Hodges

Petitioner (applicant) seeks review of an order of the Workers' Compensation Appeals Board (Board) denying reconsideration of a decision by the judge that applicant's injury did not arise out of and occur in the course of his employment. This court denied applicant's petition for writ of review without opinion. On applicant's petition, the California Supreme Court granted hearing and retransferred the case to this court with directions to issue a writ of review. The writ issued as directed.

The pertinent facts will be stated in our discussion of the several contentions.

First, applicant contends the finding that his injury did not arise out of and occur in the course of his employment (Lab. Code, § 3600) is not supported by substantial evidence on the whole record. (Lab. Code, § 5952; Lamb v. Workmen's Comp. Appeals Bd., 11 Cal.3d 274, 281 [ 113 Cal. Rptr. 162 , 520 P.2d 978 ]; Garza v. Workmen's Comp. App. Bd., 3 Cal.3d 312, 317 [ 90 Cal. Rptr. 355 , 475 P.2d 451 ].) The contention is without merit and is based on a view of the evidence not only most favorable to applicant but, in part, finding no support in the record.

Applicant, 61 years of age, had…

Petitioner (applicant) seeks review of an order of the Workers’ Compensation Appeals Board (Board) denying reconsideration of a decision by the judge that applicant’s injury did not arise out of and occur in the course of his employment. This court denied applicant’s petition for writ of review without opinion. On applicant’s petition, the California Supreme Court granted hearing and retransferred the case to *898 this court with directions to issue a writ of review. The writ issued as directed.

The pertinent facts will be stated in our discussion of the several contentions.

First, applicant contends the finding that his injury did not arise out of and occur in the course of his employment (Lab. Code, § 3600) is not supported by substantial evidence on the whole record. (Lab. Code, § 5952; Lamb v. Workmen’s Comp. Appeals Bd., 11 Cal.3d 274, 281 [ 113 Cal.Rptr. 162 , 520 P.2d 978 ]; Garza v. Workmen’s Comp. App. Bd., 3 Cal.3d 312, 317 [ 90 Cal.Rptr. 355 , 475 P.2d 451 ].) The contention is without merit and is based on a view of the evidence not only most favorable to applicant but, in part, finding no support in the record.

Applicant, 61 years of age, had been employed…

I respectfully dissent. In my opinion, the result reached by the majority is neither compelled nor just.

The only Supreme Court decision applying the horseplay rule to deny compensation for an injuiy sustained by a participant is Dalsheim v. Industrial Acc. Com. (1932) 215 Cal. 107 [ 8 P.2d 840 ]. Although Dalsheim has never been overruled, its precedential value has been rendered uncertain by the fact that the cases it relied upon were all overruled by the court in Pacific Emp. Ins. Co. v. Ind. Acc. Com. (1945) 26 Cal.2d 286 [ 158 P.2d 9 , 159 A.L.R. 313 ], (Joshua Hendy Iron Works v. Ind. Acc. Com. *907 (1946) 74 Cal.App.2d 191, 197-198 [ 168 P.2d 203 ]; City and County of San Francisco v. Industrial Accident Commission (1948) 13 Cal.Comp.Cases 20 (writ den.).) The court disapproved the nonparticipants cases on which Dalsheim had relied on the ground that they ignored the realities of industrial life and the “propensities and tendencies of mankind and the ordinary habits of life . . . that wherever human beings congregate, either at work or at play, there is some frolicking and horseplay.” (Id., at p. 294.) By citing but not overruling Dalsheim , the court in Pacific Emp. Ins.…