*1 any.” conclude recovery if We saying “a equivalent to which is recovery prohibiting a act nothing compensation there is re- in excess of the amount it of an amount under by an party. against negligent third coverable concur. All is affirmed. judgmént Engineering Earl & Webster Keithley, Respondent, v. Stone Corporation Appellants. Surety Company, Southern 49 S. (2d)W. 296. City April Appeals. Kansas Court of 1932. respondent-.' Jo Norman for Norman Jones, Hocher, Gladney, Sullivan Jb. Willarcl A. McGaleb and W. Drescher, Jr., appellants. F. for BOYER, appeal C: This is an judgment from-a Miller
county reversing-an circuit-court order of Compensa- the'Workmen’s received Commission which denied an tion Webster by respondent. Earl & Stone *2 Surety Company was Corporation Southern Engineering’ and the Keith- employer. employment course of his the insurer of the In the sight ley and as a result thereof the by coemployee was assaulted duly filed A right eye of lost. claim for was was The against employer and There was no answer. the the insurer. person and appeared in case tried before a Claimant was referee. The their employer appeared representatives. the and insurer the against employer in favor of and insurer and referee found the application no On compensation. and awarded there by two review full final commission. The award was dissenting. commission, Tt recites: member members of the the third employer of undersigned in favor above hereby “The find compensa- against and and insurer and award above employee’s accident reason that condition tion for the above for the arising of course of of an out and in the the result accident meaning 7, section Workmen’s Com- within the it Act, that, during pensation Laws of in while occurred employment, connected with or incidental course of his it is not employment.” the risk of his rulings findings other fact or
There was no statement of. law, contemplated Act, in record. as section shown judgment there appeal duly An made to circuit court and the of the and the case the award commission remanded reversed findings make direction that the commission “hear evidence and disability.” judgment From this to amount claimant’s employer granted appeal were court. and insurer an to this appellants’ judgment
The contention substance award of the commission wrong circuit court was and the injury by right accident because claimant did not sustain commission, state employment, out of under the and that evidence, Respondent and did find. of the was authorized to dispute and that the record insists facts are not in resulting were claimant’s evidence occurrences matter employment, arose and as a all incidental to and out of the questions There other compensation. of law he is entitled arguments, are all col- presented by counsel briefs but inquiry lateral main indicated. above parties state the position it becomes essential to
From the referring Rut before to the evidence testimony somewhat detail. advantageous conflicting, to state to be it will be is said Claimant, Hancock, Cass others Hancock, facts. Clem conceded Engineering Corporation employed by & Webster Stone Keithley Bagnell day question, Dam. On the construction work engaged and Clem Hancock were in their work separate under fore- other, carry man near each employed but and Cass Keithley’s appears foreman was Hartman. water. name discharged boy day,, foreman had a water and at the noon hour about the time the men work were to return to some discussion over it. arose Clem Hancock asked the foreman about it going pink-slip him,” give foreman “I meaning said: am him discharge him; give his time or and the foreman also said: “I’ll sitting if I catch to some more them around.” At this time Clem Keithley sitting made a remark addressed to around Hancock so much, Keithley on account of which took offense. men went together, near each other in passing, to work or when near Keithley Clem said to Hancock that the next time that remark was “Right slap made he now would Hancock’s mouth. Hancock said: good slap is a time me.” him slapped men and the two *3 together separated. on, went in a scuffle and were Later Hancock Keithley they again altercation separated renewed the and were fight. thereafter, Shortly and told not to Clem Hancock informed brother, Hancock, difficulty ten or Cass and about encounter, approached fifteen minutes after first Hancock Cass Keithley engaged carrying large who was then with other men a piece shoulders, engaged of timber on their and Han- while Cass Keithley eye. cock Keithley struck a blow in the testified that he did presence not know of the Hancock at that the time and he Cass approached from rear. Hancock Cass testified that he walked Keithley, him, around front of cursed and then him. The struck sight Keithley eye from this blow to so hurt his there- entirely destroyed, eye was almost and his other weakened sympathy. only testimony pertain conflicts to the exact nature of
the remark made Keithley, Clem Hancock to position and the of Cass Hancock at the Keithley time the last assault. testified that the foreman discharged sitting had down; a water carrier for why it, Clem Hancock asked him he did and the foreman said sitting down;” “he fired him for then Hancock said Keith- ley: that, Shorty. sitting You don’t want to be down.” “Hear Clem Shorty Hancock testified: “I said, looked over to “We’ll ” quit sitting Keithley around so much.’ testified that Cass Hancock up struck; came behind him and that he was not aware of presence. Cass Hancock testified: “As soon as the whistle blew I took the get water a bucket of water. bucket When I came they got back Clem boy told me it and the into Woods took off him I him asked what it was him. he told He hollered for tome come back. up my Made me I went mad and there and set water bucket down. turned to see it was. I He around who stood there Said, yon,’ ‘Damn and I hit him.” few seconds. also said a He Keithley a piece time had of lumber on shoulder. at testimony Keithley assisting is to the effect that other Other carry large piece men of lumber. employees plain other as witnesses on behalf of
Two were called them, Wood, One of was directed tiff. Clifford the referee very few what he knew it. tell “in words” about Witness said: “Well, noon, right to work when we started after the whistle blew, talking; up there was that remark came w'e went on and get turn there, this timber on and started to back another carried nothing one, I know like I know7 don’t what he said that. him, they got say slap slap I into it. heard him he’d he did them; I They got separated there and clinched. told him. around they They fight; g-ot again I started on. into it them better not got came separated them and we on and and then other one some got way half and started back. We before we another timber swung him carrying boy up run and hit them. The water wras right.’-’ hand; water bucket Witness with his left had his struck; there before the blow also there were w7ords said ‘‘Q. you Did far as knew. hear had been no trouble before so he quit on laying if didn’t down about him he remark that was made working 3L men close job get Yes, sir.” The he’d fired? slap gangs; say, “I’ll together, but in different he heard timber say why; him had carried one you,” but hear didn’t fight started. before down; Pope setting there, started
G-.M. “We was down testified: down;’ said, you quit setting if ‘Shorty, don’t to work and him him what made fire the wa- —Hartman asked him—he asked *4 job. Said, boy. sitting on the ‘Some he was down more ter Said quit setting down; them, too. you’ll get you fire fired if don’t slap time he said that he’d get it, too.” “Earl said next You’ll good time. Earl did.” Hancock said now was a him in the mouth. aware; feeling gangs which he was the two There was no between Keithley. The an- to referee by Hancock he the remark heard states claimant witnesses. The are several other nounced: “There already preced- story be same as witnesses that their would The loss for the claimant. ing.” called No other witnesses were Clem called conceded, and defendants sight eye of the and Hancock. Cass sitting at the around the men were Clem Hancock testified that fired; Hart- that he had been hour; him boy noon told water had if him and the foreman, “I Hartman man, asked was there. Said, boy Said, him.” going pink-slip ‘I’m water had fell out. setting I looked around.’ give them ‘I’ll if I catch to some more much.’ sitting around so quit over have to said, ‘We’ll Shorty said, Said, jnst going I slap yon.’ ‘I’m timber. carried one He had good me,’ and he did.” He slap time to had ‘Right is a now played before; him, with Keithley he had walked no trouble feelings men; did joked; hard between he there were no pool, and ‘‘ ”it; thought said, I Keithley angry until he mean he not think work; brother until back to he-told his nothing more about it he went Keithley it” strike “got into and he saw his brother that he and anything said; they had had Keithley; he not know whether did quit before; work at time. fight his brother both he, twenty-three years age; that he was he had Cass Hancock testified months; knew employed the work six seven he been on feelings” them; between there were no “hard boys. “Before Keithley; Hartman one of water he struck fired talking. sitting there, Hart- all around blowed we was the whistle pink-slipped if him—he up. Clem asked him he man walked going get more got said, it. ‘Yes. Some boy water into He quit Keithley, ‘You sitting Clem said to around.’ it if don’t ” testimony has been set The of his material heard that.’ remainder all evidence. out heretofore. That was appeal been parties on this stated positions of the Concretely only question be general specifically the terms. on circuit court review was authorized is whether the decided any and remand the case on commission the award of the reverse (Laws 1927), 44 of in section the Act grounds specified of the 1929. this section the Under 3342, Revised Statutes now section by and “the court reviewing is limited its terms power court modify, reverse, only questions of law and appeal on shall review any follow- award rehearing, or set aside the remand without 1. That the commission acted grounds other: ing and no procured 2. That the award powers. its or in excess of support by the commission do 3. facts found fraud. That the competent evidence 4. was not sufficient award. That there making for inter- of the award.” warrant the record to _Reason found, all, if the terms under case must be present ference in the regarded of the commission is An award the fourth condition. must supported substantial evidence it if special verdict and as a proof it supporting such should absence of prevail. But in the set aside. verdict shown award agreed that the substance of
It is noted As not arise out did is that the *5 findings except of fact to state heretofore, made no the commission ground employee’s “that on the denying compensation reason for its arising out of an accident the result condition is not meaning 7, of section Work- employment within the course his
1127 it 1927, that, occurred in while Laws of Compensation Act, men’s or in- it is not connected employment, his during course of the to section -If reference employment.” the his risk of cidental evidently error in intentional, was commission the was of the act (c)' paragraph act, and section is definition because af- otherwise only part. provides: pertinent is “Without abridged clause meaning interpretation or fecting either employ- of such in the course injuries out of and ‘personal except while en- workmen cover hereby not to ment,’ declared it per- being their where duties gaged premises or in, about part a of- require presence their formed, their services or where provision in-mind had this commission If the such services.” engaged his work or was not in fact found performed, being or where his duties were premises- where be-entirely with- finding would required presence, a such services it. contrary all of F-rom evidence and support any out at as uneontroverted accepted must be proof it record of engaged per- actually injury he the time of claimant’s at place aud assigned employer to him work formance of however, that the reference probable, It is designated therefor. commission had mind and that section was error Re- 1927, 3301, now section 3, Laws of section intended to refer to employer shall that “the provides Statutes vised compensation under negligence, to furnish irrespective of liable injury of the em- or death provisions chapter personal for of this employ- the course of arising out and in ployee by accident - ment.”- Notwithstanding forms of expression, the commission arrived the conclusion injury claimant’s compensable because arise did not out of his We opinion are of the the result before wrong. the commission was Where -the evidence conflicting question on the of whether or not the out arose presents an situation issue of fact for the determination of the commission. But where there is no material conflict in the evidence the issue the situation calls for a de legal termination of the effect of the facts evidence. It involves - question merely law, and such is the condition of the record before us. We no material see conflict in testimony, per inferences, reasonably missible which could lead to diverse conclu sions. The essential facts are not controverted. Claimant was an employee; actually performance he engaged'in work employer, injured coemployee assaulted and a- while engaged. was an This accident as defined in the law to be “an unexpected or unforeseen event happening(suddenly violently, *6 objective producing human fault and at the
with or without time injury.” symptoms of an Revised Statutes 1929.] [Section injury occasioned assault employ- Did the arise out of the did, legal If ment? effect the facts is such as to show that it finding and conclusion of the commission then the it did not compensation for so arise and its award were unauthorized competent the lack of sufficient evidence in the record to warrant making award. of the opinion are of
We and hold that under the facts and circum- stances shown in evidence injury claimant’s did arise out of his employment meaning law; within the there is no sub- permissible proof stantial or inference to the contrary, and that the holding commission was in error in otherwise. In reaching this necessarily origin conclusion we consider the of the assault com- upon mitted and the nature and character of the controversy inducing controversy the assault. The was connected pertained employment; with and any there is no evidence of quarrel. other foundation for the Prior participants to the time friendly; were there had been no strife or animosity feud and no subjects wholly independent from matters or of the work purely personal to They the individuals. were up friends the moment claimant considered that he had been offered requested insult. This he resented and repeat the offender not to evidently it. The remark interpreted claimant was by him cheating mean that he was a shirk or slacker and employer. interpretation justified Whether or not the offender knew resented statement. pertained The statement to the and was connected with the work of employer, any and did not and could not have referred other matter. Clem quarrel instigated pressed point to the -where him; slapped parties claimant separated were and Clem Han- fight. They again cock later separated renewed the and in very time, short Cass Hancock was informed his brother of what immediately had This occurred. so offended the brother that he sought out him. claimant and assaulted This assault from resulted controversy begun before few minutes over the intimation that claimant was unfaithful in his work. complete There is a chain events, sequence, origin quarrel unbroken from the the work to the final assault claimant. The direct and im- injury assault, mediate cause of origin claimant’s was the but the quarrel controversy growing of the assault a out of the work employees directly of pertaining connected with and employment. injury Claimant’s arose out No other source'can be found from the evidence. We think it within legislative expressed compensation intent law to include bar one at and to afford assault cases such received. point” ap agree that there is no “case from the parties State, rely upon rulings made other of this pellate courts *7 Appellants’ compensation counsel concede that should jurisdictions. by injury an from an merely because results assault not be denied generally to another, but insist the rule upon adhered employee one be compensation is can be awarded it must that before in such cases in mind, a after consideration of all the facts apparent to rational work itself case, proximately assault was caused the the duty injured some which the to the or to or incidental work , injury an is com employer; owed and that not to personal from relations between pensable where it results work employees prosecution from of which and not .the do; resentment, anger required hy or hatred to occasioned grew committing assault, or of personal out to revenge. that personal ill-will It said such is or a desire is Typi holding authorities cited. uniform elsewhere and numerous Seymour Mfg. Co., Jacquemin Turner & 103 Atl. cal ones are: v. 49 ; 115 ; Commission, 127 N. E. City Chicago v. Marion of Industrial County Commission ; Metropolitan v. Industrial Redwood Coal Co. 315 ; 182 Commission, v. Industrial Pac. Griffin Lumber Co. Accident 314 ; In Son,& 162 Y. Edelweiss Gardens v. Sup. v. Roberton N. 125 E. 260. Commission, dustrial N. larger
Respondent
great- array
cases
number of assault
cites a
in
injury
the instant
support
position
that
tend
compensable. Typical
employment and
case
arise out of the
is
did
Georgia
(Tex.), 239 W.
Casualty
of
v. McClure
S.
are:
Co.
these
Cady
Flannery,
841 ; Ferguson
N.
644,
163
v.
647 ;
Co. v.
E.
Steel
; Meucci
Co., 123
Coal
Co., 101
v. Gallatin
Gravel
So.
McFarland
248
Globe
857 ;
144
E.
766 ;
Mayo,
v.
N.
Atl.
Fust Kerber Cut Stone Co.
273 ;
Commission, 225 Pac.
Indemnity Co. v. Industrial Accident
Son,
1062 ;
&
Joseph
N.
v.
Stern
Loft,
v.
114
E.
Verschleiser
Carbone
126 ;
v.
Commis
122,
229 N.
128
E.
State
Y.
N.
Stasmas
Industrial
762 ;
v.
sion,
221,
Cooperage
195
Co.
Industrial
80 Okla.
Pac.
Pekin
Commission,
31,
285 Ill.
The citations and others imprac- be contending It counsel. would collected and reviewed controlling pertinent parts facts and the ticable set here the forth in the various cases. compensation acts which are considered of are not uniform say is sufficient the authorities be- rulings questions in hand. But we the one made on similar to his conten- weight respondent authority supports lieve the of A injury tion case arose out subject presentation of the on Schneider Workmen’s Law, Compensation Edition, 293, Second section an accompanied by digest showing extended decisions where al- lowed and where it apparent allowed assault cases. It is generally leading applied rule controversy is that where a pertains assault is connected with or to the isor resulting to the employee, incidental work arises émployment. .of out. proeess of search comparison has led us conclusion heretofore Further, injunction announced. take we notice of the Supreme our own every involving application Court that case “arising employment” term out its should be decided particular own facts and circumstances and not reference some formula. Co., (2d) v. Chrevolet Motor 40 S. W. [Leilich 605.] furthermore, authority And we holding for the that where there right compensatiton a doubt' doubt should employee. Harker, (2d) resolved favor v. *8 S. W. [Pruitt 769, 773 ; v. Gunite & 41 W. Co., Shout Concrete Construction S. ] (2d) 629, 631. Other recent cases evidence a and- broad liberal construction injuries will regarded law and as within the scope of its intendment and as out of the unless injuries said expressly excluded the terms of the statute operation from its removed the evidence in the ease. [Conklin Co., (2d) v. K. C. 609 ; Public 41 Service S. W. Schulte v. Grand & 43 Co., 833 ; Union (2d) Tea Coffee S. W. v. Ransdell International Shoe Co., 1 ; W. (2d) Co., S. W. v. & Sawtell Stern Bros. S. (2d) 264.]
The decision at which we arrived is supported principle ruling Appeals of the St. Louis Hager Court of the ease of v. Co., (2d) 578, 580, Pulitzer Pub. 17 S. W. compensa far augmented tion question injury by was allowed. volun tary -act of an employee, previously injured, presented is not at bar. judgment the case results of the circuit court be affirmed. The Campbell, should Commissioner so recommends. C., concurs. foregoing opinion Boyer, C.,
PER CURIAM: The adopted judgment affirmed. opinion as the of the court. The All concur.