Pawnee Ice Cream Co. v. Cates

• Citation: 164 Okla. 48,1933 OK 307,22 P.2d 347
• Decision Date: 09 May 1933
• Docket Number: Case Number: 23545
• Parties: PAWNEE ICE CREAM CO. v. CATES
• Court: Oklahoma Supreme Court

1933 OK 307

22 P.2d 347

164 Okla. 48

PAWNEE ICE CREAM CO. v. CATES

Case Number: 23545

Supreme Court of Oklahoma

Decided: May 9, 1933

Syllabus

¶0 Master and Servant--Workmen's Compensation--Injury "Arising Out of Employment."

When an employer, in a sudden fit of insanity, makes an assault upon his employee and injures him, while the latter is engaged in the work of the former at the regular place of his employment, such injury is an accidental personal injury arising out of and in the course of the employment within the meaning of the term as used in the Workmen's Compensation Act.

Original action in the Supreme Court by the Pawnee Ice Cream Company et al. to review award of the State Industrial Commission in favor of Haskell Cates. Award affirmed.

Clayton B. Pierce, A. J. Follens, and Truman B. Rucker, for petitioners.

Charles Besly, for respondents.

BAYLESS, J.

¶1 J. R. Cates owned and operated the Pawnee Ice Cream Company at Pawnee, Okla. His son, Haskell Cates, claimant herein, was employed by him in an engineering capacity in this business. On December 12, 1930, the father, impelled by a sudden and violent homicidal mania, told claimant there was something wrong with the boiler in the engine room, followed claimant into that part of the plant, and assaulted claimant by striking him on the head with a hammer. Claimant was struck several blows.

¶2 Claimant lost no wages while disabled, and the only award of the Commission covered the hospital and medical bills. The employer and insurance carrier appealed from this award and will be referred to herein as petitioners. All of their contentions and arguments may be considered under their fourth assignment of error:

"The injury upon which this claim is based was not an injury 'arising out of the employment,' and the State Industrial Commission had no jurisdiction and were without authority of law to make an award against your petitioner under the Workmen's Compensation Law."

¶3 It may be said at once that petitioners admit that the injury was accidental, and arose "in the course of the employment." We have said:

"A compensable accidental injury must disclose, from its circumstances the existence, of two essential elements: It must have resulted 'in the course of' the employment, and it must also have aristn 'out of' the employment. The absence of either of these essential elements destroys the application thereto of the beneficent provisions of the Compensation Law." Lucky-Kidd Mining Co. v. Ind. Com., 110 Okla. 27, 236 P. 600.

¶4 Therefore, the question here to be considered is: Is an accidental injury, in the course of the employment, occasioned by an assault on the employee by the employer, when insane, one arising "out of the employment? " The earliest Oklahoma case involving an assault on an employee "in the course of the employment" is Willis v. State Ind. Com., 78 Okla. 216, 190 P. 92. In that case the act of the fellow servant was treated as an assault, and this court held the injury compensable, saying:

"Where an employee, during an interval in his work, was warming himself by a fire on the premises of the employer, and was injured by the explosion of a piece of dynamite containing a cap, brought there and thrown into the fire by a fellow employee, who picked up the dynamite and threw it into the fire to see if it would explode, the injury received by the employee arose out of and in the course of his employment, under the Workmen's Compensation Law."

¶5 The next case was that of Stasmos v. State Ind. Com., 80 Okla. 221, 195 P. 762, where an employee was assaulted by a foreman while "in the course of the employment." We held:

"It is now well settled in these workmen's compensation cases that the facts that an injury is the result of the willful or criminal assault of another does not prevent the injury from being accidental. L.R.A. 1916A, 309, and notes; L.R.A. 1917D, 112; Western Indemnity Co. v. Pillsbury (Cal.) 151 P. 398; Western Metal Supply Co. v. Pillsbury, 172 Cal. 407, 156 P. 491; Re Heitz, 218 N.Y. 148, 112 N.E. 750; L.R.A. 1916D, 641; Willis v. Pilot Butte Mining Co. (Mont.) 190 P. 124; 1 C. J. 390, and cases cited. * * *

"It seems equally clear to us that the facts in this case show the petitioner's injury arose out of and in the course of his employment. As we have seen from the brief statement of the case hereinbefore set out, the petitioner was in the act of leaving the mine, following the usual course of exit from his working place to the foot of the shaft for the purpose of taking the cage to the top. Tom Woods, the assistant foreman, was there directing the men, and while the test of liability under the statute is not the dereliction of the master, or that of his representative acting within the scope of his authority, it seems to us that it was entirely proper for the petitioner to complain to the mine foreman concerning the delay in the arrival of the cage.

"Our statute, in so far as it provides for compensation for the 'disability of an employee resulting from accidental personal injury sustained by the employee, arising out of and in the course of his employment, 'is almost, if not identical, with the British statute upon this subject, and with the statutes of practically every state in the United States, except Washington, which has a broader provision on the foregoing paragraph of our statute.

"It is the decided weight of authority in Great Britain and the United States that an assault by a third party, or an assault of the employer arising out of and in the course of the employment, resulting in an injury and disability, is such an injury as comes within the Workmen's Compensation Law. L.R.A. 1917B, 112, and notes; Willis v. State Ind. Com., 78 Okla. 216, 190 P. 92; Willis v. Pilot Butte Mining Co. (Mont.) 190 P. 124, and many other cases."

¶6 A recent case called to our attention involving an assault by a superior or employer upon the employee is that of Okla.- Ark. Tel. Co. v. Fries, 128 Okla. 295, 262 P. 1062. In that case the employee was injured in the melee and confusion...