{ "id": 1582026, "name": "PEREZ v. FRED HARVEY, Inc. et al.", "name_abbreviation": "Perez v. Fred Harvey, Inc.", "decision_date": "1950-10-03", "docket_number": "No. 5264", "first_page": "339", "last_page": "346", "citations": [ { "type": "official", "cite": "54 N.M. 339" }, { "type": "parallel", "cite": "224 P.2d 524" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "37 N.M. 525", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575392 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/37/0525-01" ] }, { "cite": "43 N.M. 397", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568295 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/43/0397-01" ] }, { "cite": "46 N.M. 412", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563046 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/46/0412-01" ] }, { "cite": "54 N.M. 197", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1581999 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/54/0197-01" ] }, { "cite": "85 F.2d 418", "category": "reporters:federal", "reporter": "F.2d", "opinion_index": 0 }, { "cite": "42 A.2d 5", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "195 P.2d 919", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "86 Cal.App.2d 726", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2268360 ], "opinion_index": 0, "case_paths": [ "/cal-app-2d/86/0726-01" ] }, { "cite": "159 A.L.R. 313", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "158 P.2d 9", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "26 Cal.2d 286", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 2168407 ], "opinion_index": 0, "case_paths": [ "/cal-2d/26/0286-01" ] }, { "cite": "42 A.2d 3", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "132 N.J.L. 590", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 137766 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/njl/132/0590-01" ] }, { "cite": "85 F.2d 417", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 925065 ], "opinion_index": 0, "case_paths": [ "/f2d/85/0417-01" ] }, { "cite": "66 App.D.C. 160", "category": "reporters:state", "reporter": "App. D.C.", "weight": 2, "opinion_index": 0 }, { "cite": "49 N.M. 4", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841142 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/49/0004-01" ] }, { "cite": "123 A. 844", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "102 N.E. 697", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "215 Mass. 497", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 85182 ], "opinion_index": 0, "case_paths": [ "/mass/215/0497-01" ] }, { "cite": "10 N.E.2d 527", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "274 N.Y. 517", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2024818 ], "opinion_index": 0, "case_paths": [ "/ny/274/0517-01" ] }, { "cite": "292 N.Y.S. 588", "category": "reporters:state", "reporter": "N.Y.S.", "opinion_index": 0 }, { "cite": "249 App.Div. 884", "category": "reporters:state", "reporter": "A.D.", "case_ids": [ 5169024 ], "opinion_index": 0, "case_paths": [ "/ad/249/0884-01" ] }, { "cite": "122 A. 172", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "278 Pa. 52", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1080595 ], "opinion_index": 0, "case_paths": [ "/pa/278/0052-01" ] }, { "cite": "67 Idaho 469", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 4544968 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/idaho/67/0469-01" ] }, { "cite": "202 S.W.2d 649", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "184 Tenn. 700", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8531673 ], "opinion_index": 0, "case_paths": [ "/tenn/184/0700-01" ] }, { "cite": "195 N.W. 329", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "181 Wis. 513", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8693859 ], "opinion_index": 0, "case_paths": [ "/wis/181/0513-01" ] }, { "cite": "40 A.L.R. 1119", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "123 A. 843", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "100 Conn. 373", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 1640867 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/conn/100/0373-01" ] }, { "cite": "120 N.E. 532", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "112 A. 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J., and LUJAN, SADLER and McGHEE, JJ., concur.", "BRICE, C. J., and LUJAN, SADLER and McGHEE, JJ., concur." ], "parties": [ "PEREZ v. FRED HARVEY, Inc. et al." ], "opinions": [ { "text": "COMPTON, Justice.\nThis is a proceeding under the Workmen\u2019s Compensation Act.\nAppellant, Clarinda Perez, while employed by appellee, Fred Harvey, \u00ednc., as \u00e1 housemaid in the employer\u2019s hotel at Albuquerque, New Mexico, was shot and seriously injured by Rumaldo Padilla, a fellow servant. The cause was tried to a jury and at the close of the case the trial court sustained appellees\u2019 motion for a directed verdict and entered judgment dismissing the complaint. The question for decision is whether this action of the trial court was error. \u2022 \u25a0\nThere was evidence of the facts to follow before the jury. About 3:30 p. m., May 20, 1949, Padilla, houseman of the employer, entered a room where appellant was cleaning a dresser, locked the door and then said to her, \u201cClara, turn around.\u201d As she turned, noticing that he held a small pistol in his hand, she asked, \u201cWhat are you going to do, Ray?\u201d, and without explanation he shot appellant in' the face, thereby inflicting a severe .injury from which'she has not fully recovered. \u2019 He then turned the weapon upon himself, inflicting a chest wound. For a time she was under medical care at St. Joseph\u2019s Hospital, incurring considerable expenses.\nDrinking upon the premises by employees was prohibited, a regulation known both to appellant and her cousin, Ida Otero, a fellow servant. About 10:30 a. m., that day, Padilla admittedly consumed the equivalent of four drinks of whiskey but continued his work as a houseman in \u2019 the \u25a0 hotel. At the noon hour he purchased a half pint of whiskey and drank most, if not :all, of it previous to the assault. Around 3:00 p. m., Ida'Otero, another housemaid '\u25a0working on the same floor as appellant, noticed Padilla\u2019s condition and that he had a bottle on his person. She requested appellant to assist her in taking the bottle ; from him. When appellant offered to help he said to her, \u201cDon\u2019t get near me. If ypu get near me I will let you have it.\u201d It was noticed that he was highly nervous, \u201cshaking all over.\u201d Manifestly, he was intoxicated, his face was flushed, he resisted and in struggling with them he tried to throw appellant to the floor; nevertheless, she .grabbed his hands and Ida Otero removed the bottle from his pocket. He said nothing more, went downstairs and immediately returned and assaulted appellant.\nAppellees contend that appellant suffers from a noncompensable assault. Endeavoring to sustain the contention, they offered .evidence tending to show that the injury resulted from purely personal motives. They called the assailant, who testified that he and appellant were sweethearts and that the injury was the result o'f a distorted love affair between them. He says they were to be married, depending upon her . father\u2019s consent, but that appellant wanted \u25a0 to' postpone the marriage for a while; that about ten days previous to the assault he had received a call for military duty and that appellant\u2019s refusal to marry him immediately and the fact that he was soon to enter military service so depressed him that he decided, the day previous to the assault, that he would kill appellant and then commit suicide. They were to see appellant\u2019s father on the very evening of the assault when Padilla was to ask his consent to marry her. Padilla disclaims shooting appellant because of anger at the part she had taken in dispossessing him of the bottle. 'In response to questions'on cross-examination, he stated he shot appellant because he was drunk and claimed not to remember shooting her.\nAs we view the matter, three theories present themselves in the evidence, under one of which no recovery could be sustained and under either of the other two, should the jury be persuaded to adopt either, there is sufficient evidence to support ,a verdict authorizing an award of compensation. If the injuries to appellant resulted from purely personal motives such as the distorted love affair testified to by the , assailant. who, fearing . his sweetheart would not await his return from military service to marry him, resolved to slay her and commit suicide, there could be no recovery. The jury should be so instructed. Industrial Commission v. Strome, 107 Colo. 54, 108 P.2d 865; Scholtzhauer v. C. & L. Lunch Co., 233 N.Y. 12, 134 N.E. 701; Harden v. Thomasville Furniture Co., 199 N.C. 733, 155 S.E. 728; Elrod v. Union Bleachery, 204 S.C. 481, 30 S.E.2d 73; Bridges v. Elite, Inc., 212 S.C. 514, 48 S.E.2d 497.\nOn the other hand, if the jury should believe appellant\u2019s injuries resulted from an assault on her induced by anger, chagrin or even humiliation on the part of her assailant at being dispossessed by two female co-employees of his bottle of liquor while on duty with him in their respective jobs, we think it could reasonably be inferred there was causal relationship between such injuries and the work on which all were engaged. The reasonableness of this conclusion is emphasized by virtue of the knowledge possessed by each of the female employees of the employer\u2019s regulation against drinking liquor while on duty. There is a well defined line of decisions supporting recovery of compensation for injuries inflicted in an assault, by one employee upon another following a quarrel having a causal relationship to the work on which they are engaged. The injuries so incurred are then said to arise out, as well as in the course, of the employment. Atolia Mining Co. v. Industrial Acc. Commission, 175 Cal. 691, 167 P. 148; Stulginski v. Waterbury Rolling Mills Co., 124 Conn. 355, 199 A. 653; Withers v. Black, 230 N.C. 428, 53 S.E.2d 668; Pekin Cooperage Co. v. Industrial Commission, 285 Ill. 31, 120 N.E. 530; Maryland Casualty Co. v. Cardillo, 69 App.D.C. 199, 99 F.2d 432. Annotation 15 A.L.R. 588 with intervening supplemental annotations to 112 A. L.R. 1258.\nIn Pekin Cooperage Co. v. Industrial Commission, supra, the Supreme Court of Illinois in sustaining a claim for compensation for injuries inflicted by one employee upon another in a fight arising over their work had the following to say, to. wit: \u201cWhere men are working together at. the same work disagreements may be expected to arise about the work, the manner of doing it, as to the use of tools, interference with one another, and many other details which may be trifling or important. Infirmity of temper, or worse, may be expected, and occasionally blows and fighting. Where the disagreement arises out of the employer\u2019s work in which two men are engaged, and as a' result of it one injures'the other, it may be' inferred that the injury arose out of the employment.\u201d [285 Ill. 31, 120 N.E. 532.]\nThere was substantial evidence, if believed, to go to the jury on. the issue of whether the appellant\u2019s injuries resulted from anger or chagrin on assailant\u2019s part at being relieved of his liquor, carried on the job in violation of working regulations, and in his drunken condition a source of potential danger to his female co-workers. If the jury should find this was the inducing cause of the shooting, they should be told they are authorized to return a verdict in favor of. the appellant. At the same time they should be instructed that, if they believe the shooting resulted from the assailant\u2019s resolve to kill his sweetheart (appellant) and then commit suicide, there is no liability and their verdict should be for the appellees (defendants).\nThere is also evidence in the record which, appraised in one aspect by the jury and a verdict based on it, would support an award of compensation. The assailant under cross-examination admitted he was highly intoxicated as reflected by the further admission that he had no recollection of having fired the shot which injured appellant. There was testimony, too, from both co-workers, the appellant and her cousin, Ida Otero,, that he was intoxicated. If the jury on such evidence should find appellant\u2019s assailant so highly intoxicated that he didn\u2019t know what he was doing, his acts would fall in the same category as those of an insane person, whether fellow employee or not, suddenly running amuck and injuring an employee. An injury so inflicted is held to arise out of the employment. Anderson v. Security Building Company, 100 Conn. 373, 123 A. 843, 40 A.L.R. 1119; John H. Kaiser Lumber Co. v. Industrial Commission of Wisconsin, 181 Wis. 513, 195 N.W. 329; Whaley v. Patent Button Co., 184 Tenn. 700, 202 S.W.2d 649; Louie v. Bamboo Gardens, 67 Idaho 469, 185 P.2d 712. The same conclusion has been drawn in some decisions as to injuries inflicted upon an employee while in the course of his employment by a drunken stranger or co-employee. O\u2019Rourke v. O\u2019Rourke, 278 Pa. 52, 122 A. 172; Wakefield v. World-Telegram, 249 App.Div. 884, 292 N.Y.S. 588, affirmed 274 N.Y. 517, 10 N.E.2d 527. Cf. In re McNicol, 215 Mass. 497, 102 N.E. 697, L.R.A.1916A, 306. If the assailant inflicting an injury on a workman in the course of his employment is so highly intoxicated that memory has passed from him, we can see no difference in principle so far as the question at issue is concerned between acts done by him and those of an insane man. The rationale of the decisions insofar as they apply to injuries inflicted by an insane man, are well stated in Anderson v. Security Building Company, supra. The court said: \u201cWhenever an employer puts his employees at work with fellow servants the conditions actually existing, apart from the possibility of willful assaults by a fellow servant independent of the employment, which result in injury to a fellow employee, are a basis for compensation under the implied contract of that act. So in this case, although the employer may not have had knowledge actual or constructive that Markus, a fellow servant of the plaintiff, was insane and liable to run amuck, yet such liability of Markus to run amuck was in fact a condition under which the plaintiff was employed on the night in question, and, if'such condition of Markus caused an injury to the plaintiff, as it did, then the injury to the plaintiff arose out of his employment as truly as if it had arisen from the negligence of Markus in doing his work.\u201d [100 Conn. 373, 123 A. 844.]\nDecisions from other jurisdictions reflecting the rule of liberal construction to which this court is committed, Lipe v. Bradbury, 49 N.M. 4, 154 P.2d 1000, are cited as follows: Hartford Accident & Indemnity Co. v. Hoage, 66 App.D.C. 160, 85 F.2d 417; Giracelli v. Franklin Cleaners & Dyers, Inc., 132 N.J.L. 590, 42 A.2d 3; Pacific Employers Ins. Co. v. Industrial Accident Commission, 26 Cal.2d 286, 158 P.2d 9, 159 A.L.R. 313 (overruling five earlier decisions) ; Pacific Indemnity Co. v. Industrial Accident Commission, 86 Cal.App.2d 726, 195 P.2d 919.\nIn Giracelli v. Franklin Cleaners & Dyers, Inc., supra [132 N.J.L. 590, 42 A.2d 5], a sales clerk went to a rear room in search of a garment for a customer, and was there criminally assaulted by the customer. It was held that she met with an accident which arose out of and in the course of the employment within the meaning of the workmen\u2019s compensation law, the court saying : \u201cIn the case before us the petitioner\u2019s presence in the rear room was a necessary part of her employment and in the prevailing circumstances she was exposed to the attack that took place. It was not something that happened to her as a member of the general public. Indeed, it is not too much to say that at the time she was acting in obedience of the employer\u2019s direction in attending to the customer. * * * \u201d\nIn Hartford Accident & Indemnity Co. v. Hoage, supra [66 App.D.C. 160, 85 F.2d 418], the plaintiff was attacked by a drunken or crazed stranger while at work in the employer\u2019s kitchen and the court, in sustaining the award, said: \u201cWe are of the opinion upon the undisputed facts in this case that the claimant\u2019s 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\u2019s 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 \u25a0 duty, when upon the industrial premises of his employer, and while he was engaged at the work for which he was employed.\u201d\nIt is to be remembered that this case was determined below' by the trial court\u2019s action in sustaining a mo'tion for directed verdict against the appellant (plaintiff). In such circumstances, the court must view a plaintiff\u2019s evidence in the most favorable aspect, indulging all reasonable inferences to be drawn from plaintiff\u2019s evidence and disregarding all unfavorable testimony and inferences. Michelson v. House, 54 N.M. 197, 218 P.2d 861; Mesich v. Board of County Com\u2019rs of McKinley County, 46 N.M. 412, 129 P.2d 974; Sandoval County Board of Education v. Young, 43 N.M. 397, 94 P.2d 508; Hepp. v. Quickel Auto & Supply Co., 37 N.M. 525, 25 P.2d 197.\nSo viewing the evidence of the plaintiff below, appellant here, we are constrained to hold that the trial court erred in instructing a verdict against her.\nAppellant requests this court to fix fees for her attorney in representing her on appeal. Sec. 57-923, N.M. Stats. Annotated, provides: \u201cThat where compensation, to which any person shall be' entitled under the provisions of this act, * * * shall be refused and the claimant shall thereafter collect compensation through court proceedings in an amount in excess of the amount tendered by the employer prior to the court proceedings, then the' compensation to be paid the attorney for the claimant may be increased at the discretion of the court trying the same, or the Supreme Court upon appeal, to such amount as the court may deem reasonable and propgj* \u2021 ^\nThe recovery of compensation is a prerequisite to the allowance of attorney fees. Her request must now be denied.\nThe judgment will be reversed with directions to the trial court to reinstate the case upon its docket, grant appellant a new trial and proceed in a manner not inconsistent herewith.\nIt Is So Ordered.\nBRICE, C. J., and LUJAN, SADLER and McGHEE, JJ., concur.", "type": "majority", "author": "COMPTON, Justice." }, { "text": "On Motion for Rehearing.\nCOMPTON, Justice.\nUpon motion for rehearing appellees, among other things, urge that our opinion as it now stands amounts to a direction to the trial court upon a subsequent hearing to direct the jury to enter a verdict \u25a0for appellant, if it should find that her assailant at .the time he shot her was so drunk he could not remember doing so. To avoid any possible confusion, we will clarify the matter by saying that we did not so intend, if the jury believes he got himself into that condition to bolster his nerve to the point of committing the assault planned because of love frustration.\nThe motion will be denied and it is so ordered.\nBRICE, C. J., and LUJAN, SADLER and McGHEE, JJ., concur.", "type": "rehearing", "author": "COMPTON, Justice." } ], "attorneys": [ "W. T. O\u2019Sullivan, Joseph L. Smith, Albuquerque, for appellant.", "Rodey, Dickason & Sloan, Frank M. Mims, Jackson G. Akin, Albuquerque, for appellees." ], "corrections": "", "head_matter": "224 P.2d 524\nPEREZ v. FRED HARVEY, Inc. et al.\nNo. 5264.\nSupreme Court of New Mexico.\nOct. 3, 1950.\nRehearing Denied Nov. 21, 1950.\nW. T. O\u2019Sullivan, Joseph L. Smith, Albuquerque, for appellant.\nRodey, Dickason & Sloan, Frank M. Mims, Jackson G. Akin, Albuquerque, for appellees." }, "file_name": "0339-01", "first_page_order": 363, "last_page_order": 370 }