274 A.D. 122 | N.Y. App. Div. | 1948
Lead Opinion
This action has been brought to recover damages for personal injuries sustained by reason of an alleged assault. The question on this appeal is whether the complaint should be summarily dismissed as to either or both of the defendants on the ground that the Workmen’s Compensation Law provides the exclusive remedy available to the plaintiff under the circumstances of the case.
The plaintiff was employed by the defendant Davega-City Radios, Inc. (hereinafter called Davega) in the capacity of radio repairman. The defendant Levine also worked for the same employer as manager of one of its stores. The complaint
The defendants have interposed separate answers to the complaint and allege by way of affirmative defense the existence of a policy .of workmen’s compensation insurance procured by Davega and that the sole remedy for the injuries sustained by the plaintiff is the right to benefits under the Workmen’s Compensation Law.
On separate motions by each of the defendants for summary judgment it was contended that documentary evidence consisting of a copy of the compensation policy carried by Davega as aforesaid establishes the merit of the defense and that the plaintiff’s right to compensation under the statute precludes any action for damages.
In opposition to Davega’s motion the plaintiff submitted an affidavit of his attorney that appears to contradict the theory of the complaint in some respects. The source of the attorney’s knowledge is not stated, and no evidentiary facts are set forth regarding the circumstances of the assault. The allegation of the complaint is repeated that the plaintiff was engaged in repairing radios for Davega at the time and place of the occurrence. It is asserted, however, “ That the assault had nothing to do with the work in which plaintiff was engaged nor had it anything to do with the work upon which the defendant, Jack Levine, was engaged in at the time.” It is further alleged in conclusory fashion “ that the injuries sustained by the plaintiff did not arise ‘ out of ’ and ‘ in the course of ’ his employment, nor did they flow directly nor were they a direct consequence of his employment.”
Despite the shifting positions of the plaintiff as alleged in' the complaint and affidavit of his attorney aforesaid it is at least clear on this record that the plaintiff claims to have been the victim of an unprovoked assault by a fellow employee while engaged in the repair of radios in the course of his employment.
The provisions of the Workmen’s Compensation Law' that we deem relevant in our consideration of the case are as follows:
“ § 2. Definitions. * * * 7. ‘ Injury ’ and ‘ personal injury ’ mean only accidental injuries arising out of and in the course of employment * *
“ § 11. Alternative remedy. The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever, to such employee, * # * at common law or otherwise on account of such injury * * *99
“ § 29. Remedies of employees; subrogation. * * * 6. The right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee * # * when such employee is injured * * * by the negligence or wrong of another in the same employ.”
It is quite apparent from these provisions of the statute that immunity from suit for damages has been vouchsafed to an employer (Workmen’s Compensation Law, § 11) and to a coemployee (Workmen’s Compensation Law, § 29, subd. 6) responsible for injuries suffered by a workman as a result of an industrial accident in covered employment.
It is well settled that the injuries sustained by an employee as a result of an unprovoked or unjustifiable assault by a fellow worker in the course of the employment are compensable as accidental injuries within the meaning of the law where the assault stems from a quarrel relating to the employer’s business (Matter of Heimroth v. Elk Transportation Co., 288 N. Y. 716; Matter of Levy v. World-Telegram Corp., 285 N. Y. 533; Matter of Rydeen v. Monarch Furniture Co., 240 N. Y. 295; Matter of Knocks v. Metal Packing Corp., 231 N. Y. 78; Matter of Heitz v. Ruppert, 218 N. Y. 148). Where, however, the altercation is an independent affair or private dispute having no connection with the master’s business, or if the injured employee is the aggressor or initiates the quarrel, the injuries are not compensable as an industrial accident (Matter of Schlener v. American News Company, 240 N. Y. 622; Matter of Scholtzhauer v. C. & L. Lunch Co., 233 N. Y. 12; Matter of DeClemente v. New York State Railways, 246 App. Div. 649; Stein v. Williams Printing Co., 195 App. Div. 336; Stillwagon v. Callan Brothers, Inc., 183 App. Div. 141, affd. 224 N. Y. 714; Griffin v. Roberson & Son, 176 App. Div. 6).
On Levine’s motion for summary judgment in his favor a different question is presented. It would seem that the Workmen’s Compensation Law should not be available as a defense and that the plaintiff is entitled to prosecute Ms common-law action for damages against this defendant. The statute, of course, would have no effect on the common-law liability of Levine if the assault was the result of a private disagreement and without any connection with the employer’s business. Assuming, however, that the plaintiff was not the aggressor and that the assault arose out of a quarrel between coemployees relating to matters connected with the employment so as to make the plaintiff’s injuries compensable as an industrial accident insofar as the employer is concerned, we find nothing in the statute that requires us to construe it as affording to the perpetrator of the assault a defense based on the exclusive remedy of compensation provided for one injured by the negligence or wrong of another in the same employ (Workmen’s Compensation Law, § 29, subd. 6).
It is true that in the case of injuries to a workman resulting from the negligence of a coemployee arising out of and in the
The order denying the motion of the defendant Davega-City. Radios, Inc., should be reversed, with $10 costs and disbursements to the appellant, and the motion granted. The order denying the motion of the defendant Levine, so far as appealed from, should be affirmed, with $10 costs and disbursements to the respondent.
Concurrence Opinion
(concurring in result). In DeCoigne v. Ludlum Steel Company (251 App. Div. 662) the Third Department, which exclusively hears all appeals from determinations of the Workmen’s Compensation Board, held an employer liable in a common-law action by an employee for deliberate and intentional injuries committed by the employer through the agency of another coemployee. The court distinguished numerous, cases
This court has very recently held that an employer who willfully assaults an employee may not plead his Workmen’s Compensation coverage against a common-law action by the employee against him (Le Pochat v. Pendleton, 271 App. Div. 964, affg. 187 Misc. 296).
Hence if this record raised a triable issue as to the willful assault by the employer’s agent in the course of his employment, the employer would be liable in a common-law action in spite of the coverage by Workmen’s Compensation. So far as such injury relates to the injured employee, it is, as to his right to assert compensation, accidental. So far as the assaulting employee or employer is concerned, the act is deliberate and intentional and not accidental. This is a rational basis on which an employee may make an election either to claim compensation or to sue at common law.
But on this record plaintiff’s own papers on the employer’s motion for summary judgment exclude the conclusion that the assault occurred in the course of or arose out of the employment. In the only answering affidavit submitted on plaintiff’s behalf in opposition to the motion by the employer, it is stated that the facts relating to the assault are reserved for the trial. But on a motion for summary judgment the facts should be shown so that the court can determine the nature of the assault and whether it did in fact arise out of and in the course of employment and whether the manager, coemployee, was acting as the employer’s agent.
But that is not all. Plaintiff’s attorney further swears that the ‘ ‘ assault had nothing to do with the work in which plaintiff was engaged nor had it anything to do with the work upon which the defendant, Jack Levine \_defendant’s manager], was engaged in at the time.” (Italics ours.) Accordingly, on plaintiff’s own version of the facts, Levine, the manager, who is claimed to have assaulted plaintiff, could not have been acting as defend
Solely on that ground we concur in the result to reverse and grant the employer’s motion for summary judgment.
Except as indicated above, we concur with the majority opinion insofar as it relates to the appeal of the employee Levine.
Peck, P. J., and Cohn, J., concur with Callahan, J.; Dore, J., concurs in result in opinion in which Van Voorhis, J., concurs.
Order, so far as appealed from [by defendant employee Jack Levine] unanimously affirmed, with $10 costs and disbursements.
Order .[on appeal by defendant employer, Davega-City Radios, Inc.], unanimously reversed, with $10 costs and disbursements to the appellant and the motion granted.