State ex rel. Anseth v. Dist. Court of Koochiching Cnty.

• Decision Date: 07 July 1916
• Docket Number: No. 19920[258].,19920[258].
• Citation: 134 Minn. 16,158 N.W. 713
• Parties: STATE ex rel. ANSETH v. DISTRICT COURT OF KOOCHICHING COUNTY et al.
• Court: Minnesota Supreme Court

134 Minn. 16

158 N.W. 713

STATE ex rel. ANSETH

v.DISTRICT COURT OF KOOCHICHING COUNTY et al.

No. 19920[258].

Supreme Court of Minnesota.

July 7, 1916.

Certiorari from District Court, Koochiching County; W. S. McClenahan, Judge.

Proceedings under the Workmen's Compensation Act by John B. Tubbs to recover for injuries received in the course of his employment by Julius Anseth. Compensation awarded, and Anseth brings certiorari. Modified.

Syllabus by the Court

Plaintiff, a bartender in defendant's saloon in the city of International Falls, was struck in the eye by a drinking glass thrown by a drunken patron of the saloon. It is held:

The evidence sustains the finding that the glass was not thrown in a personal altercation between plaintiff and the drunken man, but that the latter did not know the nature of his act or what he was doing.

The accident was one arising out of plaintiff's employment as bartender in the saloon.

Under section 25 of the Workmen's Compensation Act (Laws 1913, c. 467 ¹), as amended by Laws 1915, c. 209, the court has no authority to commute the periodical payments by awarding a lump sum judgment in lieu thereof, unless the parties agree.

The trial court erred in awarding a sum in excess of $100 for medical services.

It was not necessary for relator to ask the trial court to amend its decision in the respects mentioned, in order to raise the questions in this court. Jevne & Norton, of International Falls, and Denegre & McDermott, of St. Paul, for relator.

F. J. McPartlin, of International Falls, for respondents.

BUNN, J.

Proceedings under the Workmen's Compensation Act to recover compensation for injuries received by John B. Tubbs, in the course of his employment by Julius Anseth as a bartender in a saloon in the city of International Falls, Koochiching county. The trial court awarded compensation in the sum of $1,000 to be paid in a lump sum, and $150 for medical services. The case comes to this court on a writ of certiorari.

[1] The first question is whether the accident to Tubbs arose out of his employment. The findings of the trial court, which are amply supported by the evidence, show the facts to be as follows: During the month of July, 1915, Tubbs was employed by Anseth as a bartender in the latter's saloon in International Falls. In the course of his employment, and while actually engaged in his duties as bartender in the saloon, he was struck in the right eye by a heavy drinking glass thrown by a patron of the saloon who was so drunk that he did not know the nature of his act or what he was doing. It was a contention of relator on the trial that the glass was thrown by Dubonis, the drunken man, in a personal altercation between him and the bartender, but the finding is against this view, and the evidence is such that we must accept as true the version of the matter adopted by the trial court.

[2] Did this accident ‘arise out of’ Tubbs' employment as bartender? Did this employment necessarily accentuate the natural hazard from assault to which all men are subject? In other words, did his employment cause a special degree of exposure to the risk? We have no hesitation in answering these questions in the affirmative. The court will take judicial notice that the position of bartender, patron, or spectator in a saloon, especially in one situated where rough characters are apt to congregate and carouse, is quite apt to be one of peculiar danger. Barroom assaults are not of infrequent occurrence. We had an illustration of one very recently in the case of Lynch v. Brennan, 131 Minn. 136, 154 N. W. 795, and illustrations might be multiplied indefinitely by reference to other decided cases.

We will not review the decisions in England and in this country, rapidly increasing in number, in which the subject of whether the particular accident is one ‘arising out of’ the employment is discussed. Reference may by made to State ex rel. People's Coal & Ice Co. v. District Court, 129 Minn. 502, 153 N. W. 119, to the elaborate note in L. R. A. 1916A, p. 23, and to Chartres on Judicial Interpretations of Workmen's Compensation Law. We hold that the accident in the case at bar was one arising out of the employment. As to the point that the findings are not of facts from which it may reasonably be inferred that the accident arose out of the employment, we hold it not well taken. It was not necessary for the court to find specifically that the accident arose out of the employment.

[3] Questions more difficult arise from the court's award of compensation in a lump sum, rather than in weekly payments. The injury resulted in the total loss of the right eye, and therefore entitled plaintiff to compensation of ‘fifty per centum of daily wages during one hundred weeks.’ Laws 1915, c. 209, § 13, subd. ‘c.’ Plaintiff's wages were $20 per week, and he was therefore entitled to $10 per week for 100 weeks. Instead of making this award, the court, without the consent of the parties, gave compensation in the sum of $1,000, and judgment was entered against relator for that sum, with $150 for medical services and costs.

Two questions arise: (1) Had the trial court the right, without the agreement of the parties, to award a lump sum judgment instead of periodical payments? (2) If so, should the weekly payments have been commuted by taking the present value thereof calculated on a 6 per cent. basis?

Section 25 of the act, as amended by Laws 1915, c. 209, reads as follows:

‘Sec. 25. Payment in Lump Sum.-The amounts of compensation payable periodically hereunder, either by agreement of the parties, so approved by the court, or by decision of the court, may be commuted to one or more lump sum payments, except compensation due for death or permanent total disability, or for permanent partial disability resulting from total loss of hearing or from the loss of an arm or a hand or a foot or a leg or an eye or...