dissenting.
Yet again the majority would affirm an unsupported decision of the Industrial Commission. The Commission’s denial of benefits is based upon the finding that the assault and injury of Cahala arose from a dispute that was inherently personal or private in origin and noncompensable.
The Court in Mayo v. Safeway Stores, Inc., 93 Idaho 161, 457 P.2d 400 (1969), set out three classifications for assault cases. First, those inherently related to employment arising out of work disputes; second, those inherently personal in origin where the assaults arise from disputes imported by the employee from outside the sphere of employment; and third, those neutral assaults where the cause of the assault cannot be assigned to the employment or the personal disputes of the employee. The Industrial Commission, as previously mentioned, placed Cahala's assault within the second classification. The findings of the Industrial Commission included (1) that “in the present case the evidence does not establish that the personal animosity between claimant and Kemp has any causal connection with the employment,” R., p. 12, (2) that the evidence explains the assault and injury as having arisen from the personal animosity between the claimant and his co-worker, (3) it therefore does not arise out of and in the course of the claimant’s employment. At best this is simply conclusory logic.
What was the evidence before the Industrial Commission? It consisted of a hearing before the Commission and the testimony of Robert Cahala. There was no evidence to show that any harassment occurred outside the times when Cahala was at work. Yet, the Commission concludes that the assault arose from a dispute outside the course of Cahala’s employment and was not causally connected with his employment.
There is no finding of what the cause of the dispute was, merely a conclusion that there exists what the Commission calls, first, in its findings of facts “animosity” between Cahala and Kemp, and later in its conclusions of law “personal animosity” between Cahala and Kemp. R., p. 1012. The testimony showed that a problematic relationship with Kemp had existed for approximately six years. Tr., p. 6. It was described by Cahala as a problem where Kemp “was always agitating me and calling me names.” Tr., p. 7. The Commission made no finding as to why this animosity had suddenly become personal and was disconnected from the employer’s business. The Commission merely turned to the rulings in Duerock v. Acarregui, 87 Idaho 24, 390 P.2d 55 (1964), and Devlin v. Ennis, 77 Idaho 342, 292 P.2d 469 (1956). Both of these cases involved scenarios distinct from *1023Cahala’s. Duerock was a shooting incident between a husband and wife acting as motel managers. The assault in Devlin arose because of the mutual relations between an employer and employer and a third party. What is common here is that the events precipitating the assault arose from nonemployment relationships, e.g., domestic, sexual. These types of relations are distinct from Cahala’s relation with Kemp which was comprised entirely of contacts occurring at their place of work.
The classification under Mayo attempts to separate those assaults arising from matters directly connected to employment and those arising outside the sphere of employment. The difficulty, however, is that no showing of any outside dispute exists. The only evidence consists of testimony of repeated verbal attacks on Cahala. The only aspect of the dispute which the record yields that the Commission could describe as outside the employment sphere would be the change in the tenor of Kemp’s attacks following Cahala’s guilty plea to the charge of lewd and lascivious conduct, where Kemp added the term of child mole-star to his repertoire of “offensive epitaphs.”
While this recent escalation resulted in the injury-causing altercation, there is no finding by the Industrial Commission that it constituted a personal or private dispute outside the scope of Cahala’s employment. If the Commission is terming this the personal or private dispute, it is a very narrow drawing for purposes of the Mayo classification. This would eliminate any matters not directly tied to the acts for which the individual was employed. This is not what Duerock and Devlin meant by nonemployment related. Kemp’s only relation with Cahala was within the confines of their employment. The employment relationship includes those aspects of the individuals employer:
Men do not discard their personal qualities when they go to work. Into the job they carry their intelligence, skill, habits of care and rectitude. Just as inevitably they take along also their tendencies to carelessness and camaraderie, as well as emotional make-up. In bringing men together, work brings these qualities together, causes frictions between them, creates occasions for lapses into carelessness, and for fun-making and emotional flare-up. Hartford Accident & Indemnity Co. v. Cardillo, 112 F.2d 11 (D.C.Cir.1940).
In the case of Kemp, his personal qualities included an abrasive and agitating personality. Tr., p. 7. Contending with this individual was for Cahala part of the overall working environment and relationship. Just because Kemp fueled his attacks with material from Cahala’s nonwork life does not make his dispute personal or nonemployment related. For instance, supposing Kemp’s vituperative attacks against Cahala were solely predicated upon Kemp’s distaste for Cahala’s choice of religion? Or, were just out of shear meanness and the proclivities of a bully? The entire sequence of events arose out of the fact that the work of Cahala and Kemp brought them together in a working environment where Cahala’s only avenue of escape was to surrender his employment, i.e., give up his right to earn a living.
The Commission failed to find the cause of the dispute. In turn, without having established the cause of the dispute, the Commission cannot properly say that the assault was personal, and thus outside the sphere of employment. Only by so having positioned itself was the Commission able to say that the dispute was not within the employment. The testimony as to the nature of Cahala and Kemp’s relationship provides greater weight to the contrary. Without a finding of the cause of the dispute, this case more appropriately fits into the third or neutral category where the cause of the assault is neither assigned to the employment nor to the personal disputes.
Under Mayo, with this third classification, when an injury occurs on the employer’s premises, a presumption arises that the injury arose out of and in the course of employment. Idaho has adopted what is called the positional risk rule. See Louie v. Bamboo Gardens, 67 Idaho 469, 185 P.2d 712 (1947); Foust v. Birds Eye Division of *1024General Foods Corp., 91 Idaho 418, 422 P.2d 616 (1967). When an injury results from an unexplained assault which occurs on the employer’s premises and in the course of employment, a rebuttable presumption arises that the injury arose out of the employment and is compensable. It is clear here that the assault occurred on the employer’s premises and was in the course of employment, that is, both Kemp and Cahala were presently employed and working at the time the altercation or assault occurred. The record yields no evidence which shows the employer has rebutted the burden under the positional risk rule.
An additional argument for granting compensation exists under the friction and strain rule from Hartford, supra, which holds that an assault is compensable if the work of the participants brought them together and created the relations and conditions which resulted in the assault. This argument is based upon the premise that work places individuals under strains and fatigue from human and mechanical impacts creating frictions which explode as the culmination of the pressures. The Commission concluded that the rule in Hartford did not apply here because the assault was the result of a “long-standing animosity aggravated by the claimant’s conviction for lewd and lascivious conduct which led to further agitation by the claimant’s co-worker.” The Commission then did not find a sufficient connection between the injury and the employment conditions. The testimony at the hearing and the Commission’s own findings of fact yield a different answer. The Commission’s findings of fact note that during the six-year period of harassment, Cahala complained to both the foreman and the job supervisor on several occasions about Kemp's conduct. Tr., pp. 7-9, 11. Cahala also complained to the supervisor on the date of the assault. Tr., p. 8. No action was taken by the supervisor or the foreman in an attempt to alleviate or reduce Kemp’s repeated provocations. That abuse, combined with the management’s failure to act, certainly created a situation of friction. Cahala’s testimony paints a picture of a management contentedly unconcerned with a mean employee bullying another employee. The environment was ripe for an incident such as the one that occurred:
No worker is immune to these pressures and impacts upon temperament. They accumulate and explode over incidents trivial and important, personal and official. But the explosion point is merely the culmination of the antecedent pressures. That it is not relevant to the immediate task, involves a lapse from duty, or contains an element of volition or illegality does not disconnect it from them nor nullify their causal effect in producing its injurious consequences. Hartford, supra, 112 F.2d at 17.
The surprising thing here was the length of time it took for the assault to occur.
For the above reasons, the Industrial Commission decision should not be affirmed.