STATE COMPENSATION INS FUND v. INDUSTRIAL ACCIDENT COMMISSION

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District Court of Appeal, First District, Division 2, California.

STATE COMPENSATION INS. FUND et al. v. INDUSTRIAL ACCIDENT COMMISSION et al.

Civ. 14613.

Decided: January 08, 1951

Donald Gallagher, Royle A. Carter, San Francisco, for petitioners. Edmund J. Thomas, Jr., Industrial Accident Commission, San Francisco, for respondents.

Petitioner asks us to annul an award made to the employee Hull for injuries received in a fight with his foreman in which the respondent commission expressly found that Hull ‘was the aggressor.’

Whatever view we might be disposed to take of this question were it entirely novel in this state we are bound by two decisions of the Supreme Court which expressly state the rule that while an injury received in a quarrel arising out of some dispute connected with the employment may be compensable, this is not true where the injured employee is the agressor. Globe Indemnity Co. v. Industrial Accident Comm., 193 Cal. 470, 225 P. 273; Globe Indemnity Co. v. Industrial Accident Comm., 2 Cal.2d 8, 12–13, 37 P.2d 1039.

There is nothing in any of the later California cases cited by respondents which limits this rule as applied to aggressors. In the related field of injuries received from horse-play the Supreme Court recently overruled a series of its earlier decisions in Pacific Employers Ins. Co. v. Industrial Accident Comm., 26 Cal.2d 286, 158 P.2d 9, 159 A.L.R. 313, but the case was carefully limited to an award to one who was not a participant in the sportive conduct. While this decision may indicate a disposition on the part of our highest court to reexamine some of its earlier decisions in cases arising from injuries inflicted by fellow employees, we are bound to follow its decisions until such time as that court turns its back on them. No purpose would be served by this court reviewing the out of state authorities in the face of the two decisions of our own Supreme Court which are controlling.

Award annulled.

DOOLING, Justice.

NOURSE, P. J., and SCHOTTKY, J., pro tem., concur.

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