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Bagai v. Jagdev Bajwa
By JUDGE CHARLES H. DUFF This matter is before the Court for determination of the Pleas in Bar filed by Defendant, System Auto Parks and Garages, Inc., on September 28, 1978, and by Defendant, Jagdev Bajwa, on November 2, 1978. Both pleas are identical and present the applicability of § 65.1-40 of the Workmen’s Compensation Act. After careful examination of the pleadings, the authorities cited, and the able argument of counsel, I am of the opinion that the pleas must be sustained.
The issue presented is whether an employee may maintain an action at law for injuries inflicted by a co-employee where the latter was acting within the scope of his employment when the injuries were inflicted. In Slusher v. Paramount Warrior, Inc., 336 F. Supp. 1381 (W.D. Va. 1971), it was held that an employee had no cause of action against another party for injuries received while working for his employer unless that other party was a stranger to the business and the work being done.
Whether a defendant was an independent contractor or a fellow servant, the plaintiff was limited to workmen’s compensation if the defendant was engaged in the business of plaintiff’s employer when the injuries were sustained. See Lucas v. Biller, 204 Va. 309 (1963). An award under the Workmen’s Compensation Act is the exclusive remedy where ,an employee of the company subject to the Act is injured by a fellow 475 employee. Phillips v. Brinkley, 194 Va. 62 (1952); Ferrell v. Beddow, 203 Va. 472 (1962).
The mere fact of injury of one employee by another is not the determinative question. The issue is whether the injuries arose out of and in the course of employment. In the case at Bar, the Motion for Judgment alleged in Paragraph 3 that Plaintiff and Defendant Bajwa were employed by Defendant, System Auto Parks and Garages, Inc. Paragraph 8 alleges that at the time and place of the alleged assault, Defendant Bajwa was acting within the scope of his employment with the corporate Defendant.
Thus the question presented in many such cases, namely did the assault arise out of the employment relationship, is answered by the Plaintiff’s pleading in the case at Bar. I have no choice but to sustain the pleas.