Zygmuntowicz v. American Steel & Wire Co. of New Jersey

• Decision Date: 03 March 1922
• Citation: 240 Mass. 421,134 N.E. 385
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: ZYGMUNTOWICZ v. AMERICAN STEEL & WIRE CO. OF NEW JERSEY.

240 Mass. 421

134 N.E. 385

ZYGMUNTOWICZ

v.AMERICAN STEEL & WIRE CO. OF NEW JERSEY.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1922.

Exceptions from Superior Court, Suffolk County; John A. Aiken, Judge.

Action by Andrezez Zygmuntowicz against the American Steel & Wire Company of New Jersey, for assault, false imprisonment and malicious prosecution. Verdict for plaintiff, and defendant brings exceptions. Exceptions sustained.

The answer contained a general denial and pleaded self-defense; that plaintiff attacked an employee of defendant and had a loaded revolver and was arrested by an employee of defendant who at the time was a special police officer in pursuance of his duty, and no more force was used than was necessary; that if defendant's servants or employees did the acts and things alleged they acted on probable cause, without malice and in performance of their duties as special police officers and not otherwise; and as to the first count that defendant was a subscriber under the Workmen's Compensation Act, had given due notice thereof, and that plaintiff had not prior to such occurrences claimed his rights at common law. Defendant moved for a directed verdict on each count and requested rulings favorable to it and excepted to their refusal and also excepted to the charge as given with reference to counts 2 and 3.

Thomas F. J. Callahan, of Boston, for plaintiff.

Frank F. Dresser and James A. Crotty, both of Worcester, for defendant.

DE COURCY, J.

The jury found for the plaintiff on each count in the amended declaration; the first being for assault and battery, the second for false arrest and imprisonment, and the third for malicious prosecution. On the evidence most favorable to him the following facts could be found: Zygmuntowicz had been in the employ of the defendant for some years as a stationary engineer. Late in the afternoon of Saturday, June 23, 1918, his superintendent, Edward J. Gilbert, discharged him and told him to take his clothes and go home. The plaintiff protested against his discharge, but took his clothes and walked to the pumphouse, where the numbered brass checks of the employees were hung. It was necessary for a workman to have his check in order to enter, and perhaps to leave the mill premises. When the plaintiff reached for his check, Gilbert, who had followed him, called to Anton Johnson, who was standing by the check rack, not to let the plaintiff have his check, and to hold him. Johnson and Gilbert then seized him, and threw him down. Johnson saw a revolver in the plaintiff's pocket; and either took it out, or picked it up from the door way where it had fallen. Robert Edwards and Godfrey Nelson, employed as watchmen by the defendant (and who had been duly appointed special police officers by the city of Worcester), took him, put handcuffs on him, carried him to the gate, and sent for the city police patrol wagon. The police officer took him to the police station, where he was confined for some hours. On Monday morning he was tried in the district court upon two complaints, made by the deputy chief of police; one for ‘disturbing the peace,’ and the other charging that he ‘while so disturbing the peace and when so arrested was armed with and had on his person a pistol.’ Gilbert and Edwards appeared in court as witnesses at the trial. The plaintiff was discharged.

1. As to the first count, the claim of the defendant, raised by requests for rulings, is that the plaintiff's sole remedy for physical injury, if any, is under the Workmen's Compensation Act. That act (G. L. c. 152, § 24) provides:

‘An employee of an insured person shall be held to have waived his right of action at common law to recover damages for personal injuries if he shall not have given his employer, at the time of his contract of hire, written notice that he claimed such right.’

As was said in King v. Viscoloid Co., 219 Mass. 420, 422, 106 N. E. 988 (Ann. Cas. 1916D, 1170):

‘It was undoubtedly the intention of the Legislature by that statute to take away from employees who should become subject to its provisions all other remedies that they had against their employers for injuries happening in the course of their employment and arising therefrom, and to substitute for such remedies the wider right of compensation given by the act.’

See, also, Panasuk's Case, 217 Mass. 589, 592, 105 N. E. 368;Young v. Duncan, 218 Mass. 346, 349, 106 N. E. 1;White v. George A. Fuller Co., 226 Mass. 1, 114 N. E. 829.

It is settled that injury caused by an assault upon an employee, which arises out of and in the course of his employment, falls within the act. McNicol's Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306; Reithel's Case, 222 Mass. 163, 109 N. E. 951, L. R. A. 1916A, 304; Harbroe's Case, 223 Mass. 139, 111 N. E. 709, L. R. A. 1916D, 933;Cranney's Case, 232 Mass. 149, 122 N. E. 266, 15 A. L. R. 584.

It is agreed that at the time of the alleged injury to the plaintiff the defendant was a subscriber under the Workmen's Compensation Act, had insured its liability thereunder, and given due notice thereof; that said insurance was in full force and effect; and that the plaintiff had not reserved his rights at common law. The assault occurred in the course of the plaintiff's employment. He was on the premises of his employer, objecting to his discharge, and in the act of getting his identifying check, with which to enable him to leave and enter the premises. Bell's Case, 238 Mass. 46, 130 N. E. 67, and cases collected. And, on the facts disclosed by this record, it could be found that the assault arose out of his employment. The entire trouble was incidental to his work. Gilbert and Johnson were acting in their capacity of employees; and the jury must have found that they were acting within the scope of their employment, in order to reach their verdict. He was not charged with carrying a concealed weapon under St. 1911, c. 548, § 2 (now G. L. c. 269, § 10). As the injury embraced in the first count arose out of and in the course of the plaintiff's employment, the trial court was in error in denying the defendant's motion for a directed verdict on that count, and the requests for rulings to the same effect.

2. What has been said disposes also of the second count so far as it charges an assault. This count is concerned mainly with the alleged false arrest and imprisonment. As...