McColl v. Scherer, 3974

• Decision Date: 23 September 1957
• Docket Number: No. 3974,3974
• Parties: Jeff McCOLL and Margaret Jean McColl, husband and wife, Appellants, v. L. B. SCHERER, Ruth Schellange, Administratrix of the Estate of A. F. Schellange, Deceased, First National Bank of Nevada, Executor of the Estate of Jack Katleman, also known as Jake Katleman, Deceased, Joe Hall, Vic Hall, Frank Edds, Bernard Vandersteen, Art Stanley, and Las Vegas Club, a copartnership, Respondents.
• Court: Nevada Supreme Court

Page 807

315 P.2d 807

73 Nev. 226

Jeff McCOLL and Margaret Jean McColl, husband and wife, Appellants, v. L. B. SCHERER, Ruth Schellange, Administratrix of the Estate of A. F. Schellange, Deceased, First National Bank of Nevada, Executor of the Estate of Jack Katleman, also known as Jake Katleman, Deceased, Joe Hall, Vic Hall, Frank Edds Bernard Vandersteen, Art Stanley, and Las Vegas Club, a copartnership, Respondents.

No. 3974.

Supreme Court of Nevada.

Sept. 23, 1957.

Foley Brothers, Las Vegas, for appellants.

Goldwater & Singleton, Las Vegas, Jones, Wiener & Jones, Las Vegas, for L. B. Scherer, Ruth Schellange, etc., et al.

Morse, Graves & Compton, Las Vegas, for Bernard Vandersteen.

BADT, Chief Justice.

In this appeal from a summary judgment for defendants in which the plaintiffs sued for damages for personal injuries allegedly the result of defendants' negligence, the main question presented is whether such factual determinations remained for the court or jury as to preclude a summary judgment. We have concluded that there was an undetermined factual question, thus requiring a reversal of the summary judgment. Other questions are also disposed of.

The complaint of Margaret Jean McColl (hereinafter referred to as the plaintiff, although her husband Jeff McColl was joined as co-plaintiff) alleged as follows

'5. On the 15th day of October, 1953, in the said Las Vegas Club, defendant Dale Eugene Sollars wrongfully maliciously and unlawfully assaulted the plaintiff Margaret Jean McColl by firing two shots from a loaded pistol into the said plaintiff's body; * * * severely injuring and disabling plaintiff Margaret Jean McColl.

'6. That the employees of the said defendant Las Vegas Club whose duties were to keep law and order in and about the premises of the said Las Vegas Club casino and bar, while acting within the scope and course of their employment, negligently failed to keep law and order in and about the premises of the said Las Vegas Club casino and bar, and as a direct and proximate result of such negligence, the defendant Dale Eugene Sollars assaulted the plaintiff Margaret Jean McColl as aforesaid which severely injured the said plaintiff Margaret Jean McColl.'

Defendants admitted paragraph numbered 5 and denied paragraph numbered 6. As affirmative defenses defendants pleaded (1) that both parties were subject to the provisions of the Nevada Industrial Insurance Act and that at the time of the accident plaintiff was acting 'within the course and scope of her employment' as a cocktail waitress for defendants, and (2) that she had applied to the Nevada Industrial Commission for benefits under the act and had actually received benefits from the commission in the sum of $29,394.60. Under the Industrial Insurance Act the plaintiff was entitled to compensation for injuries by accident 'arising out of and in the course of the employment * * *.' N.R.S. 616.270. Under the first affirmative defense (although it is not alleged that the accident arose out of her employment) defendants urged that compensation under the act was plaintiff's exclusive remedy. The second affirmative defense is urged under theories of election of remedies, estoppel and res judicata.

(1) Defendants took the deposition of plaintiff and developed the following facts: Between 10 and 10:30 P.M. on October 15, 1953, on the premises of the Las Vegas Club during the hours of her employment there as a cocktail waitress and while she was in the performance of her duties serving various people, she was shot by one Dale Eugene Sollars. Nothing more. There is no doubt that she was injured in the course of her employment, but as to the question whether the injury arose out of her employment, the record leaves it entirely a matter of conjecture. Perhaps it did. Perhaps it was the result of a personal grudge, animosity or other personal relations having nothing to do with her employment.

It is conceded that the defendants elected to accept the provisions of the Nevada Industrial Insurance Act, that the plaintiff had not rejected its terms, and that if plaintiff's injuries were compensable under the act, or, more narrowly expressed, if the injury arose out of and in the course of her employment, compensation by the commission was her sole remedy exclusive of any rights of a common law action against defendants. ¹ The deposition developed the fact that plaintiff had filed her claim for compensation and had received large sums of money from the commission and was receiving monthly compensation at the time of and after she filed her complaint.

Defendants' motion for summary judgment was made upon the ground that there was no genuine issue as to any material fact and that the defendants were entitled to judgment as a matter of law. This in turn was based on the grounds (1) that the injuries alleged to have been suffered by plaintiff were those arising out of and in the course of her employment; (2) that she had in any event elected to proceed by claim against the commission and was bound by such election; and (3) that the award by the commission was equivalent to a finding that her injuries were the result of an accident arising out of and in the course of her employment and was res judicata.

The meagerness of the facts appearing in the record leaves the factual situation as to how the shooting occurred or what caused or occasioned it entirely undetermined. These things might have been shown to the commission, but no part of the proceedings before the commission is before the court--not the nature of the claim presented nor the evidence produced in support thereof nor the findings of fact of the commission if any such were made.

The rule is thus stated in Hudson v. Roberts, 75 Idaho 224, 270 P.2d 837, 839: 'It may be stated as a general rule that where an employee is assaulted and injury is inflicted upon him through animosity and ill will arising from some cause wholly disconnected with...