Heskett v. Fisher Laundry & Cleaners Co.
| Decision Date | 22 May 1950 |
| Docket Number | No. 4-9205,4-9205 |
| Citation | 217 Ark. 350,230 S.W.2d 28 |
| Parties | HESKETT v. FISHER LAUNDRY & CLEANERS CO., Inc. |
| Court | Arkansas Supreme Court |
Dinning & Dinning, Helena, for appellant.
Cracraft & Cracraft, Helena, for appellee.
Appellant, Leon Heskett, brought this action against appellee, Fisher Laundry & Cleaners Co., a corporation, and J. B. Fisher to recover damages, actual and exemplary, for injuries alleged to have been suffered by reason of a vicious, intentional, unprovoked and premeditated assault committed upon appellant by the said J. B. Fisher while acting as an officer and general manager of the corporation.
Appellant alleged that at the time of the assault he was engaged in his regular work as an employee of the defendant company and that J. B. Fisher was engaged in the discharge of his duties as general manager of the corporation; that appellant was prevented by reason of the assault from performing the duties of a laborer for a period of three weeks; and that he had suffered excruciating mental and physical pain and great humiliation on account of the assault which was committed in the presence of fellow employees and other persons. The complaint contained a prayer for actual damages in the sum of $5,000.00 and for exemplary damages in a like sum.
Appellee and J. B. Fisher answered with a general denial and stated that appellant's injuries, if any, resulted from his unjustified attack upon J. B. Fisher who acted in self defense and to protect his employer's property. In an amendment to the answer appellee alleged that it carried workmen's compensation insurance and that appellant was subject to the provisions of the Workmen's Compensation Act which was pleaded as a defense to the action. The trial court treated the amendment to the answer as a demurrer to the jurisdiction of the court which was sustained as to appellee and overruled as to the defendant, J. B. Fisher. Appellant elected to stand on the complaint as to the action against the corporation and this appeal is prosecuted from the judgment dismissing the cause of action against appellee.
The questions for determination are: whether a wilful and malicious injury inflicted by the officer and general manager of the employer upon the employee is comprehended within the provisions of the Workmen's Compensation Act; and, if so, whether the Act affords an exclusive remedy to the injured employee.
The compensation acts of many states contain provisions specifically preserving the ordinary remedies at law for injuries resulting to employees from the employer's wilful act or misconduct. 58 Am.Jur. Workmen's Compensation, Sec. 54. In some states the Act provides for an increase in compensation in case of the wilful misconduct of the employer. 4 Mass. Ann.Laws, Ch. 152, Sec. 28; Deering's Calif. Labor Code, Secs. 4553. Our compensation act, like those in many other states, contains no specific provision as to right of recovery for injuries sustained by wilful and intentional acts of the employer. Sec. 2(d) of the Ark. Workmen's Compensation Act, 1949 Cumulative Pocket Supp.Ark.Stats.1947, Secs. 81-1301 to 81-1349, defines 'injury' as meaning only accidental injury arising out of and in the course of employment, including occupational diseases and infections. Sec. 81-1303 provides that the act shall apply only to claims for injuries and death based upon accidents which occur from and after the effective date of the act.
Sec. 81-1304 provides: 'The rights and remedies herein granted to an employee subject to the provisions of this Act, on account of injury or death, shall be exclusive of all other rights and remedies of such employee, his legal representative, dependents, or next kin, or anyone otherwise entitled to recover damages from such employer on account of such injury or death, except that if an employer fails to secure the payment of compensation, as required by the Act, an injured employee, or his legal representative, in case death results from the injury, may, at his option, elect to claim compensation under this Act or to maintain a legal action in court for damages on account of such injury or death. * * *'
Sec. 81-1305 provides: 'Every employer shall secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of employment, without regard to fault as a cause for such injury; provided, that there shall be no liability for compensation under this Act where the injury or death from injury was solely occasioned by intoxication of the injured employee or by wilful intention of the injured employee to bring about the injury or death of himself or another. * * *'
In order to sustain the judgment appellee contends that the fact that the injury is the result of a wilful assault on the employee does not prevent it from being 'accidental' within the meaning of the act. This contention is in accord with the general rule which we approved in the case of Hagger, Adm'x, v. Wortz Biscuit Co., 210 Ark. 318, 196 S.W.2d 1. Appellee says the question involved here is determined by our holding there. That case involved a suit against a company and a fellow employee of the deceased for gross negligence in the storing of gasoline in glass containers and underground tanks which allegedly caused an explosion and fire resulting in the employee's death. While the complaint in that case alleged that the fellow employee wilfully and recklessly stored the gasoline, the case did not involve wilful and malicious injury by assault such as is alleged in the instant case.
The effect of our holding in the Hagger case, supra, is that the remedy afforded the employee under the compensation act is exclusive where injury or death results from gross negligence of the employer or a fellow employee. We adhere to that rule and also to the statement in that case to the effect that an injury may be the result of 'accidental' means under the statute so as to be compensable notwithstanding the act producing the injury was intentional. In Lundell v. Walker, 204 Ark. 871, 165 S.W.2d 600, we upheld an award by the compensation commission...
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...intentional tort test requiring an actual intent to injure. The case law in Arkansas is illustrative. In Heskett v. Fisher Laundry & Cleaners Co., 217 Ark. 350, 230 S.W.2d 28 (1950), the Arkansas Supreme Court allowed an employee to bring a civil action for intentional tort against his empl......
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