I dissent.
In my view, the Workmen’s Compensation Appeals Board erred in determining on the record before it that the injury was not sustained in the course of employment, and the order of the board should be annulled. The majority do not deal with this question but hold that Mrs. Busick’s claim foi* workmen’s compensation benefits has merged in her judgment for damages for personal injuries. The question of merger could not have been and was not determined by the board, and I believe that this court on the record before us cannot properly determine whether or not there has been a merger. To determine the question as the majority have done deprives Mrs. Busick of any opportunity to prove facts which might show that no merger has occurred. Because the majority decision is based on the merger doctrine I will treat that issue first.
The majority rely upon section 64 of the Restatement of Judgments which states: “Where the plaintiff obtains judgment for the payment of money against the defendant in an action to enforce one of two or more alternative remedies, he cannot thereafter maintain an action to enforce another of the remedies.” (Italics added.) Comment f of that section, which is not discussed by the majority, sets forth the obvious limitation on the rule: “The rule stated in this Section is not applicable where the plaintiff is entitled to two or more remedies which are cumulative and not alternative. This is the situation where the plaintiff is entitled to two kinds of relief, and the relief sought in one action could not be obtained in the other action.” (Italics added.)
Damages for assault and battery and workmen’s compensation benefits cannot be obtained in the same forum in California, and the crucial ques*981tion presented is whether those remedies are cumulative or alternative in the circumstances of the instant case.
The subject is specifically dealt with by section 3601 of the Labor Code, which makes the remedies mutually exclusive in some situations but cumulative in others. The section provided in part at the times relevant here that where “the conditions of compensation exist,” the compensation remedy is exclusive against the employer or any other employee of the employer “except that an employee . . . shall, in addition to the right to compensation against the employer, have a right to bring an action at law for damages against such other employee, as if this division did not apply, in the following cases: [1[] (1) When the injury or death is proximately caused by the willful and unprovoked physical act of aggression of such other employee. . . .”
Section 3359 of the Labor Code, which, like section 3601, is found in division 4 of the code, provides that a “working member of a partnership receiving wages irrespective of profits from such partnership is an employee under this division.”
It is- clear from the foregoing statutory provisions that Mrs. Busick, who was shot by Mr. Albright, has cumulative rather than alternative remedies and is not barred by the merger doctrine if Albright was a working member of a partnership receiving wages irrespective of profits. In other words, she would be entitled to both compensation benefits from the board and damages, and there could be no merger. On the other hand, if Albright was the sole proprietor of Albright Express Company, her remedies would be alternative, and, as the majority conclude, her claims would merge in the superior court judgment. The crucial question presented in determining the merger question thus is whether Albright was a working member of a partnership receiving wages irrespective of profits.
It must be recognized that the partnership question was not presented to the board and was not material at the time the board rendered its decision on rehearing.1 At that time the question presented was whether Mrs. Busick’s injury arose out of and occurred in the course of employment. If this question had been answered in the affirmative, as it should have been, she would have been entitled to benefits, and it would have been *982immaterial whether or not Albright Express Company was a partnership. If the question had been answered in the negative, as the board erroneously answered it, she was not entitled to benefits, and again it would have been immaterial whether or not Albright Express. Company was a partnership. Accordingly, it must be concluded that the partnership issue was not material and could not have been material in the case presented to the board.2
The partnership question only became material to these proceedings after the superior court judgment became final, and it did not become final until after these proceedings were pending on review. Since the partnership issue depends on factual determinations and since such determinations were not material to the proceedings before the board, it seems improper to me for the majority to proceed to make those determinations, as they have done, on the record before us. It seems to me that the proper procedure is to return the case to the board to permit it to take evidence to determine whether there has been a merger or whether Albright was a working member of a partnership receiving wages irrespective of profits.
There are a number of evidentiary matters which might bear on the issue of partnership which are nof shown by the record before us because there was no reason to place them in evidence either before the board or the superior court. For example, documentary evidence such as the certificate of the Public Utilities Commission or the fictitious name statement of Albright Express Company might indicate that the firm, was a partnership. Likewise, it would now be relevant whether Mrs. Albright is continuing the business after her husband’s death as. executrix of his estate or as surviving partner. But the point need not be belabored; it is clear to me that Mrs. Busick is entitled to a day in court where she can produce evidence on the partnership issue. The majority deny her that day in court. Contrary to the suggestion in the majority opinion (see p. 975), the problem is not whether Mrs. Busick will get two days in court; she will get two days in court only if she is entitled to them under section 3601 of the Labor Code; in any event she is entitled to one day in court to determine the partnership question; and the majority have denied her any days in court on that issue.
The denial of the right to present evidence on the partnership issue is especially unfair in that it is the majority and not Allstate which have pleaded, attempted to prove, made findings for the board, and then decided *983that the case is barred by the merger doctrine. Although Allstate has urged that the claim for workmen’s compensation benefits is barred by res judicata, it has never relied on the merger doctrine or cited section 64 of the Restatement of Judgments. It has failed to do so even after we permitted further briefs on the res judicata issue at oral argument. The board made no findings as to sole proprietorship or partnership. If the majority are going to plead and prove defenses for Allstate and make findings for the board, the majority should at least give Mrs. Busick the opportunity to show that those defenses are factually inappropriate.
Moreover, if we were to decide the partnership issue on the record before us, I believe that we have to conclude that Mrs. Busick should prevail. There is no finding by the board or by the superior court that Albright Express Company was a sole proprietorship. Mrs. Albright testified that she did not know whether the operation should be called a partnership. The Allstate policy was issued to “A. Chase Albright and Wilhelmina Albright and/or Albright Express.” It is clear that the business was operated by both of the Albrights. The majority state that “Mr. Albright operated the business and Mrs. Albright assisted” (p. 970, fn. 2), but the record nowhere shows that Mr. Albright owned the business as a sole proprietorship or that Mrs. Albright did not claim an ownership interest.3
Most important in this connection, however, is that, as shall be demonstrated later in this opinion, the injury arose out of and occurred in the course of the employment, and that in order to hold that the superior court judgment was not erroneous, this court should conclude that the action was proper under section 3601 on the basis of the working partner exception. In light of the fact that the injury arose out of and occurred in the course of employment, the majority’s determination that a merger occurred is in effect a determination that the superior court did not have subject matter jurisdiction and that the superior court judgment was erroneous. The majority should not presume that the superior court judgment was erroneous but unless error is shown should presume it was correct.
For the foregoing reasons, it is my view that the record before us does not establish that a merger has occurred and that it is improper to dispose of the case on that basis. I thus turn to the contentions of the parties which the majority have not found it necessary to reach.
*984The res judicata argument made by Allstate is that by awarding damages the superior court impliedly determined that the injury did not arise out of and occur in the course of employment. However, if this court is to imply findings, it should imply findings, if possible, which would make the judgment correct, not erroneous, in the light of the evidence before us, and this can be done in view of the clear evidence of employment relation only by implying findings that the co-employee exception in section 3601 of the Labor Code is applicable. Accordingly, this court should not imply the finding requested by Allstate.
The remaining question is whether the injury arose out of and in the course of employment by Albright Express Company.
The board found that the injury was not sustained in the course of employment “because it occurred long after the employment relationship was terminated.” The board stated that Mrs. Busick resigned on August 9. Conceding that obtaining compensation for one’s services is generally part of the employment relationship, the board implied that it might deem the employment relationship to have existed until August 16, the date on which Albright employees would usually be paid for services performed during the week ending August 9. The board reasoned that Mrs. Busick became a creditor, rather than an employee, after August 16.
The facts found by the board are a slim foundation for such conclusions. Although Mrs. Busick offered to resign on August 9, she was told to take her vacation (which she originally had intended to take the month before) to consider the matter. She acceded to this request, taking her vacation pay with her. She decided to try to start her own business during this vacation, but stated that she might well have returned to work had the new venture not panned out. Certainly it was not clear to her employer on August 9 that she had quit; he assumed she might be on vacation. Nor did the board find that vacationing employees usually interrupted their vacations in order to pick up their checks on the following Friday. The purpose of taking an extra vacation check, one would assume, is to tide one over until he does get back to town and/or the workplace. In any event, while Mrs. Busick was no doubt entitled to appear on the 16th and demand her paycheck, there was no understanding that she was to be paid on that date.
Whether she effectively quit her job on August 9 or should have been paid on August 16, however, is immaterial in the instant case. Obtaining compensation for one’s services, even after those services have terminated, is a necessary and integral part of the employment relationship. (Pacific Indem. Co. v. Ind. Acc. Com., 26 Cal.2d 509 [159 P.2d 625]; Argonaut *985Ins. Co. v. Industrial Acc. Com., 221 Cal.App.2d 140 [34 Cal.Rptr. 206].) The delay of a week in payment does not destroy that relationship. Mrs. Busick, instructed by her employer that checks could be picked up only by appearing personally at the business premises, was clearly within the course of her employment at the time of the shooting.4 The contrary determination of the board should be rejected.
The board also found that the injury did not arise out of the employment “because it was a wilful act which was not traceable to an incident of the employment but was triggered by the tensions of trade warfare between business competitors.”
An injury caused by a wilful (intentional) act arising out of and in the course of employment is, of course, compensable. (See, e.g., California Comp. & Fire Co. v. Workmen’s Comp. App. Bd., 68 Cal.2d 157 [65 Cal.Rptr. 155, 436 P.2d 67]; State Comp. Ins. Fund v. Ind. Acc. Com., 38 Cal.2d 659 [242 P.2d 311]; Western Greyhound Lines v. Industrial Acc. Com., 225 Cal.App.2d 517 [37 Cal.Rptr. 580].) The fact that the tortfeasor is the employer in no way bars compensation. (Azevedo v. Industrial Acc. Com., 243 Cal.App.2d 370 [52 Cal.Rptr. 283]; Carter v. Superior Court, 142 Cal.App.2d 350 [298 P.2d 598].) The sole question here, therefore, is whether the shooting “arose out of” the employment relationship.
In Madin v. Industrial Acc. Com., 46 Cal.2d 90, 94-95 [292 P.2d 892], we construed the meaning of the phrase “arising out of” the employment. There the employees, employed as 24-hour-a-day caretakers and managers, were injured when a bulldozer accidentally hit their house. The bulldozer was not under the control of the employer, nor was it used on the employer’s property. Because the risk of injury to the employees was increased by having to remain in proximity to the uncontrolled bulldozer as a condition of employment, we held that the injury arose out of the employment. In doing so we set forth the following rule of construction: “Where the injury occurs on the employer’s premises, while the employee is in the course of the employment, the injury arises out of the employment unless the connection is so remote from the employment that it is not an incident of it.” (Italics added.)
*986In California Comp. & Fire Co. v. Workmen’s Comp. App. Bd., supra, 68 Cal.2d 157, 160-161, we followed the Madin rule and allowed recovery where a saleswoman who entered private homes as a condition of employment, was killed by her ex-husband, who had rented an apartment specifically for the purpose of luring her there in the course of her employment and killing her. (See also Wiseman v. Industrial Acc. Com., 46 Cal.2d 570 [297 P.2d 649]; State Comp. Ins. Fund v. Indus. Acc. Com., 194 Cal. 28 [227 P. 168]; Western Greyhound Lines v. Industrial Acc. Com., supra, 225 Cal.App. 2d 517.)
The instant case fits squarely within the Madin rule. Mrs. Busick was injured on the employer’s premises while in the course of her employment. The causal connection between the assault and her employment was not remote. Albright shot her because she had left to form, a competing business and had taken important accounts with, her when, she left. The risk of such injury was manifestly a direct result of her employment. As stated in Carr v. Wm. C. Crowell Co., 28 Cal.2d 652, 656 [171 P.2d 5], “ ‘In bringing men together, work . . . causes, frictions between them [and] creates occasions for . . . emotional flare-up. . . . These expressions of human nature are incidents inseparable from working together. They involve risks of injury and these risks are inherent in the working environment.’ ” If anything, the connection here is far more apparent than in the Madin or California Comp, cases.
In Azevedo v. Industrial Acc. Com., supra, 243 Cal.App.2d 370, 377, a test more stringent than that in Madin is enunciated, relying on Globe Indemnity Co. v. Industrial Acc. Com., 2 Cal.2d 8, 12 [37 P.2d 1039], to the effect that compensation will be denied where the injury is “the result of personal grievances unconnected in any way with the employment."
The Globe Indemnity test has been severely undermined, if not impliedly overruled, by subsequent cases. (See State Comp. Ins. Fund v. Ind. Acc. Com., supra, 38 Cal.2d 659, 671, disapproving Globe Indemnity in part.) In California Comp. & Fire Co. v. Workmen’s Comp. App. Bd., supra, 68 Cal.2d 157, the ex-husband’s murder of his ex-wife was the result of a personal grievance unconnected with the employment. The injury, on the other hand, was held, to be connected with the employment relationship, and therefore compensable. In Western Greyhound Lines v. Industrial Acc. Com., supra, 225 Cal.App.2d 517, cited with approval in California Comp. & Fire Co., a female bus driver was assaulted during a paid layover when she refused to converse with a restaurant patron. Although the grievance was clearly unrelated to her employment, the injury was held to be related, since the driver’s employment increased the *987risk of this type of incident. Globe Indemnity should be disapproved insofar as it states that the grievance must be work related.
Even were the Globe Indemnity test given full application, however, Mrs. Busick’s claim would not be barred. Her employer’s grievance—starting a competing business, stealing accounts—was so obviously connected to the employment relationship that the matter bears no further discussion. “Even if, arguendo, the issue [were] debatable, we are bound by the fundamental principle that to effectuate the purposes of the compensation statute, all reasonable doubts as to whether an injury is compensable are to be resolved in favor of the employee.” (California Comp. & Fire Co. v. Workmen’s Comp. App. Bd., supra, 68 Cal.2d 157, 161.)
I am satisfied that for purposes of the Workmen’s Compensation Law the injury was one “arising out of and in the course of the employment.”
I would annul the order of the Workmen’s Compensation Appeals Board in L.A. No. 29862. I agree with the majority that Allstate did not timely seek reconsideration and would affirm the order denying reconsideration in L.A. No. 29863.
Tobriner, J., and Mosk, J., concurred.
The application of petitioner Busick for a rehearing was denied November 1, 1972. Peters, J., Tobriner, J., and Mosk, J., were of the opinion that the application should be granted.
In the proceedings before the administrative agency a different partnership question was litigated. Petitioner claimed that J.R.L. Trucking Company was a partnership and that as a working member of the partnership receiving wages irrespective of profits she was entitled to workmen’s compensation benefits from J.R.L.’s compensation insurer. After receiving substantial evidence as to whether J.R.L. was a partnership or a sole proprietorship owned by petitioner, it was concluded that J.R.L. was not a partnership, and the issue is not now before us.
It is true that the partnership question could have been litigated in the superior court. However, the defendant did not raise the question of exclusive jurisdiction in the board, and thus there was no reason to raise the subsidiary question of partnership. The record of the superior court reflects no evidence on the partnership issue.
The majority also point out that it is I who have raised the partnership question and that petitioner has not raised the issue. Since the majority is practicing law by pleading the merger doctrine which has never been urged by respondent, T feel it is appropriate to point out that the doctrine might not be appli v YY: '* *ve'v. given her day in court on the issue.
The board’s reliance on Robbins v. Yellow Cab Co., 85 Cal.App.2d 811 [193 P.2d 956], is misplaced. In that case husband and wife both worked for the same company. Company had a policy of allowing all wives, not only those who were employees, to pick up their husbands’ paychecks. Wife was injured when she appeared during her off hours, asked for husband’s paycheck, and fell while accompanying the payor to another office to get the check. Recovery was properly denied because she was injured in her role as wife, rather than her role as employee. In the instant case petitioner went to the Albrights’ solely for the purpose of picking up her check.