Appeal, No. 371, Oct. T., 1962, from judgment of Court of Common Pleas of Cumberland County, Sept. T., 1960, No. 169, in case of Thomas S. McBride, Jr. v. Hershey Chocolate Corporation. Judgment affirmed.
James D. Flower, with him Myers, Myers & Flower, for appellant.
William R. Mark, with him Mark and Mapel, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
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Thomas S. McBride, the plaintiff, recovered a verdict in this action in trespass against his employer for personal injuries sustained on November 18, 1958, when Kline, a fellow employe seized a hose which the plaintiff was holding and discharged a scalding
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mixture of steam and water directly on his face, arms and chest. The principal question raised by this appeal is whether the injuries upon which the suit is based were the result of personal animosity toward the plaintiff, McBride, upon the part of the fellow employe who inflicted them. The court below concluded that there was ample evidence in the record to support the jury's special finding that the injury was the result of personal animosity between McBride and Kline, refused the defendant's motion for judgment n.o.v., and entered judgment on the verdict. The court held that the further special finding that the animosity arose out of the employment did not affect the plaintiff's right to recover in this suit.
1. The legislature has expressly excluded from the coverage of The Pennsylvania Workmen's Compensation Act "... an injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment ..." Act of June 2, 1915, P.L. 736, art. III, § 301(c), as amended, 77 PS § 411. In such case the injured employe may pursue his common law remedy in trespass. Dolan v. Linton's Lunch, 397 Pa. 114, 152 A.2d 887 (1959); Restatement, Torts § 317.
As stated by the Supreme Court: "... if the attack is directed against the employee for personal reasons not connected with his employment, even though the assaulted employee is at that time pursuing the business of his employer, the legislature has stated in specific terms that the resulting injury is not an 'injury by an accident in the course of his employment' as that term is used throughout the act ..." Dolan v. Linton's Lunch, supra, at page 119, 152 A.2d at page 890. "... The act excludes from its coverage attacks upon an employee whether or not they occur while he is pursuing his employer's business and whether or
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not they are caused by the condition of the employer's premises or by the operation of his business or affairs thereon so long as the reasons for the attack are purely personal to the assailant. In such a case the plaintiff ...