On the 28th day of February, 1956, Carl David Brantley, hereinafter called claimant, filed his first notice of injury and claim for compensation stating that on April 2, 1955, while employed by the Oxford Hotel he sustained an accidental injury arising out of and in the course of the employment when he was struck on the head in a hotel room. The State Industrial Commission denying an order found in part as follows:
The order was affirmed by the Commission en banc and this proceeding is brought by the claimant against the employer and its insurance carrier, Hartford Accident and Indemnity Company, a corporation, to review the order denying the award.
Because it reveals better than any analysis of the evidence we copy a part of the statement made by claimant given on April 15, 1955:
The only difference in the statement and the testimony of claimant is that in his testimony he definitely fixed room 331 as the room he entered. Respondents emphasize what claimant said as to why he was being robbed and the claimant argues that the statement was made soon after the incident and should not be used against him. We disregard the statement insofar as it discusses the conclusion as to why he was being robbed because we are of the opinion that his conclusion about what was happening does not constitute evidence in the absence of showing of some physical action by the assailant to support such conclusions. The State Industrial Commission must decide from all the facts and circumstances whether the assault by a third party was personal to the claimant or an assault committed in connection with the business of the employer. There is evidence from which the State Industrial Commission was authorized to find that room 231 was occupied by two residents of northwestern Oklahoma in no way connected with any crime or assault; that room 331 was occupied by two marines and that investigation by the police disclosed these marines had regular travel orders and that the investigation further disclosed that the occupants of this room were in no way connected with any crime or assault. No one was ever apprehended or held or charged with the assault.
In Indian Territory Illuminating Oil Co. v. Lewis, 165 Okl. 26, 24 P.2d 647, claimant as was his custom, had returned at night to the premises of the employer and was engaged in making up the records when he was shot after resisting a robbery directed against him personally. In Stanolind Pipe Line Co. v. Davis, 173 Okl. 190, 47 P.2d 163, 164, claimant was assaulted by former employees by reason of a personal grudge. In both of these cases it was held the accidental injury did not arise out of and in the course of the employment. In Stanolind Pipe Line Co. v. Davis, supra, we said:
In Cordell Milling Co. v. State Industrial Commission, 173 Okl. 195, 47 P.2d 168, an employee of a flour mill sent by the employer to deliver supplies was assaulted by a robber. This court likewise held that the accidental injury did not arise out of and in the course of the employment.
Although there are cases to the contrary which perhaps announce the majority rule insofar as the number of cases is concerned, see 112 A.L.R. 1262 et seq. and annotations prior thereto, our court has adopted the rule that an employee who sustains an accidental injury due to assault by a third person does not sustain an accidental injury arising out of and in the course of the employment if the assault is personal to the employee. Each case cited by claimant may be distinguished by a finding or evidence that the person who assaulted the particular claimant did so by reason of something connected with the business of the employer. See Dillon v. Dillman, 133 Okl. 273, 272 P. 373, where claimant was attempting to protect the property of employer. Yellow Cab Co. v. Wills, 199 Okl. 272, 185 P.2d 689; Royster v. McCoy, Okl., 293 P.2d 587, and other cases cited by claimant can likewise be distinguished.
In Standish Pipe Line Co. v. Johnson, 197 Okl. 238, 169 P.2d 1018, we said:
There is competent evidence reasonably tending to support the finding of the State Industrial Commission that the accidental injury did not arise out of and in the course of the employment.
WELCH, C.J., CORN, V.C.J., and HALLEY, JOHNSON, BLACKBIRD, JACKSON and CARLILE, JJ., concur.