Industrial Com'n v. Strome

• Decision Date: 25 November 1940
• Docket Number: 14809.
• Citation: 108 P.2d 865,107 Colo. 54
• Parties: INDUSTRIAL COMMISSION et al. v. STROME.
• Court: Colorado Supreme Court

108 P.2d 865

107 Colo. 54

INDUSTRIAL COMMISSION et al. v. STROME.

No. 14809.

Supreme Court of Colorado

November 25, 1940

Rehearing Denied Jan. 6, 1941.

In Department.

Error to District Court, City and County of Denver; Stanley H Johnson, Judge.

Proceeding under the Workmen's Compensation Act by Neil H. Strome claimant, opposed by the Evergreen Amusement Company employer, and the State Compensation Insurance Fund, insurer. An award of the Industrial Commission denying claim was reversed by the district court, and the employer and insurer bring error.

Reversed and remanded.

Byron G. Rogers, Atty. Gen., and Frank A. Bruno, Asst. Atty. Gen for Industrial Commission.

Harold Clark Thompson and Louis Schiff, both of Denver, for plaintiffs in error State Compensation Ins. Fund and Evergreen Amusement Co.

Thomas K. Hudson, of Denver, for defendant in error.

BURKE Justice.

Plaintiffs in error are hereinafter referred to as the Commission, the Fund, and the Company, respectively, and defendant in error as Strome.

This is a Workmen's Compensation case. Strome made claim for an injury inflicted by another employee of the company. The defense was that the injury did not arise out of the employment. The referee found for Strome but the Commission entered an award against him. The court reversed that award and ordered compensation. To review that judgment this writ is prosecuted.

While discharging his duty as an employee of the Company, Strome, in a stooping position attending to a hot water heater, was struck on the head by a shovel wielded by a fellow employee. He protested ignorance of the cause of the assault, and the record discloses no motive. It is undisputed that the injury arose 'in the course of' the employment. The sole question is, Did it 'arise out of' it?

Numerous authorities for affirmance and reversal are cited, but despite valiant and laudable attempts to reconcile and distinguish them we think they are in conflict. The general rule, with the reasoning supporting it, seems thus fairly stated:

'Ordinarily assault by coemployees cannot be considered as incidental to the employment; and so an injury to an employee assaulted by a fellow workman does not generally arise 'out of the employment'.' Here follow illustrations.

'Injuries resulting from an assault may, however, be found to arise out of or in the course of the employment where the assault is one which might be reasonably anticipated because of the general character of the work, or of the particular duties imposed on the workman.' Here follow illustrations.

'Such cases necessarily present close questions of fact, however, and it has been held that, where the dispute was about a past event and had no relation to, or connection with, the present work or present conditions, the injury was not compensable.' 71 C.J. § 432 (h) p. 685.

'The burden is on the plaintiff to reasonably satisfy the trial court that the accident arose out of and in the course of the workman's employment, * * *.' Ex parte Coleman, 211 Ala. 248, 100 So. 114, 115; Madden's Case, 222 Mass. 487, 495, 111 N.E. 379, L.R.A.1916D, 1000.

The rule is probably supported by the weight of authority but, be that as it may, it is the rule adopted in this jurisdiction.

'We must first find that the accident originated in a risk peculiar to the employment, and that there is a...