Claim of Griffin v. A. Roberson & Son

Cochrane, J.: This case presents the inquiry as to whether a workman who in anger commits an assault upon a fellow-workman and as a result thereof receives an injury is within the protection of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41). Unless such injury arose “out'of” the employment within the meaning of subdivision 7 of section 3 of the act, the claim cannot be sustained. (See § 10.) Under the facts as found by the Commission, Griffin was the aggressor. He became angry over a slight and unimportant incident which the Commission has characterized as an “accident” and in his anger committed a crime by assaulting his fellow-servant and thereby was himself injured. It has been held in different cases that when a servant in the course of his employment is assaulted by another he may sometimes be entitled to compensation. Such was the case of Carbone v. Loft, decided without opinion by this court (174 [8] App. Div. 901) and by the Court of Appeals (219 N. Y. 579). This is on the theory that the injured servant is protecting his master’s property or promoting his master’s interest, or that the assault on him was in some way incidental to the duty which he owed his master. But what duty to the master requires a servant to commit a crime ? When Griffin lost, his temper and assaulted Cartwright he was not promoting or enhancing in any legitimate sense the interest of-his employer, but he stepped outside the scope and sphere of his employment to serve a personal mental condition. In Matter of Heitz v. Ruppert (218 N. Y. 148) it was said: “The injury must be received (1) while the workman is doing the duty he is employed to perform, and also (2) as a natural incident of the work. It must be one of the risks connected with the employment, flowing therefrom as a natural consequence and directly connected with the work. * * * The employer may be badly or carelessly served by two men engaged in his work, and yet it may be inferred, when one injures the other in a quarrel over the manner of working together in a common employment, that the accident arose out of the employment and was not entirely outside of its scope, if it was connected with the employer’s work and in a sense in his interest.” Now in this case it was not “ a natural incident of the work ” nor was it in any sense in the interest of his employer that Griffin lost his temper and as a result thereof assaulted his fellow-employee. This case is clearly distinguishable from the Heitz case, because in that case it did not appear as" a matter of law that Heitz was the aggressor or violated any legal or ethical propriety. The altercation in which he became engaged was in connection with his work and in the interest of his employer, and it cannot be said as a matter of law that Heitz in the occurrence which caused his injury manifested any animosity or did anything more than to remonstrate with his fellow-servant for what the former considered an improper method in the performance of the work. In Matter of De Filippis v. Falkenberg (170 App. Div. 153), Mr. Justice Lyon has with much care and labor collated many cases bearing on the question of the right of an employee to compensation. Most of them are cases where the accident [9] arose as the result of horse play or sportiveness. It has generally been held in such cases that acts arising therefrom are outside the scope of the employment. The case at bar is very similar in its essential and controlling features to the case of an accident arising out of horse play. Diametrically opposite motives, it is true, occasion the injurious acts in the two classes of cases, but in both classes of cases the purpose is to gratify a personal desire. In one class of cases the motive is a spirit of frivolity or playfulness. In the other the motive is anger, animosity or vindictiveness. But in both the purpose is not to serve the master’s interest, hut to serve a momentary personal emotion of the employee. Whether the stirring of the mind be due to sportiveness or to vindictiveness, it is in both cases personal to the employee and the purpose of the act which brings about the injury is to serve that impulse of the employee and such act neither in fact does nor is it intended to subserve the interests of the master nor is it in any proper sense incidental thereto. In the De Filippis Case (supra) it was said: “ A test spoken of in the case of Plumb v. Cobden Flour Mills Co., Ltd. (7 B. W. C. C. 1), as a sound and convenient test in determining whether the injury arose out of the employment is whether it is in the scope or sphere of the employment. The injury in the case at bar was not a peril of the service, nor was it reasonably incidental to the employment. It was not an assault which had its origin in the nature of the employment, nor was in any way whatever connected with the master’s work. In Matter of McNicol (215 Mass. 497) the court said: 'It [an injury] " arises out of ” the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can he seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises "out of”' the employment.’” Applying the test of the foregoing principle to the present case it seems quite clear that this claim does not measure up to [10] such test. The injury was not a peril of the service nor reasonably incidental thereto. It arose wholly from a voluntary act of Griffin entirely unnecessary, and not in the protection or advancement of the master’s interest nor connected therewith. It was nothing more or less than the gratification of his personal feeling of animosity. No reasonable inference can be drawn which legitimately or fairly demonstrates that the injury to Griffin was an incident of his work. There was no causal connection between the work and the injury which resulted from the independent and affirmative and unjustifiable act of Griffin. This seems to have been clearly an injury which did not arise “ out of ” the employment. It was rather outside of the employment and one which grew out of a situation inaugurated by the injured employee himself for his individual purpose. The award should be reversed and the claim dismissed. All concurred, except Kellogg, P. J., who dissented in an opinion.