Petro v. Martin Baking Co.

v. MARTIN BAKING COMPANY HENRIETTA PETRO AND ANOTHER.1 May 15, 1953. 35,941. No. 1Reported in 58 N. W. Green, Kenneth for relators. and W. Spence

Thomas J. Savellcoul, respondent. for William Gunn Donald G. D. and Christianson, Justice. grant- to review an order commission

Certiorari to the industrial encounter between following physical a ing compensation for death Baking Company. two employees of the Martin by Baking Martin employed was Balent Petro, Decedent, feet, 51 about five years old, He was driver-salesman. as a Company and from heart pounds, suffered weighed about tall, inches five over the driver-salesmen supervisor Edward Stokes was condition. required him to Decedent’s route pounds. about weighed and than 2y2 to 3 hours earlier begin a.m., work about 2:30 was December he began 21, 1950, other work. On driver-salesmen left arrived already employer’s premises had his when the others about 5 their and prepare a.m. load trucks to make their de- On that Stokes morning, loading liveries. was a truck preparatory regular one of the drivers. the presence route of taking also a brother, who was driver-salesman for com- of decedent’s dam bags Stokes “That Balent Petro stole some out of pany, said, my brother asked Stokes why thought truck.” Decedent’s decedent had taken replied, them and Stokes I saw him bags “Because take out of A trucks before.” short time later another driver missed a from his basket truck and inquired happened what had to it. Stokes in replied, again the presence of decedent’s brother, “Balent Petro probably took it. might He take anything.”

Decedent’s brother than called decedent’s home him to tell what he was accused of doing. Decedent was not home so his brother talked to wife, decedent’s who petitioner is the proceedings. these Later that morning decedent called L. manager A. sales for Rosen, company, accusations, and about threaten- complained Stokes’s ing punch Except Stokes the nose. for the fact that decedent told his brother the was “after” following December that he day, Stokes, nothing discloses, further far the record so occurred, until the afternoon of made the days December two after Stokes accusations.

About two o’clock afternoon decedent had returned company garage unloading route to the and was his truck. His wife him garage was at the near when standing by Stokes came and spoke her. Decedent Stokes called a vile name made remark some to him regarding Stokes’s days accusations earlier. This remark was by followed an exchange of words between decedent and Stokes, including a threat the former to punch Stokes nose. Decedent advanced toward “put Stokes both up” “dukes.” After a short exchange, attempted exchange, blows, men fell grappled, the two to the scuffling continued floor, a few minutes until got Stokes top decedent. At this point decedent’s came to wife aid, gave the two men up fight and got up the floor. After some more words decedent returned to his truck and Stokes left the scene. Stokes returned shortly and the two men again fell grappled, to the floor, scuffledfor a few min- utes, and then separated. The details of how this second encounter began are not clear.

Following the Meyer second encounter, Herman, owner and man- ager of the Martin Baking Company, was summoned from his office and he came into garage and ordered decedent and Stokes to stop arguing. He also directed them go to into the officewith Rosen and get their difficulties straightened out. complied Stokes immedi- ately but decedent balked and Herman had him again go to tell to attempted get into Rosen’s office. Rosen to the two men to settle differences, stating they all had work to and live together, argument but the the shouting reaching at times such continued, that it could by volume be heard those During outside the office. the discussion decedent suddenly slumped back the settee in a few minutes he from a heart attack. suffering office,

Rosen’s was dead. that decedent’s hearing who conducted the determined

The referee in the injury arising out of and from an accidental death resulted petitioner. to compensation and awarded employment course of affirmed the commission On to the industrial appeal commission, the referee’s and the award. findings jurisdiction

This case raises for the time in this the issue first may whether a in a “aggressor” so-called work-connected altercation recover compensation injuries workmen’s received the alter Early history cation. in the compensation law, of our workmen’s this injury resulting court determined that an from an assault one employee upon another arose out of the where the employment provoked assault was aby quarrel over matter some connected with the work.2 But we have never before been faced with the whether an injury the employee to who initiates the assault can be said to have arisen out of within meaning M. S. A. 176.02. The majority jurisdictions that have passed upon the question have compensation refused an “aggressor” even though the dispute was some on work-connected, theory did injury not arise out of the others employment,3 because of statutory granted defenses employer.4 Recently, however, four jurisdictions granted have persons injured disputes without regard in work-induced the fact that were they prefer We aggressors.5 reasoning jurisdictions. of the latter 1, 2Hinchuk v. Swift & Co. 149 Minn. 622.W. g., 115, (2d)

3E. 478; Fischer v. Industrial Ill. Comm. 408 96 N. E. (2d) Fond, 915; Horvath v. La 305 Mich. 8 N. W. v. Vollmer Industrial (2d) Comm. 254 Wis. 35 N. W. 304. g., City (La. App.) (2d) 601;

4E. Burkhardt v. of Monroe 37 So. Federal Exchange Samuel, v. Tex. Underwriters 160 S. W. Comp. (2d) 659, Ins. Fund v. Industrial Acc. Comm. 38 Cal.

5State Case, 102, (2d) 69; (2d) 311; 324 Mass. 85 N. E. P. Dillon’s Newell v. (2d) 439, 476; Moreau, H. 55 A. Commr. of Taxation & Finance v. 708, (2d) Hospital, App. Div. 97 N. Y. S. 120. The ex Bronx 276 views approval have received the pressed four decisions of one the lead- these reasoning Rutledge, four of Justice Basic to those decisions is the for the District Appeals then of the United States Court of Cardillo, App. Hartford Acc. & v. D. C. Columbia, Ind. Co. F. aggressor. a case in which the claimant was not an

Justice Rutledge reasoned is not dispute employees that a between necessarily from rele- disconnected their work because it has no or to further vancy tendency work, to the immediate task from lapse duty, volition, involves a or contains an element of anger. The fundamental is whether illegality, personal the claimant injured, merely employ- was not while he was at his ment, but because he was at his touch with asso- employment, ciations and from inseparable conditions it. stated (72 App. He D. C. 112 F. 15) : [2d] * * “* well as condi- the environment includes associations as * * * include the associations faults and derelictions

tions, Men beings human as well as their virtues and obediences. do personal qualities they go not discard their when to work. Into job they carry intelligence, habits of care and recti- skill, tude. Just as inevitably they along take also their tendencies to carelessness and well emotional camaraderie, make-up. as bringing men together, brings qualities work these causes together, frictions between them, creates lapses occasions for into careless- ness, and for fun-making and ñare-up. emotional Work could not go on if men became repressed expres- automatons natural every sion. ‘Old Man River’ is part ex- loading steamboats. These pressions of human nature are inseparable working incidents together. They involve risks of injury and inherent these risks are in the working environment.”

Having accepted views, those was further only step short allow compensation regard without as the four cases aggression, referred to above have done. When the accumulated pressures ing The compensation. Horovitz, Liti commentators in the field of workmen’s gious “Arising Employment, Phrase: 19, 47, 53; out 4 NACCA L. J. of” Horseplay Laws, Compensation Horovitz, Assaults and Under Workmen’s 311, 343, 41 Ill. L. Rev.

work-induced or work-aggravated finally erupt strains frictions affray into an which results in one injury participants, of the it is artificial say injury that an to the one who struck the first blow did not arise of out the employment injury but to the recipient of that blow did out of employment. arise the Therefore, opinion, it would be in our that death in clear, decedent’s the instant case would have arisen employment out if Stokes’s unjustified accusations had been made if decedent’s presence, decedent’s the curse, argument between the two and the men, resultant physical encounter had immediately followed after the accusations. Martin Baking Company

The and its insurer contend, how ever, lapse days that of two between Stokes’s accusations and him upon decedent’s attack makes the work connection too remote to permit quite recovery. They assert, correctly, that no decision which has awarded to an aggressor gone has so far as to permit recovery where nursed a two grudge for argument his attack. Their days making before not without say is not to that we should apply merit. This to workmen’s com proximate cases the doctrine of from pensation cause the law or the negligence6 concept cooling-off from period the law of homicide. But where the pressures explode physical that into action from private accumulate brooding period over an extended than from the human impacts rather and frictions of the working it environment, may justly questioned be whether the connection is not too injury permit tenuous to between injury arose out employment. said that of the properly to be must be attributable in substantial pressures part The accumulated Their causal effect must not been working environment. have and nullified outside influences. overpowered n connecting in the Looking injury facts instant case to animosity the decedent’s we find that his toward his employment, unjustified supervisor stemmed the latter’s made accusations, Trinity Lodge, 255; Minn. 6Olson v. 32 N. W. Hanson v. Co. 209 Minn. 297 N. W. 19. Robitshek-Schneider hags out of that had baskets presence, decedent’s decedent taken used their work from for all drivers; that, the trucks of other appears other record, the two men did not see each during the days elapsed and the between the accusations assault; that when decedent confronted Stokes at the first oppor tunity with the latter’s men argument accusations the two had an encounter followed from this them; physical directly about that decedent’s excited condition continued while argument; and manager the two at the direction the owner and men, manager’s were in the sales company, attempting office to settle their differences over the of factors, accusations. view all these and keeping in that of findings mind the industrial commission are great entitled to weight and will not be disturbed on review manifestly unless contrary to the evidence,7 say we cannot commission erred in finding that the decedent’s heart fatal attack arose out of and the course of employment. his Our is function not to determine whether on the facts the decision of the commis sion is or correct, preferable even but another, rather, and only, to determine whether findings have sufficient basis of inference reasonably to be drawn from the facts.8 employer

The and its insurer attempt to bring this within case a statutory phrase exclusion from the “personal injuries arising out of and in the course of employment.” This exclusion is found 176.01, provides subd. which 11, § phrase shall not include:

“* * * an injury by caused the act of a third person or fellow employee intended injure employee because of per- reasons sonal and him, not against directed him as an employee, or because of his employment.” is based argument, however, upon the assumption

Their that dis- personal two men grudge between the was pute fight, initiated by Montgomery 485, v. & Co. (2d) 797, Ward Inc. Minn. 7Graf 49 N. W. cited. and cases Adent, 540, (2d) 545, 681, Minn.

8Hansen W. v. not out of the did arise by Stokes, and' defended decedent from the work-connected was too remote employment because of disposed by It has been the commission’s accusations. thus find- v. L. S. ing foregoing and the discussion. The cases of Goodland Wooley In re v. Donaldson Co. 227 Minn. 36 N. W. Minneapolis by Co. 196 N. W. cited Equipment 157 Minn. 428, employer its insurer, distinguishable are facts. of com finding the industrial determined

Having of and in the course arose out decedent’s death mission that compen we next whether the upheld, consider must be by of an against recovery award an provides a defense sation act only statutory The defenses that bar or dependents. or death of an injury employee an award em arising in the course of Ms by accident out caused (1) or 176.02, injury are the two contained in ployment namely, § self-inflicted, which is or death intentionally (2) injury death naturally employee. caused the intoxication proximately has but and its raised, employer been intoxication No he from suffering a man who knows where that, insurer contend will must know that an assault be resisted and who a heart condition injuries him assault, such resulting initiates nevertheless “intentionally In our are self-inflicted.” how opinion, assault statutory contemplates deliberate language intent on ever, injury to cause or death employee himself, of the anot part probable consequences realize the to himself part failure acts. foolish of insurer further contend that legis and its employer

The has intoxication, the defense indicated that by providing lature, or unlawful misconduct from those excepted things wilful not has it a proceeding defenses and that proper are law, upon based sound interpretation public a reasonable aggressor of the defense. adoption an We do not requires policy, provided the specifically has legislature defenses The agree. provided aggression not that is a It has above. defense, mentioned have, some other states that mis- wilful provided, not it has is a injure or wilful another conduct, unlawful intent conduct, defenses defense.9 Under we will not read such these circumstances removing into the far in con- legislature gone act. If the too has in it is tributory compensation, fault as factor workmen’s legislature to correct that action. close, nothing is in the question presented we find

Although the indus- justify reversing would our the decision record which trial follows that its be affirmed. decision should commission, discharged Writ affirmed. order

Respondent attorneys’ allowed fees over and her $250 above costs and disbursements. (dissenting).

Frank T. Justice Gallagher, I agree principle While with enunciated in the majority injury, employee that an received opinion an altercation resulting dispute with another from a work-connected or accusation, may arise out the course of the employee’s employment notwithstanding injured the fact that the employee was the aggres- I agree sor, cannot with results reached in the instant case. It seems to me that under the facts and circumstances here we are going entirely too far to say effect that whenever an employee makes an against accusation a fellow employee, as in the instant case, compensation be can if a fight collected develops between the employees the time first meet they again on premises whenever may be. To do so would time tend to encourage the nursing which, if grudges permitted or animosities to be brooded over, usually generate additional hatreds and ill feelings.

I go along could with the if majority the altercation here resulted spontaneously within few hours after the provoking incident. were However, early accusations made in the morning of De- cember 21, and the trouble did not occur until the afternoon of 9It should be jurisdictions noted some rejected have despite presence defense of one or more such defenses in their acts. Case, (2d) 69;

Dillon’s 324 Mass. 85 N. E. Moreau, Newell v. 94 N. H. (2d) 476; 55 A. Commr. of Taxation & Finance v. Hospital, Bronx App. Div. Y. S. had of the accusations message meantime, the 23. In the.

December and wife to decedent’s brother from decedent’s transmitted been manager later the sales the latter called to her decedent man- accuser. The sales his punch morning threatened that it” telling “forget him by “smooth it out” tried to ager apparently day decedent the next by Again meant the remarks. nothing was finally the accuser, after his he was told brother that for the first time after day he met Stokes afternoon the third immediately. trouble almost the accusation the started time elapsed between the my opinion, entirely too much time resulting when the accusations were and the altercations made or time say us to it was even within a reasonable spontaneous that and therefore that death arose out of in the course decedent’s It seems to do will be to the employment. open me that so floodgates in employee disputes connection with and accusations permit which will the carrying grudges week, on of for two days, or a month, consequences possible resulting with whenever serious the conflicting parties premises. reasons, first meet on the For these I respectfully dissent. (dissenting). Justice

Knutson, stretching our meaning to me that we are work- It seems far under here, men’s statutes too even liberal when in- usually given statutes, construction such we hold that juries arise out and in the course when suffered deliberately an by employee who becomes the assault provocation without at time assault employee a fellow upon satisfy grudge he has personal been purely place but takes grounds merely grudge on the had days, nursing for two remotely relating employment. to their in a statement origin its holding for so is based on the view justification Apparently opportunity had no earlier to commit workman injured employees had of the not sooner paths because assault injured to the relayed were em- spoken the words after crossed to overhear the remarks made. happened who his brother ployee if injured result would be what well wonder might One had seen his fellow workman but decided that it employee had if opportunity they would better to wait until a better or arose, be off premises had met the street or elsewhere the of the employer, on. injured but he they the workman had decided that would wait until were on .the of if premises employer so that he he were hurt could collect compensation. going are here. It gone

No court has as far as we would be one thing aggressor may injured recover when in a to hold an fight something out of arising spontaneously job said the —a question necessity not involved here and which I see no deciding of holding now. Even that to contrary weight is of authority.10 is quite It another to hold thing aggressor that an can still recover though even he days has two in which cool off. If the is test be that he must take the first opportunity to secure satisfaction of I continuing grudge, suppose it would be immaterial whether he waited days or two just long weeks so their paths as not did cross. I cannot believe injuries suffered under circum- these stances can be said to arise out of and in the course of the employ- ment. I feel compelled to respectfully dissent. Justice

Dell, (dissenting). to allow an who is my opinion, employee clearly an aggressor compensation in a to recover fight his employer in- juries employee sustained a result of the fight, to allow dependents employee of the to recover compensation benefits for his death as a result of occurring fight, contrary to all justice, no and there is cause of preservation which is more sacred than justice.

the cause of The workmen’s compensation act should re- ceive a broad and liberal in construction of interest the work- man to carry out the policy purpose However, act. given should not be a strained construction —one that language fairly reasonably support. of the act does not The legislature workmen from the many the law to relieve enacted common-law de- by employees and the difficulties encountered fenses in actions in- 10 See, Schneider, (Perm, Compensation ed.) 1560(g), Workmen’s § p. 179. pur- Its and servant. the rule of master application

volving injuries sustained for accidental workman pay is to pose by his death occasioned benefits compensation dependents pay It is a wholesome negligence. to the regard without in- compel as to so liberally It should be construed salutary law. when injuries by employees sustained for accidental dustry pay Where, employment. in the course injured engaged while in a in he is the injuries fight receives however, employee an has said, my opinion, employee it cannot be aggressor, and in of his injuries arising suffered accidental out of the course my directly for such are traceable judgment, injuries, to the own To employee’s aggression. place acts a construction upon the workmen’s compensation permitting employee act who fight is the to recover from his em- ployer carrying far beyond act for which it purposes was intended and for which it was enacted.

1In Larson, Workmen’s Compensation the fol- Law, 11.15(a), § lowing is stated:

“The which have considered the great majority jurisdictions aggression express statutory defenses have apart held admittedly fight in an work-connected can- compensation.” not recover been decisions from recently juris- there have some

It is true that foregoing rule. However, relaxation of indicating some dictions majority jurisdictions followed the rule I feel rule. is the sound question11 on the passed have 781; 579, App. Haynie, 159 S. E. 43 Ga. Bag Mills v. Cotton 11Fulton & 274; 143, App. E. Fischer 177 S. 50 Ga. Cab Co. Black & White v. Kimbro Triangle Painting 478; (2d) 115, Auto E. Ill. 96 N. 408 Industrial Comm. v. 886; 609, E. Horvath Ill. Trimming 346 Comm. Co. v. Industrial & Long-Turner 915; Const. (2d) v. 69, Staten Fond, 8 N. W. Mich. 305 v. La Power Co. 375; Texas-Louisiana (2d) v. Garrett App.) (Mo. 185 S. W. Co. Inc. 10 N. J. Gillespie Co. 809; T. A. Merkel v. App. 141 So. La. 19 23 N. J. Misc. Sportswear Co. 250; Philmac Brown v. A. 162 Misc. 162, 35 N. W. 254 Wis. Comm. 805; Industrial (2d) v. Vollmer A. ed.) 1560(g), (Perm, Compensation § Schneider, 304; Workmen’s p. 179. with, concededly necessity

Since we confronted of adopt- are a new ing applied rule as the workmen’s law and I- because disagree majority with the rule announced in the opinion, I respectfully dissent.

JESSIE L. PETERSON v. WALTER LANG.1

May 15, 1953. 35,972. No. 1Reported in 58 W. N.

Case Details

Case Name: Petro v. Martin Baking Co.

Court Name: Supreme Court of Minnesota

Date Published: May 15, 1953

Citation: 58 N.W.2d 731

Docket Number: 35,941

Court Abbreviation: Minn.