*1 of examining with the mode questions dealing larly, raised for first when not be considered witness time on appeal.” conclu- Dr. accepted Gruetter’s Commission
The hold is ruled those cases sions; and this Compensa- of the Workmen’s the factual findings supported when will not be disturbed tion Commission substantial evidence. Affirmed.
Mr. Holt not participating. Justice v. Safreed.
Johnson 2d 545 5-528 273 S. W. 1954. delivered December Opinion Ragon Morgan, appel- Franklin Wilder & lant. *2 appellee.
Rose, Holland, Smith, Holland & for appeal Minor W. Mill wee, Justice. This anis from judgment affirming a of the Sebastian Circuit Court an the order of Workmen’s Commission de- nying’ by appellant, a claim for made the against appellee, Johnson, Safreed, Willie Joe and his insurance carrier.
Appellant Deloney and Marcellus “Red” for op- worked Company Safreed Construction which is owned and engaged erated Joe Safreed and in the business of constructing appellant highway gutters. street and curbs and Both Deloney employed
and were common as labor- being super- ers, neither authorized to as act foreman or though Deloney working company been visor had the for years appellant only for about ployed while had em- so September 4for or 5 months on 21,1953. On Company engaged constructing date was Safreed’s curbing City aon certain street in the of Ft. Smith. working along custom, as his Safreed, was was with his employees supervisor and the sole foreman was on Deloney job. assigned He to and other two workmen the job they grading place. between forms were set in necessary place It was that more dirt be moved Appellant grading where the was done. and an- hauling other laborer were dirt from wheelbarrows pile away. stock a several hundred feet such On one Deloney appellant put directed load the dirt at cer- place dump spot but tain he chose to it at another and spirited argument cursing ensued. The two were threatening up. to kill other each as Safreed walked discharged decided that one them had to Safreed appellant that it should be determined because of seniority. appellant they Deloney’s going He told were appellant following to the truck with to town and started Deloney, grabbed latter when the turned to him the at the one hand and same time struck him a collar with very light blow the shoulder with on the other hand or appellant by arm and took intervened, Safreed fist. Deloney ap- walking they struck truck when to the inflicting pick pellant for in the head with compensation. sought which he Deloney habit was
It further shown was attempting resented fellow laborers to “boss” his who Appellant by him. also such assertions unauthorized. might if him that Safreed fire testified that feared appellant taking from orders latter noticed that the Deloney gave all in con- who orders rather than Safreed Appellant also stated that nection with the work. Deloney striking grabbing was that the reason pick ground in off the latter, time, had raised his appellant thought threatening *3 feared and a manner and Deloney him. It was also shown about to strike that was previously Deloney had threat- that about two months carry appellant pick when refused to ened he by Deloney given in with the connection certain orders given by contrary to those Safreed. work which were by Appellant’s heard claim for was he not who found that was entitled one Commissioner (1) Appellant aggressor in was the recover because: affray; (2) in did not arise out of and and employment. sus- the course of his This conclusion was by and affirmed tained the full Commission the Cir- cuit Court. appellees’ appel- insistence that
We first consider longer employed by discharged and no lant had been injury. have that at the of his We held Safreed time period discharge and must somewhat between longer in less, involved the instant minute, than the Walker, Ark. 2d 165 S. W. Lundell case. working discharge occurred before and assault 600, premises, allowing in re- but off the work hours and period discharge covery and between death said, we “the transitory justify claim that Walker was was too ap- In that we also when shot.” not an proved jurisdictions by nearly in all the rule followed rejecting that no sustained the contention compensable. participant in an assault might reasonably difficulty It be said that the be- appellant Deloney inception tween and had its in the disposition employees, latter’s to “boss” his fellow any aggression appellant’s part that on had ceased pick. time he was assaulted with the However, since it undisputed appellant struck the first blow, we say support cannot there is no substantial evidence to finding aggressor Commission’s was the in the affray. undisputed feeling
Now isit ill that the and alterca- appellant Deloney tion between occurred because of work relations, while at work and as a direct conse- quence of the manner and method which the work was controlling legal done. Hence the whether issue is “aggressor” fight a so-called in a work-connected or al- Compensation tercation recover Workmen’s in- juries passed received in the altercation. We have never precise question on the and there is much conflict jurisdictions decisions in those where the issue has ‘‘ ’’ aggressor appear decided. The word does our Compensation statute. The Acts most provision states contain a similar to Ark. Stats., § 81- provides: 1305,which
“Every employer shall secure to his employees pay provide compensation for their *4 disability injury arising or death from of employment, regard of without course to fault aas cause injury; provided, liability for such that there shall be no under this Act where the solely death from occasioned intoxication injured employee of the or wilful intention of the in- jured bring about or death of him- self or another. ...” recently majority jurisdictions
Until of that had question passed ag on refused to an gressor dispute even was work-connected. apparently support still Some of cases this Co., v. Black & White 50 view are: Kimbro Cab Ga. App. v. 274; Comm., E. Fischer Industrial 408 143, 177S.
401
Ill.
96
115, N. E. 2d 478; Merkel v. T.
Co.,
A.
Gillespi
10
N. J. M.
162 A.
250; Vollmer v.
1081,
Milwaukee,
City of
254
and Wilker son v. Indus
162,
Wis.
35 N.
2d 304;
W.
trial Comm., 71 Utah 355,
However, with the commencing opinion by Judge Rutledge Accident & Indemnity Co. v. Car Hartford dillo, 112 Fed. 2d cert. denied, 310 U. 11, 84 S. L. Ed. 649, 60 1415, Sup. St. 1100, various courts to re-examine began their position and adopt view that of the aggression claimant, without more, would not bar for an in recovery sustained in jury a work-connected dispute. During few past years trend of the cases line with this is such holding now be said that a majority of jurisdictions which have examined the issue favor the proposition that does not aggression bar recovery. Some of these cases are: Newell v. Moreau, 94 N. H. Dillon’s Case, 439, 55 A. 324 476; 2d 85 102, Mass. N. E. 2d v. 69; Stulginski Waterburg Rolling Mills, 124 Conn. 653; Myszkowski Co., Wilson &
355, 199 A.
v.
155 Nebr.
State
Ins. Fund v.
714,
203;
53 N. W. 2d
Com’n.,
Acc.
Industrial
38
Cal. 2d
242 P.
659,
311;
2d
Baking Co.,
Petro v. Martin
caused whole or part by, “intoxication, violation of ” the law, or or wilful serious misconduct of the workman. allowing recovery In aggressor, where claimant was the court, “aggression” refused to read the defense of saying: into the statute determining
“In whether the assault is serious or meaning wilful within the of the statute, we consider the misconduct and not the result. The misconduct be must grave Equitable and not trivial. in Here, as Maltais supra, Society, simple Assurance hold we as- Life battery sault or a is not wilful misconduct meaning within the of the Workmen’s ’’ Law. supra, Case, Dillon’s court Massachusetts
said: striking
“The of the first blow is not the sole and ultimate test as to whether the arose out of the employment. possible We think it is for an employment arise but of the in the broad sense of the workmen’s law . . . even injured employee'struck the first blow. We con- must remind, stantly ourselves that in cases fault determining is not a factor, whether it that of the em- ployer employee contributing alone.or that of the ‘ the fault of others, unless it amounts to the serious and employee ap- wilful misconduct’ of which relief § 27, pearing Apart c. 1935, St. bars all to him. question from serious and wilful misconduct, consequences whether the occurred the line of resulting from circumstances and conditions of the em- ployment, and not who was to blame for it. . . . So even where the himself strikes the blow, first that fact does not break the connection between the em- ployment injury, and the if it can be seen that the whole origin affair had its in the nature and conditions employment, employment so that bore to it the rela- ’’ tion of cause to effect. early
As as 1938 the Connecticut court the Stul ginski supra, rejected aggressor case, defense in the following language:-
‘‘ adoption injured employee The of a that if an rule, compensation, aggressor was the could not recover injury of arose out the conditions of the em- ployment, require a would definition of terms which extremely Certainly would be difficult. to hold that no provocation angry might matter what words there parties, been have between the he who struck the first slight though might bloAV, would be denied be, com- it pensation would neither reasonable nor in accordance be principles.” AAdth sound
And the Minnesota Court made the ob following Baking supra: Co., Petro Martin servation in “When accumulated pressures of Avork-induced or work-aggravated strains and frictions finally erupt into an which results in affray to one of the injury par- artificial ticipants, that an to the say one AArhostruck the blow did first not arise out of the em- an ployment but to the recipient of that blow did arise out of the employment.” In Commissioner Taxation and Finance v. Bronx of
Hospital, supra, the claimant was in an killed altercation which arose between himself and the man he relieved on shift over the fact that assailant had not preAnous properly completed work. Claimant struck the first rejecting aggressor bloAV. defense under a stat- supra, ute almost identical Avith § 81-1305, New York Court said: quoted phrase
“The used in the statute ‘means something negligence, different from and more than mere gross palpable phrase negligence. or even The im- ports thoughtlessness and not mere deliberateness, judgment. lack of It has said to involve conduct to doing Avhichmoral blame attaches, intentional —the something knowledge likely either Aviththe that it result or with a wanton and dis- reckless probable consequences. regard of The its seriousness contemplated by the attach to the act in the statute must doing merely consequences it, hoAvever, and not to the ’ deA^elop. they actually thereof 58 Am. Work- Jur. pp. Compensation, 708-709,and cases there §
men’s spelled can no such ‘wilful intention’ cited. But playful punch, angry aggressive every A act. an impulsive Legislature in- blow is what word, an punish, depriving compensation. workers of tended to *7 compensa- justified reading in into not the Courts are principles of common law in order tion act the discarded liability place industry and it on to the relieve worker.” argue,
Appellees found, and that Commission by was the case of case controlled Barrentine instant Co., 527, & Ark. 181 S. W. 2d Dierks Lumber 207 Coal clearly distinguishable 485. is on its facts. That case indignation fight at over the assailant’s There, the arose being deliberately cutting off claimant of accused recovery finger military denying to avoid service. fight personal held that the arose out of divided court foreign had to, were and no causal con matters which employment and, therefore, nection the claimant’s with, could to have arisen out of the em not have said ployment. it is clear that no work-connected dis Thus theory pute in case. This was involved also in Birchett v. in the Garment involved Mfg. decision Tuf-Nut ma 574, Ark. 169 S. 2d where Co., W. noteworthy jority following observation: “It made the quarrelsome might working some with, to, next be might to which an workman involves a risk industry.” exposed by engaged in the reason of aggression claimant where the course, Of express legislative ex- within the so violent as to come injure, ceptions or wilful intent to wilful misconduct out of recover even the assault arises injure employment. to another But wilful intention premeditated usually deliberate misconduct denotes impulsive reasonably be said denote an cannot thoughtless punch the fist or similar or instinctive origin though result. are trivial serious acts which Horseplay under Workmen’s Assaults Horovitz/ applicable rule 216-224. The Laws, Compensation Law, Larson’s Workmen’s stated as follows: 11.15(d), “The words ‘wilful intent to in- § contemplate behavior of jure’ obviously greater gravity than the sort of that has culpability thing sometimes qualified as aggression. Profanity, scuffling, shoving or other force not inflict physical designed to real injury do not seem to this stern More- satisfy designation. . over . . ‘wilful’ adjective rules out acts are instinctive or impulsive, so that even violent blows fail to if might rise to this defense give spon- they taneous and unpremeditated.”
When the principles are considered in the foregoing we are bar, convinced that the framers of our stat- intend to ute did not preclude where recovery aggres- sive act amounted to more than blow on nothing light the shoulder with the fist administered in a impulsively sudden altercation one who was pro- attempting himself from tect We bodily injury. accordingly *8 conclude that the acts of appellant under the undisputed facts not of that serious deliberate character or essential to evince wilful intention on his necessary part to injure Deloney.
The judgment reversed, directions to remand to the Commission for a determination of the amount of to which appellant is entitled. J., not participating.
Holt, C. J., dissents. Griffin Smith, Chief Griffin Justice, The deci- Smith, dissenting. sion undertakes to soften an abrupt from con- departure flict with the statute by that “. . . saying where the of the aggression claimant so violent as to come within the express legislative exceptions of wilful misconduct or wilful intent to injure, may claimant] [then even recover, assault arises of employ- ’’ ‘‘ ment. Prom this the conclusion is drawn that an im- pulsive instinctive with the punch fist or similar acts are thoughtless trivial origin though are result” not of a character into injecting the record of fact. question compensa- provides shall no Act that "there The solely . . . tion where the occasioned employe bring injured . . of the to . wilful intention injury. about ...” wage physical ag-
It is now determined that the of gression is not a factual matter for the Commission’s accompa- "impulsive consideration, but reaction” legal grada- nied an assault falls within realm of or the tion. We circuit court—but not the Commission— appraise motives, reactions; where actions, injured by worker is a fellow he servant whom assaulted (and in the base at bar there of was a return the scene to strife) "horseplay” the transaction be treated as signification. without factual spirit courage It is inconceivable that a man of person would fail react when and if the who assaulted; happen misjudge thus invites retaliation should quality hospital of his victim and come out end of disaster, nevertheless he is entitled to be- "impulsively cause, here, he and without deliberation” disagreement. returned to the scene There, in a broth- erly premedita- mood and without volition, intentional tion, animus or reflection, made the that no assault unexpected ending. say doubt had an To the least expense physi- Johnson vindicated his valor at the of person, compensation through cal and he now receives judicial forgiveness and a "liberal” construction Act. *9 disagreements
I can conceive so trivial that rea- person expected sonable would anticipate not retal- iation, but where, here, claimant embarked on has punitive expedition contrary that terminated ex- to his pectations, I think it legal error to draw the conclusion purposes the master’s served, that the digression duty from undertaking a self-willed employer liability that relieved the for the result.