dissenting:
The first and most glaring error in the opinion of my colleagues is that it misconstrues the nature of the review of the case. The decision of the Industrial Commission that must now be reviewed did not hold in favor of the claimant, but found that the claimant’s injuries did not arise out of and in the course of employment. However, the last paragraph of the opinion treats the case as one in which the Industrial Commission had found in favor of the claimant. The award of the Industrial Commission which the last paragraph of the opinion embraces was made only after the circuit court had reversed the original finding of the Commission and remanded the case. Therefore, the test that must now be applied by this court is whether that original finding in favor of the employer is against the manifest weight of the evidence.
It is well established that the resolution of disputed questions of fact is primarily the function of the Industrial Commission, which must hear and judge the credibility of the witnesses, sift the evidence, determine where the preponderance lies, and then, upon such determination, render its decision. On review, the function of this court is limited to a determination of whether the findings of the Commission are against the manifest weight of the evidence. If the evidence is conflicting or permits the reasonable drawing of different inferences, we will not set aside the decision solely because we might have made a finding different from that made by the Commission or because we might have drawn different inferences. These well-established principles were restated by this court in another assault case, Convertors, Inc. v. Industrial Com. (1975), 61 Ill. 2d 218, 223.
In our case, applying these principles, the original holding of the Industrial Commission that the injury did not arise out of and in the course of the employment must be affirmed unless that holding is against the manifest weight of the evidence. However, the opinion never mentions manifest weight of the evidence, nor does it apply that test to the finding of the Industrial Commission. Instead, after a philosophical discussion concerning bigotry, the opinion adopts a new theory of recovery in Illinois, the “neutral assault” theory. However, even to bring this case within this new theory, it is necessary to expand it into a new area. Usually, this theory of recovery has been applied to assaults by drunks and lunatics, and “assaults which are in essence equivalent to blind or irrational forces.” (1 A. Larson, Workmen’s Compensation sec. 11:31, at 3 — 224 (1978).) The opinion acknowledges that the “neutral assault” theory was suggested by Professor Larson’s text on workmen’s compensation (1 A. Larson, Workmen’s Compensation sec. 11:31 (1978)). It acknowledges, however, that Larson’s treatise cites no case in which the assault was motivated solely by ethnic prejudice and that there have been no such cases in Illinois. Thus, not only does the opinion make new law in Illinois, but it extends the “neutral assault” theory, upon which it rests, to a class of cases in which it has not previously been applied.
In sum, the majority simply does not agree with the findings of the Industrial Commission and the inferences it has drawn and has taken it upon itself to devise this new theory of recovery to permit claimant to recover. To accommodate this new theory, the majority makes its own findings of fact and draws its own inferences and concludes that the injury was caused by the ethnic prejudice of the assailant and that the danger of injury from such prejudice was also peculiar to the employment and not shared by the public at large.
The holding of the majority is based on a theory entirely different from that on which the case was tried. The claimant’s case is based on the contention that the assault was incidental to the employment because it stemmed from problems the assailant had been having with the employer’s faulty generator. The assailant had stated his dislike for Mexicans and had also stated that this generator must have been made in Mexico. Claimant’s theory of the case was that the assailant’s frustration with the faulty generator culminated in his attack, thus making the assault work related. This was claimant’s theory of recovery before the Industrial Commission and in this court. The Commission did not agree and held against the claimant.
The opinion relies on dicta in Health & Hospitals Governing Com. v. Industrial Com. (1975), 62 Ill. 2d 28, as allowing compensation on the theory of unexplained intentional assault. I wish to point out that in that case the Industrial Commission had awarded compensation and on review this court affirmed that award. In Schroeter v. Industrial Com. (1976), 62 Ill. 2d 284, this court noted that the dicta in the Health & Hospitals case should not be construed as permitting an award in every instance where the record fails to demonstrate unambiguously that the motive for the assault was based on personal reasons. Again relying on Schroeter, the court stated that it is the Commission’s function to consider the propriety of the award and that this court will not substitute its judgment for that of the Commission unless the findings are contrary to the manifest weight of the evidence.
Laboy v. Industrial Com. (1978), 74 Ill. 2d 18, is another case in which the claimant was assaulted by a co-employee and the assault occurred on the employer’s premises. The Industrial Commission denied recovery and this court affirmed. In that case there was evidence which would have supported a conclusion that the assailant was angry because of his work and thus the assault was work related. He stated that he would not do the work he was assigned to do. He threw boxes and cans on the floor and he called the claimant, with whom he was assigned to work, a bastard. Throughout the course of the day, heated exchanges occurred between the claimant and the assailant and there were instances of physical combat. After work in the washroom, the assailant struck the claimant, injuring him. However, there was also some evidence that there had been a dispute between the two concerning lottery tickets during the lunch break. This court again deferred to the finding of the Industrial Commission that the injury did not arise out of employment since there was evidence from which such an inference could legitimately be drawn. These co-employee assault cases consistently have held that the claimant must prove not only that the assault occurred in the course of the employment, but also that it arose out of the employment. These cases also hold that the court will not reverse the holding of the Industrial Commission on this question unless it is against the manifest weight of the evidence. Above all, we will not substitute our conclusions and inferences for those of the Commission simply because we may disagree.
The majority opinion in our case makes a finding that just does not conform to the facts of life. It states:
“Prejudice of this sort does not usually result in physical attacks in the world at large: it would be incorrect to say that people run the everyday risk of assault on the street or in public places because of their Mexican heritage.” 95 Ill. 2d at 174.
I do not know the source of this amazing insight. I dare say, however, that there are thousands who are capable of disproving this “verity” by a display of their scars and bruises. The assailant could just as readily have given vent to his prejudice by whacking the claimant over the head with a pool cue in a pool hall, or with a beer bottle in a tavern, or by assaulting him in any public place where they would have been brought into close proximity. In addition to being contrary to the facts of life, this statement is obviously a finding that was not made by the Industrial Commission. This constitutes an independent finding of fact and drawing of inferences and is not a review of the findings of the Commission.
Finally, insofar as assaults by co-employees are concerned, the majority opinion, in spite of its protestations to the contrary, has fairly well established the positional-risk doctrine in Illinois. It essentially eliminates the necessity of proving that the assault arose out of the employment if it occurred in the course of the employment.
I dissent.
UNDERWOOD and MORAN, JJ., join in this dissent.