Appeal, No. 316, Oct. T., 1962, from judgment of Court of Common Pleas of Berks County, June T., 1960, No. 29 (April T., 1962, J.D., No. 488), in case of Jennie E. Readinger et vir v. John T. Gottschall et ux. Judgment affirmed.
John S. Speicher, for appellants.
Donald F. Spang, with him David J. Batdorf, for appellees.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 201 Pa. Super. Page 135]
The chief question raised by this appeal is whether there can be a recovery in a trespass action by an employe for an assault upon him by his employers. This question has not heretofore reached our appellate courts but this is the second case in which a common pleas court has held that there can be a recovery. The cases in other jurisdictions are divided.
Mrs. Readinger, the wife-plaintiff, after working for the defendants, Mr. and Mrs. Gottschall, from May 9 to 11, 1958, was told by telephone on May 12th that her services were no longer required and that she should come for her pay on May 14th. When she came to the premises for her pay, as directed, a dispute arose as to the amount of wages due. According to the plaintiff's testimony Mr. Gottschall grabbed her shoulder and the back of her neck. Then his wife grabbed her by the left arm and started spinning her, and kept spinning her out through the main kitchen to the door. Then Mrs. Gottschall pushed her out the door and she stumbled outside and tried to straighten up. When she straightened up she felt something crack in her back.
There was a sharp conflict of testimony but the jury brought in a verdict in the plaintiffs' favor in the sum of $10,000. The court below refused the defendants' motions for judgment n.o.v. and a new trial upon a remittitur of all of the verdict in excess of $3,588. The court below held that (1) at the time of the assault Mrs. Readinger was no longer an employe of the defendants and was doing nothing in the way of furthering their business and (2) an intentional assault by an employer is not covered by The Workmen's Compensation Act. Since the court below was correct, in our opinion, on the second point, which is determinative,
[ 201 Pa. Super. Page 136]
we need not decide whether the wife-plaintiff was still in the employ of the defendants at the time of the assault.
Two theories upon which recovery in trespass may be sustained are suggested in cases from other states with similar statutes. The first, followed in Minnesota and Arkansas, is that the assault breaks the continuity of the employment and gives the employe the option to proceed under the act or to sue in trespass. The second, the New York and New Jersey rule, is that a deliberate assault by an employer is not covered by the act and suit must be brought in trespass.
Minnesota allowed recovery in trespass in Boek v. Wong Hing, 180 Minn. 470, 231 N.W. 233 (1930), holding that while an "accident" under their statute includes an intentional assault, yet when an employe is assaulted by his employer he has the election (1) to continue the employment and sue under The Workmen's Compensation Law or (2) to consider the wilful and malicious assault as a termination of employment and sue on a common ...