Just as an aimless stroll can allow you to find a new perspective on a project, casually browsing Readex’s Archive of Americana can lead to serendipitous discoveries. What began as an investigation of nautical terminology, specifically the term “skylarking,” ended by shedding light on several amusing judicial opinions reprinted in the U.S. Congressional Serial Set.

Originally, skylarking described the antics of sailors who climbed about their ship’s rigging and slid down its backstays for fun. The ancient word "lac" means "to play" and because the frolicking of these deckhands started high in the masts, the term "skylacing" was born. Over time the word changed to "skylarking" and was used to refer to horseplay in general.

At first, skylarking wasn’t used pejoratively. For sailors with free time, this boisterous activity was considered a better diversion than engaging in mutinous talk. However, by the mid-19th century skylarking in the U.S. Navy became an offense punishable by the lash. The term first appears in the Serial Set in the 1849 publication, “Report of the Secretary of the Navy, with returns of punishments in the Navy.”1 The punishment for skylarking was comparable to that given for disobedience of orders, fighting, taking grog, skulking, or drunkenness: three to ten “lashes with cats.”

By the early 20th century, the term “skylarking” began to appear in the Serial Set’s “Bulletin of the U.S. Bureau of Labor Statistics” to describe mischief and misbehavior in the industrial workplace. For example, the 1921 Nebraska Supreme Court decision, Socha v Cudahy Packing Co., categorized the “sportive use of compressed air”2 as skylarking. “Sportive” is putting it mildly. According to the “Bulletin,” Mr. Socha’s work “required a stooping position. While engaged at this work a fellow employee applied the compressed air hose against his person.”3 

My interest in nautical terminology—the focus of my original Serial Set search—began to drift away as the Nebraska court continued,

…the very fact that injuries of this nature…under like circumstances, have been before the courts in a number of cases is worthy of note. Such a combination of elements seems to present a situation attractive and suggestive to a youthful, or to a rude and untutored, mind having no knowledge of the serious or fatal consequences liable to result.4

I’m not sure how many cases constitute “a number of” but certainly prior cases can be found in the Serial Set here5 and here6. Any lingering curiosity I had about nautical terminology was now replaced with an entirely fresh set of questions. What else did the courts categorize as skylarking, horseplay, or practical joking? And were the victims covered by the Workmen’s Compensation Act of 1916?

A section of the “Bulletin” titled “Pranks on Fellow Servants” describes the particularly jolting 1920 Kansas Supreme Court case, White v Kansas City Stockyards Co. Mr. White suffered a severe shock and other injuries after his coworkers “attached a highly charged electric wire to an iron door through which White would have to pass on leaving the place. This form of joke had been practiced a number of times previously on other employees.”7 Mr. White’s eligibility for compensation hinged on whether his superior was aware of the “prank.”  Judge Dawson’s opinion not only found the employer liable but also aptly described the electrified door:

It is true that this foreman had no general authority, but he was the person [the] plaintiff had to obey while in the defendant’s employment. To that extent he was a foreman, and his knowledge of the electrical mantrap on the door was notice to his principal.8

Just as I was reflecting on the phrase “electrical mantrap,” I found the curious case of Harry Flint in a section of the “Bulletin” ominously titled, “Playful Assault by Fellow Workman.” The specifics of Mr. Flint’s case are not exceptional, but an ironic choice of words caught my eye. In the 1916 California Supreme Court decision, Coronado Beach Co. et al. v Pillsbury et al., the court stated, “Flint was particularly susceptible to tickling.”9 When his case was cited five years later, although he was not mentioned by name, he was again described as “a man who was known to be peculiarly susceptible of being tickled.”10 This raises the question, was Harry Flint the original Pillsbury Doughboy?

Were it not for the Readex digital U.S. Congressional Serial Set I never would have known state Supreme Court justices concerned themselves with matters as weighty as one’s susceptibility to tickling. Nor would I have become aware of the California court’s position on frolicking, as stated in Federal Mutual Liability Insurance Co. v Industrial Accident Commission of California et al. The larger issue was whether an injury caused by skylarking was in the course of employment. In this case, the injury occurred when Gus Farsais was struck in the eye by a grape thrown by a coworker at a third party. The court rejected the argument “that in every establishment where a number of workmen are required to be near each other in the course of their employment for hours at a time ‘some frolicking is inevitable.’”11

However, the most amusing judicial opinions I found while exploring the “Bulletin of the U.S. Bureau of Labor Statistics” in the Serial Set did not pertain to a case of skylarking at all. It addressed whether an employee could be awarded compensation if he was unintentionally intoxicated. Wisconsin Supreme Court Judge Timlin delivered the opinion of the court, saying, in part: 

It is quite possible for a person to be in an intoxicated condition which condition proximately caused the accident which proximately caused the death and yet not be guilty of willful misconduct. The drinking of intoxicating liquor is willful in the sense of intentional, but the mere fact of drinking is not misconduct. By section 1561 any person found in any public place in such a state of intoxication as to disturb others, or unable by reason of his condition to care for his own safety or for the safety of others, is guilty of a misdemeanor. This is misconduct and if one intentionally put himself in this condition he might be said to be guilty of willful misconduct. But there are many cases where although the drinking is intentional the intoxication is not, as for instance where one by reason of fatigue, hunger, sickness, or some abnormal condition becomes intoxicated in consequence of imbibing a quantity of liquor which ordinarily would not so affect him. While intoxication in such case to the degree specified might be a misdemeanor under the statute quoted it is not necessarily willful misconduct within the compensation act. The intoxication might under such circumstances be the proximate cause of an accident resulting in injury or death and yet not have reached that degree specified in this statute as in the case where it produced mere drowsiness.

There was evidence in the instant case that deceased was slightly intoxicated, that he drove out of the clay pit standing up on his load, that he was perfectly able to take care of himself and drive his team when last seen alive. There was, therefore, room to find upon the evidence not only with respect to the degree of intoxication, but that there was no intention or purpose to put himself in a dangerous or helpless condition of intoxication. The industrial commission has jurisdiction to pass on these very questions, and their finding above referred to does determine those questions. It finds that Smith was in an intoxicated condition which proximately caused the accident but the accident was not caused by willful misconduct. This means that he did not willfully bring upon himself such degree of intoxication.

If we were authorized to review the evidence we might come to a different conclusion.12

 A different conclusion indeed, in his dissenting opinion Judge Barnes pulled no punches, saying:

The plain unvarnished tale in this case is that Smith, an habitual toper, left work, went to a saloon some distance from his place of employment, got a partial “jag” on, started back with a bottle of whisky, and got so drunk that thereafter, while he was driving his team over a smooth road, he fell off the wagon and broke his neck. The commission did not find that the deceased got drunk by accident. There was no evidence in the case to warrant any such finding…

It was not found that the deceased got drunk on an unusually small allowance of liquor because of sickness, hunger, or any other reason. Such a finding would totally lack support in the evidence. Where a party accustomed to the use of liquor drinks until he gets drunk, the presumption is that he intended to just what he did do. It was for the claimant to show by some facts or circumstances that for some reason or other the deceased drank less liquor than was ordinarily necessary to produce stupefaction in the instant case. No evidence was produced. I think the circuit court was clearly right in the holding that there could be no recovery, and that the commission would have reached the same conclusion had it construed the law as the circuit court did and this court does.13

Who would have guessed a workers’ compensation award would hinge on whether the worker’s intoxication was intentional or not?  Or even that judicial decisions of workers’ compensation cases would be nearly so intriguing for that matter? Clearly impromptu browsing can be entertaining but it can also be thought provoking and lead to further investigations of subjects one may not have previously considered exploring. Whether you are a student or scholar at the end of a long day of focused research, entertain your curiosity, explore the U.S. Congressional Serial Set, and experience the joy of discovery.

Notes

1 Serial Set Vol. No. 531, Session Vol. No.3, 30th Congress, 2nd session, S.Exec.Doc. 23, “Report of the Secretary of the Navy, with Returns of Punishments in the Navy”, February 6, 1849, p. 213, 214, 228.
2 Serial Set Vol. No. 8061, Session Vol. No.73, 67th Congress, 2nd session, H.Doc. 365. “Decisions of Courts and Opinions Affecting Labor, 1921”, p. 307.
3 Ibid. 
4 Ibid.
5 Serial Set Vol. No. 7289, Session Vol. No. 24, 65th Congress, 1st session, H.Doc. 268, “Decisions of Courts Affecting Labor: 1916”, p. 319.
6 Serial Set Vol. No. 7542, Session Vol. No.73, 65th Congress, 3rd session, H.Doc. 1425, “Decisions of Courts Affecting Labor: 1917”, p. 245.
7 Serial Set Vol. No. 8064, Session Vol. No.76, 67th Congress, 2nd session, H.Doc. 272, “Decisions of Courts and Opinions Affecting Labor, 1919-1920”, p. 402.
8 Ibid, p. 403.
9 Serial Set Vol. No. 7289, Session Vol. No. 24, 65th Congress, 1st session, H.Doc. 268, “Decisions of Courts Affecting Labor: 1916”, p. 308.
10 Serial Set Vol. No. 7869, Session Vol. No. 75, 66th Congress, 3rd session, H.Doc. 837, “Workmen’s Compensation Legislation of the United States and Canada”, 1921, p. 181.
11 Serial Set Vol. No. 8061, Session Vol. No. 73, 67th Congress, 2nd session, H.Doc. 365, “Decisions of Courts and Opinions Affecting Labor, 1921”, p. 306.
12 Serial Set Vol. No. 6725, Session Vol. No. 128, 63rd  Congress, 2nd session, H.Doc. 1054, “Decisions of Courts and Opinions Affecting Labor, 1913”, p. 216-217.
13 Ibid, p. 217.