Mutual Implement & Hardware Ins. Co. v. Pittman, 38192

Decision Date09 June 1952
Docket NumberNo. 38192,38192
CourtMississippi Supreme Court

Morse & Morse, Poplarville, for appellants.

Williams & Williams, Poplarville, for appellee.

HALL, Justice.

This is an appeal from a judgment of the circuit court affirming an award to appellee by the Workmen's Compensation Commission for injuries resulting from an assault and battery committed upon him by a fellow employee. These workers were engaged in laying a concrete floor in a garage building. A concrete mixer was situated just outside the door of the building. Appellee, a Negro boy sixteen years of age, was one of the employees engaged in pushing a wheelbarrow in carrying the concrete from the mixer to the inside of the building. Oliver Stewart, a white man, was engaged in spreading the concrete by means of a shovel when it was emptied from the wheelbarrow. Each time the mixer was emptied there was necessarily a short interval while the mixer was being refilled during which time Pittman and Stewart had no duties to perform. During such an interval Steward, who was standing in the doorway, removed a cigarette package from his pocket and lighted the last cigarette in the package. He then crushed the package into a small ball and thumped it at Pittman, striking him on the back of his neck, and then turned his back toward Pittman. Pittman looked around and then picked up a small pebble and thumped it toward Stewart, striking him on the shoulder or neck, and Pittman thereupon turned his back toward Stewart. These incidents were of no consequence and inflicted no injury upon either employee. They fall within the category which is classified in the workmen's compensation decisions as 'horseplay'. Stewart then walked over behind Pittman and struck him a tremendous blow on the back of the head with the shovel with which he was working. Pittman was knocked unconscious, his skull was fractured, and he sustained a serious and permanent brain injury. At the time of the assault Pittman was standing by his wheelbarrow waiting for it to be refilled by the mixer.

Appellant relies primarily upon a line of decisions which deny compensation for injuries resulting from 'horseplay,' and, while there is a conflict in the decisions founded on that principle, we are of the opinion that in this case the 'horseplay' had ended and that Pittman received his injury as the result of willful assault and battery. In the decisions on injuries resulting from an assault and battery there is also a conflict in the authorities, and since this is a case of first impression in this State it is necessary for us to determine whether we shall follow those authorities which give the compensation act a strict and narrow construction or those that give to it a broad and liberal construction. We align ourselves with the latter group.

In Horovitz on 'Current Trends in Workmen's Compensation' pps. 662-665, numerous decisions are cited which sustain the following views of the author: 'However, the unending stream of appeals (by insurers mainly, as most employees cannot afford to appeal), on the ground that injuries do not 'arise out of' the employment, will never abate so long as some courts will inject antiquated common law rules into a new law which intended once and for all to bury the narrow rules of the common law as related to work-injuries. A few jurisdictions omitted the use of the words 'out of' the employment, but that did not solve their problem, as the courts properly read in an equivalent requirement of some degree of 'causal relation' to the employment. To say that 'in the course of' the employment i. e. temporal connection alone is sufficient, would make the employer an insurer, and be health and accident insurance in the guise of workmen's compensation. But where any reasonable relation to the employment exists or the employment is a contributory cause, the court is justified in upholding an award as 'out of' the employment.

'The trend is to get away from earlier narrow or strict cases and to follow the more recent liberal views. The overwhelming weight of authority gives the benefit of the doubt to claimants on law questions, as distinguished from fact questions. And the weight of authority urges the trial court or commissioners to construe evidence liberally in favor of claimants in compensation cases; and on appeal there is a growing modern tendency to uphold findings for claimant even though the facts on which they are based are doubtful, slender or weak, and to reverse findings of fact which disregard favorable, uncontradicted evidence, or which reach unfavorable general conclusions, hiding the law of the specific facts, or which construe evidence narrowly against claimants. The rule of liberal and broad construction is especially justified, as the acts usually severely cut down the amounts individuals can recover, with the intent that the recoveries be spread over a larger number of cases and thus benefit larger groups of workers, and to effectuate the humane purposes for which the acts were enacted. Hence board or commission awards based on a liberal construction of the words 'out of' are upheld whenever 'rationally possible.' Any reasonable doubt as to whether the act or injury of the employee arose out of the employment should be resolved in favor of the employee or dependent, in view of the policy of broad and liberal construction of the workmen's compensation law.'

Our Compensation Act, Chapter 354, Laws of 1948, provides that the injury must arise 'out of and in the course of employment.' The foregoing quotation from Horovitz deals with what is meant by the use of the words 'out of' in compensation acts. In the same work at pps. 777-778 the author cites decisions to support his conclusions as to what is meant by the words 'in the course of employment' as follows:

'In short, where the injury arises out of the employment, it almost necessarily arises in the course thereof. As said by one court:

"A good deal has been said about the difference between an accident arising 'out of' and one arising 'in the course of' the employment. No doubt in the earlier cases under the act there was a certain amount of difficulty in the distinction, but my view on the matter is quite determined. I think it is impossible to have an accident arising out of, which is not also in the course of the employment, but the converse of this is quite possible.'

'Nevertheless, some courts still continue to disallow claims on narrow definitions of the words 'in the course of' the employment, and the intent of the founders of compensation acts to give wide relief to injured workers receives many a jolt as new decisions seek new ways of denying recovery.'

As early as 1930, in a case dealing with 'horseplay' and sportive acts, the Supreme Court of North Carolina said that The Workmen's Compensation Act 'itself contemplates that successful industrial operation presumes the assembling of workers in one place who are engaged in various phases of the general prosecution of the business. It is a self-evident fact that men required to work in daily and intimate contact with other men are subjected to certain hazards by reason of the very contact itself because all men are not alike. Some are playful and full of fun; others are serious and diffident. Some are careless and reckless; others are painstaking and cautious. The assembling of such various types of mind and skill into one place must of necessity create and produce certain risks and hazards by virtue of the very employment itself. * * * The bulk of normal American workmen possess a stratum or residuum of vivacity and good nature which frequently manifests itself in joking and harmless pranks. These things are not unnatural, but natural, and the ordinary outcropping of industrial contact between men of all classes and types. Such risks, therefore, are incident to the business and grow out of it. In an ordinary suit for damages for personal injury, the workman assumes the ordinary risks of the business, but the Compensation Act in such case imposes the ordinary risk of the business upon the employer; that is to say, the employer and not the workman must assume the ordinary risks of the business or employment.' Chambers v. Union Oil Company, 199 N.C. 28, 153 S.E. 594, 595. To the above stated contrasts in human nature we may add that some men are quarrelsome, contentious, bellicose and inclined to fight, while others are peaceful and not easily provoked to anger, and the very contact between employees who are required to work together subjects them to the hazards resulting from the pugnacious dispositions of their fellow employees in the same manner and to the same extent that they are exposed to the hazards of machines about which they are required to work.

In the case of Hartford Accident & Indemnity Company v. Cardillo, 72 App.D.C. 52, 112 F.2d 11, 15, certiorari denied 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415, an assault was committed by one employee upon another resulting from the fact that the victim had addressed the aggressor by the nickname 'Shorty.' A claim for compensation was made under the Longshoremen's and Habor Workers' Compensation Act, 33 U.S.C.A. Sec. 920(a) which is quite similar to our compensation act now under consideration. The United States Employees' Compensation Commission awarded compensation to the injured employee, and, on appeal therefrom, the United States Court of Appeals for the District of Columbia, speaking through the late Justice Wiley Rutledge, said, in part: 'An assault necessarily involves emotional makeup and disturbance. In a broad sense nothing is more personal. Quarreling is always so. This accounts for the early disposition to regard all injuries from wilful assault as not compensable, a view also necessarily dictated, except rarely when duty requires fighting, if tendency of the particular act to...

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