Globe Indemnity Co. v. Industrial Accident Commission

WASTE, C. J. The respondent Marmurowicz was employed as a waiter in the dining room of the Barker Hotel in the city of Los Angeles on August 27, 1933. At this same time a Miss Marshall was employed in the kitchen of said hotel. The latter was stationed at the salad and dessert counter and, among other things, was required to prepare and deliver to the respective waiters the salads and desserts ordered by them for patrons. On the day above mentioned Marmurowicz, in the course and scope of his employment, had placed an order for ice cream with Miss Marshall. Apparently the order was not immediately attended to whereupon, according to his testimony, Marmurowicz on at least two subsequent occasions repeated the order. He then asked or demanded why the order of ice cream was not filled and an argument ensued as to whether he had placed such an order. In the course of the argument Miss Marshall told Marmurowicz to “shut up” and then referred to him as a “dirty Polack”. With this remark Marmurowicz walked around and in back of the counter and in the general direction of Miss Marshall, saying, “What was that you called me?” Other expressions passed between the parties. As to these the witnesses were either uncertain or in conflict. At the time Marmurowicz went behind the counter he had nothing in his hands. The evidence is contradictory as to whether he touched Miss Marshall. She testified that he seized her two arms and that in self-defense she picked up a long-bladed knife with which, in the resulting mélée, Marmurowicz was stabbed in the chest, the blade [10]penetrating approximately six inches. Marmurowicz, on the other hand, denies that he touched Miss Marshall, and testified that as he entered the narrow space behind the counter she again told him to “shut up” and that he was then stabbed by a. knife held by her. He was uncertain whether the stabbing was deliberate or accidental. The lady in charge of the kitchen testified that she did not see Marmurowicz strike at or in any way tussle with Miss Marshall prior to the stabbing; that he was not of a quarrelsome nature and was well liked; and that Miss Marshall had previously engaged in arguments with other employees. Marmurowicz accounted for his presence behind the counter by testifying that after Miss Marshall called him a “dirty Polaek” he sought to personally procure the desserts he had ordered. This latter testimony was contradicted by Miss Marshall, who testified that he approached her with “fire” in his eyes and that she thereupon seized the knife as a means of protection. She also testified that it was “against the rules and regulations of the hotel kitchen” for the waiters to go behind the counter and serve themselves. In this latter respect she was contradicted by the lady in charge of the kitchen, who testified that it was “common practice” for the waiters to go behind the salad and dessert counter and personally fill their orders. The foregoing briefly narrates the circumstances surrounding the stabbing. The testimony of the principals is highly contradictory in other particulars which we shall not here attempt to designate.