BROWN, Justice.
This is an appeal “by certiorari” authorized by § 297 of the Code of 1940, Tit. 26, to review the judgment of the Circuit Court of Jefferson County, awarding to appellee compensation as the widow of Henry E. Williams, under the elective compensation act. Code 1940, Tit. 26, §§ 292-306.
The evidence is without dispute, and shows that Williams was at the time of his injury and death an employee of the appellant at its plant in the City of Birmingham, and had been such for several years; that on the lltli of June, 1942, after he had
punched the clock at 3 :30 p. m., terminating his day’s work, leaving his place of work, he went to the bath house and locker room maintained by the employer on its premises for the use of employees at their option, to take a bath and change his clothes and proceeded to the wash basin where several other employes were engaged in washing their hands and face, and then be began to tease one Culbreath, who was so engaged and had his face covered by soapy water, by cutting off, stopping or diverting the flow of the water away from Culbreath’s reach, and in a burst of resentment or anger Culbreath threw a piece of soap which he was using at Williams, striking him in the groin on an inguinal hernia causing a rupture of the ileum — the terminal end of the small intestine. This injury superinduced peritonitis causing death on the following day. No one else engaged in this “horseplay” and Williams was the aggressor.
The evidence further shows that the employes of this plant had engaged in horseplay through the years, and though there was no definite printed rule promulgated by the employer forbidding such horseplay, the management had constantly and persistently warned against such horseplay by large signs maintained at different places, and especially in the bath house and locker rooms, and through safety meetings, and printed posters circulated among the employees, that such fooling and horseplay was dangerous, calculated to engender resentment, arouse anger in the person made the butt of the joking, and enjoined due care to avoid such hazard.
Under the terms of the statute, an injury or death to be compensable, must be caused by an
“accident arising out of and in the course of
his employment,” and the statute declares that this terminology does “not * * * cover workmen except while engaged in, on, or about the premises where their services are being performed, or where their services require their presence as a part of such service at the time of the accident, and during the hours of service as such workmen, and shall not include an injury caused by the act of a third person
or fellow employee
intended to injure the employee because of reasons personal to him, and not directed against him as an employee or because of his employment, and it shall not include a disease unless the disease results proximately from the accident.” [Italics supplied.] Code 1940, Tit. 26, § 262; Hayes v. Alabama By-Products Corporation, 242 Ala. 148, 5 So.2d 624; Ex parte Louisville & N. R. Co., (House v. Louisville & N. R. Co.), 208 Ala. 216, 94 So. 289.
The controlling question in this case is whether or not the injury and death of Williams was the proximate result of an “accident arising out of and in the course of” his employment.
Pretermitting the question ' of whether Williams’ coemployee Culbreath intended to injure him because of Williams’ joking and horseplay, we are clear to the conclusion from the undisputed evidence that Williams’ injury and death did not arise out of his employment. Appellee’s counsel concede that the earlier cases interpreting the Workmen’s Compensation Act hold generally, “that compensation is not recoverable for injuries suffered from horseplay or fooling, which was done independently and disconnected from the performance of any duty of the employment, since such injuries do not arise out of the employment within the meaning of the act.”'
But appellee contends that the modern decisions have extended this rule, or what is to the same effect, have established an exception thereto that, when an injury or death is caused by horseplay not instigated or participated in by the injured workman who was at the time of the injury performing the duties of his employment, such injury is compensable. Appellee further contends that when it is shown that the injury was proximately caused by “horseplay
commonly carried on by the employeeSj with the knowledge or consent of the employer, so as to constitute a condition or incident to the employment”
such injury is compensable.
Manifestly the appellee’s case is not within the first category last above stated. Williams instigated and participated in the horseplay and thereby brought about his injury.
Nor are we of opinion there was any evidence that supported the conclusion that such horseplay was commonly carried on by the employees of the defendant with its knowledge or consent
so as to constitute a condition or incident to the employment.
Otherwise stated, “Upon consideration of all the circumstances, a causal connection between the conditions under which the work
is required to be performed and the resulting
injury” is not shown. In re Me
Nicol et al., 215 Mass. 497, 102 N.E. 697, L.R.A.1916A, 306.
The appellee cites the case of State ex rel. H. S. Johnson Sash & Door Co. v. District Court et al., 1918, 140 Minn. 75, 167 N.W. 283, 284, L.R.A.1918E, 502, as controlling because the Alabama Act was largely an adoption of the Minnesota Act. The injured workman in that case, to quote from appellee’s brief, “One Filas, was employed in a wood working factory where the evidence showed that his fellow employees were accustomed to throwing missiles, such as blocks of wood and sash pins at one another including the employee; that the employer knew of the custom or should have known of it by the exercise of due diligence; that a fellow employee threw a sash pin at Filas in sport and without intending to injure him; that it hit him in the eye and destroyed his vision. Filas was at the time at his place of work engaged in and about the duties of his employment, and did not participate in the horseplay. Liability was rested upon the causal connection between the injury
and the condition under which the defendant required him to work.”
The court observed : “The rule is well enough settled that where workmen step aside from their employment and engage in horseplay or practical joking, or so engage while continuing their work, and accidental injury results, and in general where one in sport or mischief does some act resulting in injury to a fellow worker, the injury is not one arising out of the employment within the meaning of compensation acts. * * * Here we conceive the situation to be different. Filas was exposed by his employment to the risk of injury from the throwing of sash pins in sport and mischief. He did not himself engage in the sport. His employer did not stop it. The risk continued. The accident was the natural result of the missile throwing proclivities of some Filas’ fellow workers and was a risk of the work.” In citing and commenting on cases to support the ruling, the court stressed the fact that the injured workman at the time of his injury was engaged in the performance of his work and did not participate in the horseplay.
The same court in Barden et al. v.
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BROWN, Justice.
This is an appeal “by certiorari” authorized by § 297 of the Code of 1940, Tit. 26, to review the judgment of the Circuit Court of Jefferson County, awarding to appellee compensation as the widow of Henry E. Williams, under the elective compensation act. Code 1940, Tit. 26, §§ 292-306.
The evidence is without dispute, and shows that Williams was at the time of his injury and death an employee of the appellant at its plant in the City of Birmingham, and had been such for several years; that on the lltli of June, 1942, after he had
punched the clock at 3 :30 p. m., terminating his day’s work, leaving his place of work, he went to the bath house and locker room maintained by the employer on its premises for the use of employees at their option, to take a bath and change his clothes and proceeded to the wash basin where several other employes were engaged in washing their hands and face, and then be began to tease one Culbreath, who was so engaged and had his face covered by soapy water, by cutting off, stopping or diverting the flow of the water away from Culbreath’s reach, and in a burst of resentment or anger Culbreath threw a piece of soap which he was using at Williams, striking him in the groin on an inguinal hernia causing a rupture of the ileum — the terminal end of the small intestine. This injury superinduced peritonitis causing death on the following day. No one else engaged in this “horseplay” and Williams was the aggressor.
The evidence further shows that the employes of this plant had engaged in horseplay through the years, and though there was no definite printed rule promulgated by the employer forbidding such horseplay, the management had constantly and persistently warned against such horseplay by large signs maintained at different places, and especially in the bath house and locker rooms, and through safety meetings, and printed posters circulated among the employees, that such fooling and horseplay was dangerous, calculated to engender resentment, arouse anger in the person made the butt of the joking, and enjoined due care to avoid such hazard.
Under the terms of the statute, an injury or death to be compensable, must be caused by an
“accident arising out of and in the course of
his employment,” and the statute declares that this terminology does “not * * * cover workmen except while engaged in, on, or about the premises where their services are being performed, or where their services require their presence as a part of such service at the time of the accident, and during the hours of service as such workmen, and shall not include an injury caused by the act of a third person
or fellow employee
intended to injure the employee because of reasons personal to him, and not directed against him as an employee or because of his employment, and it shall not include a disease unless the disease results proximately from the accident.” [Italics supplied.] Code 1940, Tit. 26, § 262; Hayes v. Alabama By-Products Corporation, 242 Ala. 148, 5 So.2d 624; Ex parte Louisville & N. R. Co., (House v. Louisville & N. R. Co.), 208 Ala. 216, 94 So. 289.
The controlling question in this case is whether or not the injury and death of Williams was the proximate result of an “accident arising out of and in the course of” his employment.
Pretermitting the question ' of whether Williams’ coemployee Culbreath intended to injure him because of Williams’ joking and horseplay, we are clear to the conclusion from the undisputed evidence that Williams’ injury and death did not arise out of his employment. Appellee’s counsel concede that the earlier cases interpreting the Workmen’s Compensation Act hold generally, “that compensation is not recoverable for injuries suffered from horseplay or fooling, which was done independently and disconnected from the performance of any duty of the employment, since such injuries do not arise out of the employment within the meaning of the act.”'
But appellee contends that the modern decisions have extended this rule, or what is to the same effect, have established an exception thereto that, when an injury or death is caused by horseplay not instigated or participated in by the injured workman who was at the time of the injury performing the duties of his employment, such injury is compensable. Appellee further contends that when it is shown that the injury was proximately caused by “horseplay
commonly carried on by the employeeSj with the knowledge or consent of the employer, so as to constitute a condition or incident to the employment”
such injury is compensable.
Manifestly the appellee’s case is not within the first category last above stated. Williams instigated and participated in the horseplay and thereby brought about his injury.
Nor are we of opinion there was any evidence that supported the conclusion that such horseplay was commonly carried on by the employees of the defendant with its knowledge or consent
so as to constitute a condition or incident to the employment.
Otherwise stated, “Upon consideration of all the circumstances, a causal connection between the conditions under which the work
is required to be performed and the resulting
injury” is not shown. In re Me
Nicol et al., 215 Mass. 497, 102 N.E. 697, L.R.A.1916A, 306.
The appellee cites the case of State ex rel. H. S. Johnson Sash & Door Co. v. District Court et al., 1918, 140 Minn. 75, 167 N.W. 283, 284, L.R.A.1918E, 502, as controlling because the Alabama Act was largely an adoption of the Minnesota Act. The injured workman in that case, to quote from appellee’s brief, “One Filas, was employed in a wood working factory where the evidence showed that his fellow employees were accustomed to throwing missiles, such as blocks of wood and sash pins at one another including the employee; that the employer knew of the custom or should have known of it by the exercise of due diligence; that a fellow employee threw a sash pin at Filas in sport and without intending to injure him; that it hit him in the eye and destroyed his vision. Filas was at the time at his place of work engaged in and about the duties of his employment, and did not participate in the horseplay. Liability was rested upon the causal connection between the injury
and the condition under which the defendant required him to work.”
The court observed : “The rule is well enough settled that where workmen step aside from their employment and engage in horseplay or practical joking, or so engage while continuing their work, and accidental injury results, and in general where one in sport or mischief does some act resulting in injury to a fellow worker, the injury is not one arising out of the employment within the meaning of compensation acts. * * * Here we conceive the situation to be different. Filas was exposed by his employment to the risk of injury from the throwing of sash pins in sport and mischief. He did not himself engage in the sport. His employer did not stop it. The risk continued. The accident was the natural result of the missile throwing proclivities of some Filas’ fellow workers and was a risk of the work.” In citing and commenting on cases to support the ruling, the court stressed the fact that the injured workman at the time of his injury was engaged in the performance of his work and did not participate in the horseplay.
The same court in Barden et al. v. Archer Daniels Midland Co., 187 Minn. 600, 246 N.W. 254, 255, observed: “It is not questioned that at the time of the fatal injury Barden was in the course of relator’s employment. The only question presented is whether the accident arose out of such employment. The commission’s finding that it did so arise was proper.”
Under the modern authorities, injury resulting from horseplay to be compensable, such horseplay must not be instigated by the injured workman and he must at the time be engaged in the duties of his employment. Barden et al. v. Archer Daniels Midland Co., supra; McKenzie v. Railway Exp. Agency, Inc., 205 Minn. 231, 285 N.W. 529, 530; Socha v. Cudahy Packing Co., 1921, 105 Neb. 691, 181 N.W. 706, 13 A.L.R. 513.
Here the employer had used every effort by repeated warnings and safety meetings, consistent with maintaining a wholesome morale, to discourage such practices among its employees, going to the extent in one or more instances of discharging guilty employees. And in the instant case the injured workman had resorted to the bath house where his employment did not compel him to go, but where he could go at his option, and then himself instigated the horseplay that resulted in his death. In the circumstances disclosed by the undisputed evidence, we are constrained to hold that, his injury and death did not arise out of his employment and is not compensable. Industrial Commission et al. v. Rocky Mt. Fuel Co. et al., 107 Colo. 226, 110 P.2d 654.
It results that the writ of certiorari is hereby granted and the judgment of the circuit court is, therefore, reversed and one here rendered dismissing the suit.
Writ granted; reversed and rendered.
GARDNER, C. J., and THOMAS and LIVINGSTON, JJ., concur.