Writ of Certiorari Denied June 3, 1940. See 60 S.Ct. 1100, 84 L.Ed. ___.
RUTLEDGE, Associate Justice.
The appeal is from an order of the District Court dismissing the complaint of the
On October 10, 1938, the claimant Bridges, "while employed as a helper in the employer's [Sanitary Grocery Company, Inc.] produce warehouse and engaged in loading vegetables on the employer's truck, sustained personal injury resulting in his disability when a co-worker assaulted him suffering a laceration of the right eyebrow and a fracture of the right maxilla; * * * that the work performed by the claimant was supervised by a checker, Roy Downey; that in directing the claimant in the performance of his duties Downey addressed the claimant as `Shorty'; that the claimant resented being called `Shorty' and when Downey continued to so address the claimant, the latter called Downey a vile name; that Downey thereupon struck the claimant a blow on the right side of the face with his fist, inflicting the injuries above described; that the claimant did not strike or attempt to strike his superior, Downey; that Downey was the aggressor in the assault * * *." From these facts the deputy commissioner concluded "that the injury had its origin in the employment and that it arose out of and in the course of the said employment."
It is not contended that the injury did not occur "in the course of the employment," since it took place at the very time that Bridges was loading the truck for the employer. But the arguments of the plaintiff are directed against the finding that it "arose out of" the employment. Plaintiff asserts that the assault by Downey upon Bridges was caused by a purely personal quarrel, which had no relation to their work and, therefore, that the injury is not compensable. This is predicated on the facts as found and on other evidence not mentioned in the findings. That was to the effect that for about two months Downey and Bridges, while at work, had engaged in friendly banter concerning the respective merits of their watches, which was renewed on the morning of the injury. It is claimed that this led to the altercation and made it an entirely personal quarrel, unrelated to the work.
The statute creates a presumption "in the absence of substantial evidence to the contrary — (a) That the claim comes within the provisions of this chapter."
We have held that where an employee's work exposes him "to a risk or hazard to which the general public is not exposed, and an injury results therefrom, the injury arises out of and in the course of the employment."
In Hartford Accident & Indemnity Co. v. Hoage, 1936, 66 App.D.C. 160, 85 F.2d 417, 418, these principles were extended to an unexplained attack by a stranger, taking place on the employer's premises. The claimant was a chef, at work in the kitchen when attacked with a knife by a man he had never seen previously and apparently did not see again after the assault. The opinion states: "We are of the opinion upon the undisputed facts in this case that the claimant's injury arose out of his employment, because the terms and conditions of his employment placed the claimant in the position wherein he was assaulted by the assailant and sustained the injuries from which he suffered. * * * It is true that claimant's injury was inflicted by a drunken or crazed stranger and was not such a danger as would ordinarily be apprehended by either the employer or the employee. Nevertheless, it was suffered by the claimant when at his place of duty, when upon the industrial premises of his employer, and while he was engaged at the work for which he was employed."
The opinion relied specifically upon the New Amsterdam decision in ruling that no more is necessary than that the work subject the employee to a peril which comes from the fact that he is required to be in the place where it strikes when it does so. It is immaterial whether the place is the employer's premises or a street; whether the risk arises from physical features or human agencies connected with the place; whether it is a common occurrence or an extraordinary happening; one which threatens only employees at work or others also. That this is true appears also from the opinion's reliance upon cases from other jurisdictions. Among these are Entrocut v. Paramount, etc., Co., 1928, 222 App.Div. 844, 226 N.Y.S. 808, where a waiter in a restaurant was shot when a revolver being cleaned by a policeman waiting to be served went off accidentally or negligently, and Greenberg v. Voit, 1929, 250 N.Y. 543, 166 N.E. 318, where a janitor cleaning his employer's front steps was killed by gangsters who passed through the adjacent street shooting indiscriminately from an automobile. The last case adds the feature that volitional, criminal action may be a peril of the working environment. In Maryland Casualty Co. v. Cardillo, 1938, 69 App.D.C. 199, 99 F.2d 423, we followed out the logic of the New Amsterdam and Hartford decisions, in sustaining an award where an assistant cook in a restaurant was killed by a fellow worker (said to be of lower rank) in an altercation which arose because the latter resented the former's criticism of his manner of peeling potatoes. Referring to the Hartford case, we said: "A fortiori if, as here, a quarrel over work leads one employee to strike another, the resulting injury arises out of the employment."
No common denominator for the cases can be found in the nature of the specific act or event which is the immediate cause of the injury. Whether it is "natural" or abnormal, occurs on or off the employer's premises, consists in the action of physical or human agencies and, if the latter, is reflex or volitional, lawful or unlawful, by one deranged or responsible, the common element is to be found in a broader and more fundamental principle. It is stated by Cardozo, J., in Leonbruno v. Champlain Silk Mills, 1920, 229 N.Y. 470, 128 N.E. 711, 13 A.L.R. 522, as follows: "The claimant was injured, not merely while he was in a factory, but because he was in a factory, in touch with associations and conditions inseparable from factory life." Not the particular or peculiar character of the associations and conditions, but that the work creates and surrounds the employee with them is the basic thing.
Nor is it necessary, as these cases show, that the particular act or event which
Recognition that this is so came more easily as to physical than as to human forces. As with street risks, the early disposition in cases of human action was to emphasize the particular act and its nature, except anomalously when it involved merely negligence of the claimant or fellow employees. The statutory abolition of common law defenses made easy recognition of the accidental character of negligent acts by the claimant and fellow servants. The extension to their accidental (i. e., nonculpable, but injurious) behavior was not difficult. So with that of strangers, including assault by deranged persons, and their negligence intruding into the working environment. But these extensions required a shift in the emphasis from the particular act and its tendency to forward the work to its part as a factor in the general working environment. The shift involved recognition that the environment includes associations as well as conditions, and that associations include the faults and derelictions of human beings as well as their virtues and obediences. Men do not discard their personal qualities when they go to work. Into the job they carry their intelligence, skill, habits of care and rectitude. Just as inevitably they take along also their tendencies to carelessness and camaraderie, as well as emotional make-up. In bringing men together, work brings these qualities together, causes frictions between them, creates occasions for lapses into carelessness, and for fun-making and emotional flare-up. Work could not go on if men became automatons repressed in every natural expression. "Old Man River" is a part of loading steamboats. These expressions of human nature are incidents inseparable from working together. They involve risks of injury and these risks are inherent in the working environment.
But resistance to application of the broad and basic principle has been most obstinate perhaps where the particular act immediately causing injury involves responsible volition by the claimant or others. The extreme instances are those containing an element of illegality or criminality. The horseplay and assault cases are illustrative. Confusion and conflict still reign in these realms.
Several factors have sustained the resistance. One is the hangover from common law conceptions of profiting by one's own wrong. But this applies as well, in logic, to contributory or one's own exclusive negligence. Another was the now thoroughly dissipated notion that voluntary responsible action cannot be accidental. The volitional character of the act also raised a supposed analogy to "independent, intervening agency" in tort causation. There was, further, an assumed essential opposition between "personal" acts and those of an "official" (i. e., related to the work) character. An assault necessarily involves emotional make-up and disturbance. In a broad sense nothing is more personal. Quarreling is always so. This accounts for the early disposition to regard all injuries from wilful assault as not compensable,
But differences remain as to when work causes quarrels. So long as the claimant is merely the victim, not a participant, it makes little difference whether the
The limitation, of course, is that the accumulated pressures must be attributable in substantial part to the working environment. This implies that their causal effect shall not be overpowered and nullified by influences originating entirely outside the working relation and not substantially magnified by it. Whether such influences have annulling effect upon those of the environment ordinarily is the crucial issue. The difference generally is as to the applicable standard. It is not, as is frequently assumed, the law of "independent, intervening agency" applied in tort cases.
This provision, reinforced by the statutory presumptions and the Act's fundamental policy in departing from fault as the basis of liability and of defense, except as specified, is inconsistent with any notion that recovery is barred by misconduct which amounts to no more than temporary lapse from duty, conduct immediately irrelevant to the job, contributory negligence, fault, illegality, etc., unless it amounts to the kind and degree of misconduct prescribed in definite terms by the Act. It is entirely inconsistent with reading into the statute the law of tort causation and defense, where liability is predicated on fault and nullified by contributory fault.
It follows that the judgment must be affirmed. Taking full account not only of the findings but of all the evidence, it is clear that the entire sequence of incidents
Fazio v. Cardillo
The judgment is affirmed.
STEPHENS, Associate Justice, concurs in the result.