101 Pa. Super. 539 | Pa. Super. Ct. | 1931
Argued March 10, 1931.
The only evidence is the testimony of the claimant himself. He was assaulted by a fellow-workman. The referee awarded compensation, and the award was affirmed by the board, and the common pleas. The appellant contends that the injury is non-compensable under an exception in the statute; to that contention, claimant replies, that he made out a prima facie case and need not negative the exception, and that, as the record shows no case within the exception, he should hold his award. Limiting our inquiry, as we must, to whether there is evidence to support the findings of the compensation authorities and whether the law has been properly applied (Callihan v. Montgomery,
The referee made the following findings: "On May 7, 1929, the claimant, while digging a ditch for the laying *541 of a water pipe on the premises of the defendant, was struck over the head by a colored co-employee, causing a fracture of claimant's skull...... The injury occurred on the premises of the employer and during working hours where his presence was required, by the nature of his employment. It was a personal assault by a co-employee upon the claimant, who did not know the assailant personally, had never spoken to him, had no relations with him other than that of a co-employee whom he had seen but never met. The occurrence took place on a pay-day, the claimant having received his pay-check, the co-employee requested the claimant to give him his check, as he wanted to give it to his preacher; this the claimant refused to do and immediately thereupon he was struck over the head by the co-employee as above indicated. There had been no previous differences between the claimant and the person who assaulted him, no personal animosity existed, it was without provocation or premeditation and the injury was not caused by the assailant intending to injure the claimant because of reasons personal to him but was directed against him as an employee or because of his employment, while the claimant was in the course of his employment with the defendant, and such employment was intrastate commerce."
The statute provides for compensation for injuries of specified classes sustained in the course of employment with certain exceptions. Is the present case within the exception? Section 301 (1915, P.L. 738) provides: "The term `injury [a word, previously defined] by an accident in the course of his employment,' as used in this article, shall not include an injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment; but shall include all other injuries sustained while the employe is actually engaged in the *542 furtherance of the business or affairs of the employer, whether upon the employer's premises or elsewhere......" That provision has been construed in a number of decisions.
In Keyes v. N.Y. etc., Rwy. Co.,
The same provision was considered in Cawley v. American Rwy. Express Co.,
In the same term, O'Rourke v. O'Rourke,
Meucci v. Gallatin Coal Co.,
In Curran v. Vang Const. Co.,
In McDevitt v. Checker Cab Co.,
In Cronin v. American Oil Co.,
Kline, the appellee at bar, testified that he was employed "digging a little ditch," and that his assailant was "tamping ties," "about ten steps away;" they were not doing the same kind of work and were not interfering with each other; the assault occurred at about five minutes to three in the afternoon after the *545 boss had told the workmen "to get your things started and go on down." Then, a fellow-employee came to Kline, and asked him for a contribution for his preacher. Kline declined to make it. The parties had had no quarrel, they did not know each other, save as they had been employed by the same employer for about two weeks; there is no evidence that there was anything offensive about the manner of Kline's refusal. It is, therefore, obvious, in the light of the decisions referred to above, that the referee was justified in not finding that claimant was attacked on personal grounds as appeared, for example, in Cawley's case, supra; there was no more cause, in the personal relationship of the two men, for an assault than in O'Rourke's case, supra. There is no ground whatever for holding that the injury was not sustained in the course of the employment, as in Cronin's and the other cases of that sort. The evidence supports the referee's finding; whether or not there was such personal animosity, as is excepted in the statute, is a question of fact; we may therefore not say that he must have found otherwise; as the evidence does not bring the injury within the exception, it is compensable under the general provision of section 301.
Judgment affirmed.