then they meet the test laid down in the Behnken Case. We shall now review a few of these cases, and we think they correctly. hold that horseplay is reasonably incidental to a gathering of men under the circumstances present, in those cases.

In the case of Willis v. State Industrial Commission, 78 Okla. 216, 190 Pac. 92, the facts were these:

"The facts in this case agreed upon are as follows: It is agreed between the claimant and respondent, Alko Nak Coal Mining Company and Coal Operator's Exchange, that on the 18th day of February, 1919, the employees of the Alko