Torosian v. Industrial Accident Commission & Benjamin Higashi

BARNARD, P. J.

Petitioners seek to have annulled an award of the Industrial Accident Commission in favor of respondent Benjamin Higashi.

Higashi, with another employee of the petitioners, was assisting one of the petitioners in washing the wheels of a truck preparatory to repainting the same. In doing this work a small can of gasoline had been used and small quantities of gasoline had been spilled on the pavement. When they were about through with this work Higashi offered the other employee a cigarette and took one himself. He struck a match, lit the other cigarette and then lit his own. While lighting the other cigarette Higashi drew the match slightly away so that the other employee had to follow the flame in order to get a light. Shortly thereafter the other employee punched Higashi in a friendly way and Higashi punched or shoved back in the same spirit. At some time during this proceeding Higashi dropped the match, which ignited the gasoline on the pavement and the flame spread. Higashi kicked over the quart can of gasoline thereby splashing portions of it on his trousers which ignited and burned him, causing the injuries in question.

The respondent Commission found that the injuries to Higashi arose out of and in the course of his employment and made a special finding as follows: “Although the ap

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plieant and a co-worker had, immediately preceding said injury, engaged in playful acts, said injury was not proxim'ately caused by said playful acts, but it, the said injury, was proximately caused by the applicant’s discarding of a burning, or partially burning match, with which he, the applicant, had lit a cigarette for himself and said co-worker, which match fell to the ground and ignited gasoline, which ■gasoline had fallen there while the applicant and said coworker were doing work in the course of their employment.” The petitioners contend that these finding's are entirely without support in the evidence and that it conclusively appears that Higashi suffered these injuries as a result of his own “skylarking” or “horseplay” and that, therefore, the injury did not arise out of- and in the course of his employment.

Petitioners particularly rely on the case of

Dalsheim