PER CURIAM. This is a petition in certiorari to annul an award made by the Industrial Accident Commission in favor of Gus Farsais and against the petitioner, who was the insurance carrier for the San Joaquin Packing Company, the employer of said Farsais.

At the time of the injury Farsais was working for the packing company, engaged in sweeping the floor of a part of the premises where other employees were putting grapes into a machine as a part of their duty. While Farsais was at work an employee threw some grapes at another employee, and, his_aim being bad, he missed the other person, and one of the grapes hit Farsais in the eye, thereby causing his injury. Upon the evidence the Commission made a finding that

The injury occurred "in the course of and arising out of his employment, as follows: One employee threw some grapes at another employee, and one of the grapes struck the defendant Gus Farsais in the left eye, resulting in the permanent disability hereinafter described."

There was nothing in the nature of the employment in which any workmen present were engaged which required any of them to throw grapes at another. The act was either a playful or malicious act of one employee toward another, having no connection whatever with the work in which he was engaged.

The case is not distinguishable from Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 Pac. 212, L. R. A. 1916F, 1164, and Fishering v. Pillsbury, 172 Cal. 691, 158 Pac. 215. It comes within the general rule of the cases known as the "skylarking" cases or "horseplay" cases. The court did not issue this writ with any desire to overrule those cases. At the time the alternative writ was issued the court had ordered a writ issued in a case previously filed, entitled General Accident F. & L. A. Co. v. Industrial Accident Commission (S. F. No. 9633) 200 Pac. 419, in which an opinion was rendered on August 15, 1921, and it was desired to consider that case fully prior to a decision upon the present case. The line of demarcation between cases which come within the definition of an injury "arising out of and in the course of the employment" and those which do not is of necessity a narrow one, and it is not always easy to distinguish the exact point of division without careful consideration. In the case last referred to the employer became engaged in a controversy amounting to a quarrel arising immediately out of his business and while so engaged and before the matter was concluded and because of such controversy he fired a shot at one of the men engaged therein, missing him but which glanced and hit one of his own employees, thus causing the injury complained of. It is evident that the act which caused the injury was one which arose directly out of the business in which the injured person was employed. As the court said in the opinion in that case, the injury "was received in the course of a series of incidents which had their initiative in a business transaction of his employer, and while the latter was actively and justifiably engaged in defending his business." This was held to be an injury arising out of his employment. In the present case the throwing of grapes had no connection whatever with the general business carried on in the establishment, nor with the particular work of any employee therein. The respondent concedes that the decision of the Commission is inconsistent with the decisions of this court first above cited. It is contended in its behalf that those cases should be overruled. The argument is that in every establishment where a number of workmen are required to be near to each other in the course of their employment for hours at a time "some frolicking is inevitable. It occurs in every plant. The industry, by bringing workmen together in numbers exposes its workmen to this hazard, which is just as much a hazard incident to the employment and ‘arising out of the employment' as the danger of slipping upon floors, colliding with other workmen, falling down stairs." and the like.

Although this line of reasoning has support in the decisions of some of the other states, it is contrary to our own, and it seems to us to be an unwarranted extension of the meaning of the controlling language of the Constitution and of the statute defining the character of injuries that are to be compensated out of the earnings of the business in which they occur. In the Coronado Beach Co. Case we said:

"The accidents arising out of the employment of the person injured are those in which it is possible to trace the injury to the nature of the employee's work, or to the risks to which the employer's business exposes the employee. The accident must be one resulting from a risk reasonably incident to the employment."

And after a full review of many authorities on the subject it was held that the injury to the claimant caused by the act of a fellow servant in "tickling" him while he was at work did not "arise out of" his employment. Such injuries have no connection whatever with the work the employee is doing at the time, or with the work the mischievous employee was engaged to do, or with any business carried on in the place of employment, or with any peculiar construction or characteristics of the place of employment for which the employer could be held responsible and which creates "a risk reasonably incident to the employment." All this is true of the case at bar. It is therefore to be decided in accordance with the same rule.

The award is annulled.

Shaw, Shurtleff, Wilbur, Sloane, and Lawlor, JJ., concur.

GREAT WESTERN POWER CO. OF CALIFORNIA v. INDUSTRIAL ACCIDENT COMMISSION ET AL. (S. F. 9758.)

(Supreme Court of California. Nov. 5, 1921.)

201 Pacific Reporter, 931.

MASTER AND SERVANT-EMPLOYEE'S INJURY BY FELLOW WORKMEN WRESTLING HELD NOT ONE “ARISING OUT OF EMPLOYMENT" WITHIN COMPENSATION ACT. Where a workman in the performance of his duties passed over a platform when two fellow workmen engaged in a friendly wrestling match accidentally fell on him and broke his leg, such injury did not arise out of his employment within Workmen's Compensation, Insurance, and Safety Act of 1917; no claim being made that the wrestling was habitual, or that the employer had any knowledge of the horseplay, or that it had any other characteristic which would make it a risk of the employment.

(For other cases, see Master and Servant. Dec. Dig. § 373.)

(For other definitions, see Words and Phrases, First and Second Series, Course of Employment.)

In Bank.

Proceedings under the Workmen's Compensation Act by E. S. Holbrook against the Great Western Power Company of California, Award allowed by the Industrial Accident Commission, and defendant brings certiorari. Award annulled.

Guy C. Earl, of San Francisco, for petitioner.

A. E. Graupner, of San Francisco, for respondents.

LAWLOR, J. This is a proceeding in certiorari on a petition by the Great Western Power Company of California, a corporation, to review the action of the respondent Industrial Accident Commission allowing an award against petitioner in favor of respondent E. L. Holbrook for injuries received by him while employed by petitioner.

Respondent Holbrook was employed by petitioner in the capacity of pumpman at Belden, Cal. While in the performance of his duties, he was walking from the toolhouse to a shaft or tunnel in which he was working. On his way to the shaft he passed over a board platform on which two fellow workmen were engaged in a friendly wrestling match. The scuffling was not caused by any dispute or altercation over the work or over anything connected with the employment, and respondent was not participating in it. The wrestlers accidentally fell on him and broke his left leg. He was incapacitated for two months, and applied to the Industrial Accident Commission for compensation under the Workmen's Compensation, Insurance, and Safety Act. A hearing was had by that body, and that it was found the respondent sustained injury occurring in the course of and arising out of his employment, and that he was entitled to a benefit of $160.69. Petitioner applied for a rehearing before the Industrial Accident Commission, which was denied. This petition followed.

Petitioner contends:

That "said Commission in rendering said decision and entering said award acted without and in excess of its powers, and that the order and decision are unreasonable, and that the findings of fact of the said Commission in said proceeding do not support the order, decision, or award here sought to be reviewed."

It insists that

"In the case at bar there are absolutely no facts or circumstances to take this case out of the general rule uniformly followed both in England and in the United States that injuries resulting from horseplay' among employees, whether the injured party is a participant or not, do not arise out of the employment.'

In support of this position are cited Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 Pac. 212, L. R. A. 1916F, 1164; Fishering v. Pillsbury, 172 Cal. 690, 158 Pac. 215.

"We frankly concede that the decision of the Commission is inconsistent with the ruling of this court in Coronado Beach Co. v. Pillsbury et al., 172 Cal. 682, 158 Pac. 212, L. R. A. 1916F, 1164, and Fishering v. Industrial Accident Commission, 172 Cal. 690, 158 Pac. 215, both cases being decided the same day. In view of the fact that these cases were early decisions upon the question of horseplay rendered in 1916, and before the doctrine was well established in other states, and that since that time the leading states upon the doctrine have taken the opposite view, so we take the liberty of urging upon the court a reconsideration of the views therein expressed." that, "where an employee is attending properly to his own work without diversion for purposes of horseplay. and is injured by the frolicking act of another employee, such injury, except in exceptional cases, may be said to arise out of the employment for the reason that the danger of ordinary frolicking by employees is a danger incident to every business which brings employees together in numbers;" and that "hazard due to the usual propensities of workmen being brought together in numbers for the purpose of employment should be the hazards insured against both to protect the individual and the community."

In support of this position respondents cite authorities from other jurisdictions decided since the above-mentioned cases. Petitioner, however, asserts that

"These last-mentioned cases have been cited with approval in a very large number of decisions from the highest courts of many of the states of the land. In the decisions referred to by respondents herein, which do not follow the foregoing cases, the court has had great labor to create and point out circumstances differentiating the cases from these two leading cases."

The Workmen's Compensation, Insurance, and Safety Act of 1917 (St. 1917, p. 834) provides :

"Liability for the compensation provided by this act, in lieu of any other liability, whatsoever to any person, shall, without regard to negligence, exist against an employer for any injury sustained by his employees arising out of and in the course of the employment.

Coronado Beach Co. v. Pillsbury, supra, is a case where an employee, who was particularly susceptible to tickling, while in the course of his employment was going downstairs when he was tickled in the ribs by another employee. As a result he fell down the stairs, sustaining injury. The court held he was not entitled to compensation, saying:

"The accidents arising out of the employment of the person injured are those in which it is possible to trace the injury to the nature of the employee's work or to the risks to which the employer's business exposes the employee. The accident must be one resulting from a risk reasonably incident to the employment. * **** In the matter at bar the employment of Flint exposed him to no greater danger from being tickled by a fellow servant than would a guest in the hotel of his employer have been so exposed."

In Fishering v. Pillsbury, supra, an employee, about 17 years of age, pointed a trick camera at another employee and caused a spring to be ejected from it. The spring struck the other in the eye. injuring him. The court held he was not entitled to compensation, on the authority of Coronado Beach Co. v. Pillsbury, supra.

Respondents rely chiefly upon two cases which follow the rule they ask us to adopt. One of these is Leonbruno v. Champlain Silk Mills, 229 N. Y. 470, 128 N. E. 711, 13 A. L. R. 522. In that case an employee, while engaged in the performance of his duties, was struck in the eye by an apple thrown by a fellow servant at another. The court, in upholding the award, said:

"Whatever men and boys will do, when gathered together in such surroundings, at all events, if it is something reasonably to be expected, was one of the perils of his service."

Another authority is Willis v. State Industrial Accident Commission, 78 Okl. 216, 190 Pac. 92, in which case an employee was, with several others warming himself by an open fire during an interval in his work, and was injured because of the explosion of a piece of dynamite which a fellow employee threw into the fire to see if it would explode. It was declared:

"We think the correct rule is, and so hold in these cases, that, if a workman is an active participant in what has been denominated 'horseplay,' he is not entitled to compensation, but if, while going about his duties, he is the victim of another's prank, to which he is not in the least a party, he should not be denied compensation.”

An authority similar to these is Verschleiser v. Stern, 229 N. Y. 192, 128 N. E. 126.

The other cases cited by respondents do not fully support the rule contended for by them. While in some of them compensation was awarded for injuries resulting from skylarking, in the cases where such compensation has been awarded special circumstances have appeared which made the skylarking peculiarly one of the risks of the employ

ment. In other cases the compensation was awarded for injuries received by employees as the result of altercations or quarrels, but in each of those cases the controversy had its origin in some misunderstanding or incident connected with the work. These cases decide that, while ordinarily compensation will not be allowed where injuries are caused by skylarking or are the result of a dispute between employees, yet an injury may be so caused and still be held to arise out of the employment. Thus, in the case of In re Loper, 64 Ind. App. 571, 116 N. E. 324, an employee, while going about his duties, was injured by another's sportive use of an air compressor. The injured employee was not participating in the horseplay. The evidence showed the compressor was habitually used in this way. The court declared:

* * *

"We are not dealing here with a sporadic, occasional, or unanticipated use of the air hose in play. The employer, with knowledge of the facts, permitted such practice to continue. It was within his power to have prohibited it. But failing to do so, it became an element of the conditions under which the employee was required to work.” A similar case was State v. District Court, 140 Minn. 75, 167 N. W. 283, L. R. A. 1918E, 502. There an employee was struck in the eye by a sash pin thrown by a fellow employee at another, not the injured workman. The injured employee was not engaging in the horseplay. It was customary for the employees to throw things at each other, and it was found that the employer knew or should have known of the custom. The court said:

"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. [Citing cases.] 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 of Filas' fellow workers and was a risk of the work as it was conducted."

In Mueller v. Klingman (Ind. App.) 125 N. E. 464, also cited by respondent, the deceased employee and a fellow employee were working together. The fellow worker became angered at a remark made by deceased concerning the doing of the work, and threw a hammer at him. striking him in the head. The injury inflicted caused his death. The court held that the injury arose out of the employment, basing the decision on Pekin Cooperage Co. v. Industrial Commission, 285 Ill. 31, 120 N. E. 530, and quoting from that case as follows:

"Where men are working together at the same work, disagreements may be expected to arise about the work, the manner of doing it, as to the use of tools, interference with one another, and many other details which may be trifling or important. Infirmity of temper, or worse, may be expected, and occasionally blows and fighting. When the disagreement arises out of the employer's work in which two men are engaged, and as a result of it one injuries the other, it may be inferred that the injury arose out of the employment."

Of the other cases cited by respondent Stuart v. Kansas City, 103 Kan. 307, 563, 171 Pac. 913, Marchiatello v. Lynch Realty Co., 94 Conn. 260, 108 Atl. 799, and Colucci v. Edison Portland Cement Company, 93 N. J. Law, 332, 108 Atl. 313, are similar to In re Loper, supra, and State v. District Court, supra. The others resemble Mueller v. Klingman. supra, and were decided on the theory that injury resulted from an al