Anderson v. Hotel Cataract
| Decision Date | 09 March 1945 |
| Docket Number | 8731. |
| Citation | 17 N.W.2d 913,70 S.D. 376 |
| Parties | ANDERSON v. HOTEL CATARACT et al. |
| Court | South Dakota Supreme Court |
Davenport, Evans & Hurwitz, of Sioux Falls, for appellants.
Louis H. Smith, of Sioux Falls, for respondent.
An employee of the Minnehaha Hotel Company died as the result of an assault by a co-employee. The father of the deceased claimed compensation under SDC 64.0402(1). The Industrial Commissioner concluded that the injury did not arise out of and in the course of the employment and denied compensation. The circuit court reversed the decision of the commissioner and remanded the claim with directions to enter findings and conclusions for the claimant. The employer and its insurer have appealed. For convenience we refer to the appellants as the employer.
The decedent Orvin Anderson, and Earl Painter, the workman who committed the assault, were employed by the employer at the Cataract Hotel in Sioux Falls, South Dakota, as engineers. The staff of engineers was made up of these two, and two others. It was their duty to operate the heating plant and generally to maintain and service the plumbing system and mechanical equipment of the hotel. The assault was committed at about 1:30 A.M. January 1st, 1943, in the basement of the hotel. The deceased had gone on duty at 6 p.m. the previous eventing to work a twelve-hour shift. Painter had worked the day shift, but had dropped in at the engine or boiler room. Shortly after 1 o'clock a third engineer, who had been directed to help deceased with the New Year's rush of work from midnight on, reported for duty. As he came a bellboy and two soldiers departed. With this preface, we turn to the findings of the commissioner for a statement of the facts surrounding the assault.
'That after departure of said bellboy and said two soldiers, and during the interval aforesaid, there occurred a conversation in which said Orvin Elroy Anderson and said Painter participated, which conversation related to certain phases of the work of said engineers; that said Painter made a disparaging remark about the ability of the said Orvin Elroy Anderson for such work, and to the effect that said Orvin Elroy Anderson did not know much about his work; that said Orvin Elroy Anderson made a statement to the effect that said Painter did not seem to think that he, the said Orvin Elroy Anderson knew much about such work, and that he, the said Orvin Elroy Anderson, was going to quit and go home; that the said Painter in substance and effect responded that the said Orvin Elroy Anderson was not going to go home and that he, the said Painter did not propose to work the balance of the night; that the said Orvin Elroy Anderson nevertheless insisted that he was going to go home and went to a locker and secured from such locker, his, the said Orvin Elroy Anderson's coat; that said locker was one of several lockers in said engine room, there being one for each of such engineers and being used by said engineers to leave clothing when changing back and forth from street clothes to working clothes; that upon obtaining such coat the said Orvin Elroy Anderson started to put on the same and while in the process of so doing was assaulted by the said Painter, who inflicted blows about the head of the said Orvin Elroy Anderson; that said Orvin Elroy Anderson fled from said assault and was pursued by said Painter to another room nearby; that said assault by the said Painter and the said blows inflicted therein caused the death of the said Orvin Elroy Anderson, which occurred within a few minutes after said blows were inflicted.
'That it was the intention and purpose of said Orvin Elroy Anderson in going to his locker and obtaining his coat as aforesaid to abandon his employment for his said Employer and to depart from said work.
'That at the time of said argument between the said Orvin Elroy Anderson and said Painter the said Painter was not at his work for said Employer and said assault did not occur at any time while the said Painter was supposed to be at any work for said Employer; that the said Painter at the time of said argument and said assault was merely visiting in said engine room and was not on or about said premises in connection with any duty to said Employer.
'That there was no causal connection between said employment of said Orvin Elroy Anderson by his said Employer and the said injury and said death of the said Orvin Elroy Anderson; that said assault by said Painter was not caused by said discussion with reference to said work; that the said assault on the part of the said Painter was motivated by the said Orvin Elroy Anderson's announced intention of quitting his work and the aforesaid positive steps on the part of the said Orvin Elroy Anderson so to do; that it was no part of the duty of the said Painter to said Employer to prevent said Orvin Elroy Anderson from leaving such work; that said Painter at said time was not in the position of an Employee but in the position of a stranger.'
An injury for which compensation may be awarded under the Workmen's Compensation Act is defined as 'only injury by accident arising out of and in the course of the employment, * * *.' SDC 64.0102(4). That the injury suffered by deceased was 'by accident' is conceded. It was a harm received on a single occasion which the workman did not expect. See Johnson v. La Bolt Oil Co., 62 S.D. 391 252 N.W. 869; Fenton v. Thorley & Co., Ltd., A.C. 443, 5 W.C.C. 1; Kelly v. Trim Joint District School, [1914] A.C. 667, 111 L.T., N.S., 306, 30 Times L.R. 452, Ann.Cas.1915A, 104. Neither does the employer question that in certain circumstances an injury through assault by another employee of the employer falls within the cited definition. 71 C.J. 685; City of Chicago v. Industrial Commission, 292 Ill. 406, 127 N.E. 49, 15 A.L.R. 588; 21 A.L.R. 758; Peavy v. C. W. Merydith Contracting Co., 112 Kan. 637, 211 P. 1113, 29 A.L.R. 437; Anderson v. Security Bldg. Co., 100 Conn. 373, 123 A. 843, 40 A.L.R. 1122; Boek v. Wong Hing, 180 Minn. 470, 231 N.W. 233, 72 A.L.R. 110; and Scholl v. Industrial Commission, 366 Ill. 588, 10 N.E.2d 360, 112 A.L.R. 1258.
The first contention is that the undisputed facts do not warrant a legal conclusion that decedent suffeed an injury 'arising out of' his employment. In arguing that the evidence fails to establish the requisite causal relation between the injury and the employment, the employer looks to the immediate circumstances and points out that (1) the quarrel did not involve a difference over the performance of a duty to the employer; it resulted because decedent was deserting his post; (2) an existing work problem was not involved; the discussion was about the capabilities of the decedent; (3) the participants in the altercation were workmen of equal rank; and (4) the assault was by one who, because not then on duty, occupied the position of a stranger to the employment. We have concluded that, looking beyond the facts urged by the employer, a rational mind can trace the injury to a risk inherent in the employment, and consequently, within the legislative contemplation, it arose from the employment.
In a recent case dealing with an assault made upon an employee while in the course of his employment under circumstances excluding every other motive but robbery, in writing for the Minnesota court, the late Mr. Justice Stone said:
'It is significant that in defining compensable accident the workmen's compensation law makes no mention of cause or causation as such. Impliedly, it thereby rejects or at least modifies the standard of proximate causation determinative in tort litigation. Therefore, care must be exercised lest long judicial habit in tort cases allows judicial thought in compensation cases to be too much influenced by a discarded or modified factor of decision.
'It is apparent that the new standard 'arising out of and in the course of' employment does not require that the latter be the proximate cause of injury. If the legislature had meant that, it would have said so. The words, 'in the course of' impose a requirement in respect to time and place. The phrase 'out of' expresses a factor of source or contribution rather than cause in the sense of being proximate or direct.
'Because of the intervening wrongful act of third parties or some such extrinsic contribution, the employment may not be the proximate cause. But it may be nonetheless so much (the) source of the event that the latter in a very real and decisive sense arises out of the employment, much as a plant arises from...
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