dissenting.
I dissent for the following reasons. The resolution of this case depends upon the application of the facts to the cases of Skinner v. Martin (1983), Ind.App., 455 N.E.2d 1168, and Martin v. Powell (1985), Ind.App., 477 N.E.2d 943. The issue is whether Grow's actions, resulting in Seil er's injuries, arose out of and in the course of his employment, or whether they were the result of a personal, non-job-related activity. IND.CODE 22-8-2-6 provides that the remedies under the Workmen's Compensation Act are exclusive. However, IND.CODE 22-3-2-13 permits the injured workman to pursue a cause of action against a third person, other than the employer or a fellow servant, even though he has received workmen's compensation benefits from his employer. In Skinner v. Martin, supra, the facts revealed that, while Skinner was on a coffee break, Martin approached him and requested him to perform some job-related task. Verbal insults ensued which led to an altercation wherein Martin struck Skinner. We held that the injury arose out of the course of employment because the source of the al*632tercation was work related, citing Payne v. Wall (1921), 76 Ind.App. 634, 132 N.E. 707. Because the injury was work related and Skinner and Martin were co-employees, Skinner's exclusive remedy was workmen's compensation, and Martin was immune under IND.CODE 22-38-2-13.
In Martin v. Powell, supra, Rebecca Martin was injured while at work, by horseplay initiated by her fellow servant, Powell, when he upset her chair. Martin sued Powell in tort. Citing Block v. Fruehauf Trailer Division of Fruehauf Corp. (1969), 146 Ind.App. 70, 252 N.E.2d 612, we noted that Rebecca Martin was injured while acting in the course of her employment, but Powell was engaged in conduct personal to himself. Therefore, Powell was not entitled to invoke the immunity granted to fellow servants. We distinguished Skinner v. Martin, supra, because there, Martin's activity was work related, and was not a personal matter. We also said that in the context of the facts of that case, it was irrelevant whether Rebecca Martin applied for and received workmen's compensation because, absent immunity, Powell had a third-person tort-feasor status. |
Block, supra, stated that an innocent, non-participating victim of a fellow servant's horseplay was entitled to workmen's compensation for injuries. Likewise, an innocent, non-participating victim of a fellow servant's assault may be compensated. Indiana University Hospitals v. Carter (1983), Ind.App., 456 N.E.2d 1051. This is so because, from the perspective of the innocent, injured workman, the injuries arose out of and in the course of the employment. It does not necessarily follow, however, that, from the perspective of the co-employee tortfeasor, the same act arose out of and was in the course of the employment. If the act did not arise out of and in the course of employment, but was personal or private in nature to the co-employee tortfeasor, immunity will be denied him, and he will be classified as a third-party tortfeasor. As stated in Martin v. Powell, the Workmen's Compensation Act was not designed to insulate co-employees from acts which were not in the course of the employment.
There remains the question of whether the facts, for summary judgment purposes, fall within the holdings of cither Skinrer v. Martin or Martin v. Powell. In Grow's deposition, filed in support of the motion for summary judgment, he stated that he personally owned the pistol in question. He did not know why Tilson was there, but he had brought the pistol to demonstrate its operation to Tilson and Seiler. She wanted a pistol for protection when she was alone in the tavern from "weirdoes" who sometimes come to taverns. In the process of the demonstration, a cartridge remained in the pistol after the clip had been removed, so when Grow pointed it to the floor and pulled the trigger, it discharged, wounding Seiler in the foot. In her Form 12 Application for Workmen's Compensation she stated, "Employee was accidentally shot by owner when he was demonstrating the use of gun." Record at 74. That evidence, standing alone, shows that Seiler's injury was job related, and that Grow could claim immunity under Skinner v. Martin. It therefore became incumbent upon Seiler to go forward and present a sufficient amount of evidence to create an issue of fact to escape summary judgment.
To that end Seiler points to evidence presented by her that Grow, not Maxron, owned the pistol. She neither carried nor owned a weapon. Tilson arrived at 11:30 a.m. and, without explanation, said he had an appointment to see Grow. When Grow arrived he brought the pistol from his office to the bar area, and the men began to talk about an automatic. When asked in her deposition about any conversation about the gun, Seiler answered, "Just that Les told Jerry he wanted to buy a gun; that he was looking to buy a gun. And I didn't pay any attention because I was busy." Seiler Deposition at 88. Seiler further presented evidence in her deposition that when Grow came to the hospital to see her, he told her to tell the insurance company the same story he told them so she could get her workmen's compensation. The story was "that he was showing [her] *633how to use the gun"; she replied, "Okay." Seiler Deposition at 38. Seiler applied for workmen's compensation and received it.
I am of the opinion that such evidence presented by Seiler does not create an issue of fact that tends to rebut Grow's evidence. She has never denied any of Grow's statements. Tilson's statement was a casual statement to Jerry Green that he wanted to buy a gun, not Grow's gun. There was no evidence that Grow was engaging in a private matter of selling his personal pistol to Tilson, as Seiler argues, which would cereate a non-work-related situation. There is no evidence that Grow was off duty, as Seiler argues, for he was not only the president and manager of The Grow's Nest, but he came in daily. The fact that she was not paying attention does not rebut the fact that he was demonstrating the pistol to her.
The majority makes an unwarranted assumption as to what the evidence shows. They assume it shows Grow was demonstrating the pistol to Tilson as a prospective purchaser, or was showing it off to Tilson and Green when the gun discharged. Such is speculation.
I would affirm the decision.