231 N.W. 233 | Minn. | 1930
By his motion for a directed verdict and judgment notwithstanding the verdict defendant raised the question of law that plaintiff's sole remedy for the assault and battery was under the workmen's compensation act, since the relation between the two men was that of employer and employe who were both under the act, and the fracas arose out of the manner in which plaintiff did his work during the hours thereof on or adjacent to the premises where his work was. The jury could find, and evidently did find, that defendant intentionally and maliciously struck at plaintiff with a heavy broom handle and that the blow dislocated two finger joints on the hand which plaintiff held up to protect his head. *471
Defendant relies on cases where an employe has been assaulted by a fellow employe, a foreman, or an officer of an employer corporation, or by a third party, and the disabilities have been held compensable under workmen's compensation acts. Among such cases are cited our own, State ex rel. Anseth v. District Court,
An employe injured in the course of the employment by the tort of a third party who is not under the compensation law has his common law action against the tortfeasor, even though entitled to compensation under the act from the employer. City of Red Wing v. Eichinger,
Plaintiff cites Blake v. Head (1912) 106 L. T. Rep. 822, 5 B. W. C. C. 303, an English case, where it was held that a wilful assault by an employer upon an employe was not an accidental injury. But too great weight should not be given to that ruling where, as here, the interpretations of workmen's compensation acts generally are that even intentional injuries inflicted by a fellow workman, foreman or superintendent under certain circumstances may be compensable, while in England it is otherwise.
Defendant refers to a number of opinions from those administering these acts in other states, to the effect that since intentional assaults by fellow employes and foremen are compensable there is no reason why that of an employer should not be likewise. But in none is it intimated that the employe has not the election to sue the one who actually committed the felonious and intentional assault for damages under the common law, be he fellow employe, foreman, superintendent or employer. Of the cases decided by courts of other states none touches the question here presented. At first blush Perry v. Beverage,
The judgment is affirmed.