Johnson v. Safreed

• Decision Date: 20 December 1954
• Docket Number: No. 5-528,5-528
• Parties: Willie JOHNSON, Appellant, v. Joe SAFREED et al., Appellee.
• Court: Arkansas Supreme Court

Page 545

273 S.W.2d 545

224 Ark. 397

Willie JOHNSON, Appellant, v. Joe SAFREED et al., Appellee.

No. 5-528.

Supreme Court of Arkansas.

Dec. 20, 1954.

Franklin Wilder and Ragon & Morgan, Ft. Smith, for appellant.

Rose, Holland, Holland & Smith, Ft. Smith, for appellees.

MILLWEE, Justice.

This is an appeal from a judgment of the Sebastian Circuit Court affirming an order of the Workmen's Compensation Commission denying a claim for compensation made by the appellant, Willie Johnson, against appellee Joe Safreed, and his insurance carrier.

Appellant and Marcellus 'Red' Deloney worked for Safreed Construction Company which is owned and operated by Joe Safreed and engaged in the business of constructing street and highway curbs and gutters. Both appellant and Deloney were employed as common laborers, neither being authorized to act as foreman or supervisor though Deloney had been working for the company for about 9 years while appellant had only been so employed for 4 or 5 months on September 21, 1953. On that date Safreed's Company was engaged in constructing curbing on a certain street in the City of Ft. Smith. Safreed, as was his custom, was working along with his employees and was the sole foreman or supervisor on the job. He assigned to Deloney and two other workmen the job of grading between forms as they were set in place. It was necessary that more dirt be moved to the place where the grading was being done. Appellant and another laborer were hauling the dirt in wheelbarrows from a stock pile several hundred feet away. On one such load Deloney directed appellant to put the dirt at a certain place but he chose to dump it at another spot and a spirited argument insued. The two were cursing and threatening to kill each other as Safreed walked up. Safreed decided that one of them had to be discharged and determined that it should be the appellant because of Deloney's seniority. He told appellant they were going to town and started to the truck with appellant following when the latter turned to Deloney, grabbed him by the collar with one hand and at the same time struck him a very light blow on the shoulder with the other hand or fist. Safreed intervened, took appellant by the arum and they were walking to the truck when Deloney struck appellant in the head with a pick inflicting the injury for which he sought compensation.

It was further shown that Deloney was in the habit of attempting to 'boss' his fellow laborers who resented such unauthorized assertions by him. Appellant also testified that he feared that Safreed might fire him if the latter noticed that appellant was taking orders from Deloney rather than Safreed who gave all orders in connection with the work. Appellant also stated that his reason for grabbing and striking Deloney was that the latter, at the time, had raised his pick off the ground in a threatening manner and appellant feared and thought that Deloney was about to strike him. It was also shown that about two months previously Deloney had threatened appellant with a pick when he refused to carry out certain orders given by Deloney in connection with the work which were contrary to those given by Safreed.

Appellant's claim for compensation was heard by one Commissioner who found that he was not entitled to recover because: (1) Appellant was the aggressor in the affray; and (2) his injury did not arise out of and in the course of his employment. This conclusion was sustained by the full Commission and affirmed by the Circuit Court.

We first consider appellees' insistence that appellant had been discharged and was no longer employed by Safreed at the time of his injury. We have held that the period between discharge and injury must be somewhat longer than the minute, or less, involved in the instant case. In Lundell v. Walker, 204 Ark. 871, 165 S.W.2d 600, 603, the discharge and assault occurred before working hours and off the work premises, but in allowing a recovery we said, 'the period between dicharge and death was too transitory to justify the claim that Walker was not an employe when shot.' In that case we also approved the rule followed in nearly all jurisdictions by rejecting the contention that no injury sustained by a participant in an assault is compensable.

It might reasonably be said that the difficulty between appellant and Deloney had its inception in the latter's disposition to 'boss' his fellow employees, and that any aggression on appellant's part had ceased at the time he was assaulted with the pick. However, since it is undisputed that appellant struck the first blow, we cannot say there is no substantial evidence to support the Commission's finding that he was the aggressor in the affray.

Now it is undisputed that the ill feeling and altercation between appellant and Deloney occurred because of the work relations, while at work and as a direct consequence of the manner and method in which the work was being done. Hence the controlling legal issue is whether a so-called 'aggressor' in a work-connected fight or altercation may recover workmen's compensation for injuries received in the altercation. We have never passed on the precise question and there is much conflict in the decisions in those jurisdictions where the issue has been decided. The word 'aggressor' does not appear in our compensation statute. The Compensation Acts of most states contain a provision similar to Ark.Stats. § 81-1305, which 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. * * *'

Until recently a majority of jurisdictions that had passed on the question refused compensation to an aggressor even though the dispute was work-connected. Some of the cases which apparently still support this view are: Kimbro v. Black & White Cab Co., 50 Ga.App. 143, 177 S.E. 274; Fischer v. Industrial Comm., 408 Ill. 115, 96 N.E.2d 478; Merkel v. T. A. Gillespie Co., 162 A. 250, 10 N.J.Misc. 1081; Vollmer v. City of Milwaukee, 254 Wis. 162, 35 N.W.2d 304; and Wilkerson v. Industrial Comm., 71 Utah 355, 266 P. 270.

However, commencing with the opinion by Judge Rutledge in Hartford Accident & Indemnity Co. v. Cardillo, 72 App.D.C. 52, 112 F.2d 11, certiorari denied 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415, various courts began to re-examine their position and adopt the view that aggression of the claimant, without more, would not bar recovery for an injury sustained in a work-connected dispute. During the past few years the trend of the cases in line with this holding is such that it may now be said that a majority of the jurisdictions which have examined the issue favor the proposition that aggression does not bar recovery. Some of these cases are: Newell v. Moreau, 94 N.H. 439, 55 A.2d 476; Dillon's Case, 324 Mass. 102, 85 N.E.2d 69; Stulginski v. Waterbury Rolling Mills Co., 124 Conn. 355, 199 A. 653; Myszkowski v. Wilson & Co., 155 Neb. 714, 53 N.W.2d 203; State Compensation Insurance Fund v. Industrial Acc. Comm., 38 Cal.2d 659, 242 P.2d 311; Petro v. Martin Baking Co., 239 Minn. 307, 58 N.W.2d 731; Commissioner of Taxation & Finance v. Bronx Hospital, 276 App.Div. 708, 97 N.Y.S.2d 120. Other cases pointing in the same direction are: Traders & General Ins. Co. v. Mills, Tex.Civ.App., 108 S.W.2d 219; Haas v. Brotherhood of Transportation Workers, 158 Pa.Super. 291, 44 A.2d 776; Rothfarb v. Camp Awanee Inc., 116 Vt. 172, 71 A.2d 569; Brown v. Vacuum Oil Co., 171 La. 707, 132 So. 117; Mutual Implement & Hardware Ins. Co. v. Pittman, 214 Miss. 823, 59 So.2d 547; York v. City of Hazard, 301 Ky. 306, 191 S.W.2d 239, 241; Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 128 N.E. 711, 13 A.L.R. 522. See also, Horovitz, Modern Trends in Workmen's Compensation, 21 Ind.Law Journal 534; 9 N.A.C.C.A.L.J. 65-66; 10 N.A.C.C.A.L.J. 76-77; 11 N.A.C.C.A.L.J. 33-34.

In Newell v. Moreau, supra [94 N.H. 439, 55 A.2d 479], the statute provided that the employer should not be liable for an injury caused in whole or in part by, "intoxication, violation of law, or serious or wilful misconduct of the workman." In allowing recovery where claimant was the aggressor, the court refused to read the defense of 'aggression' into the statute saying:

'In determining whether the assault is serious or wilful within the meaning of the statute, we consider the misconduct and not the result. The misconduct must be grave and not trivial. Here, as in Maltais v. Equitable Life Assurance Society, supra [93 N.H. 237, 40 A.2d 837], we hold that a simple assault or a battery is not serious or wilful misconduct within the meaning of the Workmen's Compensation Law.'

In Dillon's Case, supra [324 Mass. 102, 85 N.E.2d 71], the Massachusetts court said:

'The striking of the first blow is not the sole and ultimate test as to whether the injury arose out of the employment. We think it is possible for an injury to arise out of the employment in the broad sense of the workmen's compensation taw * * * even though the injured employee struck the first blow. We must constantly remind ourselves that in compensation cases fault is not a determining factor, whether it be that of the employee alone or that of the employee contributing with the fault of others, unless it amounts to the 'serious and wilful misconduct' of the employee which by § 27, as appearing in St.1935, c. 331, bars...