dissenting. Appellant-employee Terry Bryan was involved in a quarrel with the desk clerk at the motel where they were employed. The dispute was over a purely personal matter, unconnected with their work. The desk clerk’s boyfriend took offense at some of the things Bryan said to the desk clerk and confronted Bryan at the motel. The confrontation resulted in a fight and Bryan was injured. The majority holds that even though the Commission could find, as it did, that the altercation in which appellant was injured was personal in nature, the Commission’s further finding that it “did not relate to appellant’s employment” is not supported by substantial evidence. I respectfully dissent.
The error which I believe is made by the majority today arises from its misapplication of the law pertaining to the com-pensability of an injury received by an employee in an assault. Confusion over the applicable legal principle is understandable; not because we and the supreme court have been inconsistent in our articulation of the rule, but rather because we have been fairly consistent in articulating two somewhat different statements of this legal principle in the same opinion. Westark Specialties, Inc. v. Lindsey, 259 Ark. 351, 532 S.W.2d 757 (1976); Welch’s Laundry and Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992); San Antonio Shoes v. Beaty, 28 Ark. App. 201, 771 S.W.2d 802 (1989); Burks v. Anthony Timberlands, Inc. 21 Ark. App. 1, 727 S.W.2d 388 (1987).
The first of these statements, which I will refer to as assault principle #1, is credited to Professor Larson from 1 Larson, The Law of Workman’s Compensation § 11 (1993), for the principle that:
Assaults arise out of the employment either if the risk of assault is increased by the nature or setting of the work, or if the reason for the assault was a quarrel having its origin in the work.
Westark Specialties, Inc. v. Lindsey, 259 Ark. at 353.
The other expression of the principle, which I will refer to as assault principle #2, is as follows:
The general rule applicable here has been restated several times. Injuries resulting from an assault are compensable where the assault is causally related to the employment, but such injuries are not compensable where the assault arises out of purely personal reasons. See e.g., Daggs v. Garrison Furniture Co., 250 Ark. 197, 464 S.W.2d 593 (1971); Townsend Paneling v. Butler, 247 Ark. 818, 448 S.W.2d 347 (1969); Bagwell v. Falcon Jet Corporation, 8 Ark. App. 192, 649 S.W.2d 841 (1983).
San Antonio Shoes v. Beaty, 28 Ark. App. at 203. And see Pigg v. Auto Shack, 27 Ark. App. 42, 44, 766 S.W.2d 36 (1989). Of these two statements of the applicable rule, the majority chose to rely upon assault principle #1 without mention of assault principle #2, even though both expressions were set forth in our two most recent cases in this area. Welch’s Laundry and Cleaners v. Clark, supra', San Antonio Shoes v. Beaty, supra. Clearly, assault principle #2 would bar recovery by the appellant because his injuries resulted from an assault which arose out of purely personal reasons.
I am of the opinion that these two statements of the law are, and certainly should be, reconcilable. Any apparent inconsistency between them can be remedied by simply recognizing that the reference to an increased risk of assault in assault principle #1 means that the risk of “this sort of’ assault, or an assault “of this nature,” is increased by the nature or setting of the work. Assault principle #1 could then be expressed as follows:
Assaults arise out of the employment either if the risk of this sort of assault is increased by the nature or setting of the work, or if the reason for the assault was a quarrel having its origin in the work.
By implication, the majority has erroneously applied this principle as if the adjective “any” preceded the word “assault,” i.e.:
Assaults arise out of the employment either if the rise of any assault is increased by the nature or setting of the work, or if the reason for the assault having its origin in the work.
The interpretation which I submit is the correct one would leave injuries from assaults arising out of purely personal reasons non-compensable and be perfectly consistent with assault principle #2.
The majority has found as a matter of fact that appellant’s security guard responsibilities increased his risk of being assaulted. Assuming there is a basis for this “fact,” although the Commission made no such finding, the majority then imposes workers’ compensation liability on the employer without regard to the reason for or nature of the assault on the appellant-employee. The majority imposes this responsibility even though the assault was purely personal. This is unnecessary and clearly outside the purpose of the workers’ compensation law to provide benefits for an employee’s injury “arising out of . . . employment.” Ark. Code Ann. § 11-9-401(a)(1) (Supp. 1993).
The fallacy of the majority’s position can be illustrated by altering the facts of the case at bar in only one respect. Assume that, as a result of the quarrel between the security guard Terry Bryan and the desk clerk, it was not the desk clerk’s boyfriend who assaulted the security guard, but was rather the security guard’s girlfriend who assaulted the desk clerk. Because the risk of assault is not increased by the nature of a desk clerk’s work, her injuries would not be compensable. It would be inequitable and illogical to treat these two employees differently.
To further illustrate the absurd consequence which could result from the majority’s holding, assume that while on duty a police officer is assaulted by his/her spouse as a result of a purely personal, domestic quarrel which occurred a few hours earlier. Because the nature of a police officer’s work exposes the officer to an increased risk of assault, an application of the majority’s rationale would require the officer’s injuries to be compensable.
The Commission’s finding that the assault resulting in appellant’s injuries arose out of a purely personal quarrel is supported by substantial evidence. Although the majority agrees on this point it needlessly extends coverage to assault injuries which could not have been within the contemplation of the legislature when the workers’ compensation law was enacted. I submit that neither a security guard nor a police officer is exposed, because of the nature of his or her work, to a greater risk of an assault arising out of a purely personal dispute.
I would affirm the Commission’s decision.
Cooper, J., joins in this dissent.