Hartford Accident & Indemnity Co. v. Hoage

• Decision Date: 29 June 1936
• Docket Number: No. 6628.,6628.
• Citation: 85 F.2d 417,66 App. DC 160
• Parties: HARTFORD ACCIDENT & INDEMNITY CO. v. HOAGE, Deputy Com'r, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

66 App. DC 160, 85 F.2d 417 (1936)

HARTFORD ACCIDENT & INDEMNITY CO. v. HOAGE, Deputy Com'r, et al.

No. 6628.

United States Court of Appeals for the District of Columbia.

Decided June 29, 1936.

Cornelius H. Doherty, of Washington, D. C., for appellant.

Leslie C. Garnett, Allen J. Krouse, and Wm. H. Labofish, all of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, and VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

MARTIN, Chief Justice.

This case arises under the provisions of the District of Columbia Workmen's Compensation Law¹ and involves an award of compensation for temporary total disability and permanent partial disability, sustained by Gus Malouhos, employee, on July 4, 1935. The injury occurred within the District of Columbia and the appellant, the Hartford Accident & Indemnity Company, as insurance carrier, and appellee Gus Malouhos were subject to the provisions of the act. The salient facts in the case, as contained in a stipulation of the respective parties, are as follows: "On the 4th day of July 1935 the claimant, Gus Malouhos, was working as a chef for George's Lunch and was in the kitchen cooking spare ribs when a man he had never seen before came into the kitchen and struck a colored man named Robert Gray and then stuck a knife into the root of claimant's nose, and, leaving the knife there, ran away, and claimant pulled the blade out, and this injury resulted in the loss of claimant's eye; that the claimant did not talk to his assailant before or after the attack, and the man then ran to the second floor and jumped thirty feet to the ground; that the assailant did not work around, nor have anything to do with, the restaurant, and claimant did not know who he was but would know him again if he saw him; that there is one dining room in the back, and then the kitchen, and another dining room in back of the kitchen, and people from the lunchroom in front go back and go upstairs to the bathroom and go through the kitchen, but the employment of claimant requires him to stay in the kitchen all the time."

The claimant duly filed a claim for compensation with the Deputy Commissioner of Compensation in the District of Columbia, who, after hearing the testimony, found the facts to be as above set out, and that the personal injury which was sustained by the claimant occurred in the course of and arose out of his employment, resulting in a wage earning disability as follows: "* * * the claimant suffered temporary total disability from July 5, 1935, to and including August 5, 1935, a period of 4 4/7 weeks; that as a further result of the said injury the claimant suffered permanent partial disability equivalent to 100 per cent. of the loss of vision of the right eye, for which he is entitled to compensation for 140 weeks; that the total amount of compensation to which the claimant is entitled by reason of the said injury amounts to 144 4/7 weeks; that the weekly wage of the claimant at the time of the injury was $34.50, working six days a week; that the average weekly wage is $33.17; that the claimant is entitled to compensation at the rate of $22.12 per week; that compensation for 144 4/7 weeks at the rate of $22.12 per week amounts to $3197.92; that compensation has accrued from July 5, 1935, to and including September 25, 1935, a period of 12 weeks, at the rate of $22.12 per week, amounting to $265.44, which amount of compensation is due and payable forthwith; that the claimant is entitled to medical treatment such as the nature of the injury and the process of recovery may require."

The appellant, the insurance carrier, thereupon filed a bill in equity in the Supreme Court of the District of Columbia praying for a perpetual injunction against the enforcement of this award upon the ground that it was not sustained by the evidence. The lower court upon consideration held against appellant's claim and dismissed the bill. Whereupon, the present appeal was taken.

Under section 2 of the District of Columbia Workmen's Compensation Act, 33 U.S.C.A. § 902, it is provided as follows: "The term `injury' means accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment."

The only substantial question presented by the record in this case is whether the injury suffered by the employee, as aforesaid, arose out of his employment. It is clear that it occurred in the course of his employment. The appellant, however, contends that the injury did not arise out of the employment, and consequently that it was not compensable under the terms of the statute.

We are of the opinion upon the undisputed facts in this case that the claimant's injury arose out of his employment, because the terms and conditions of his employment placed the claimant in the position wherein he was assaulted by the assailant and sustained the injuries from which he suffered. The place where plaintiff was assigned to work was open to all customers of the employer's restaurant or those who sought to go from the restaurant to the bathroom and was practically open to entrance by the public. The place was within the industrial premises of the employer. It is true that claimant's injury was inflicted by a drunken or crazed stranger and was not such a danger as would ordinarily be apprehended by either the employer or the employee. Nevertheless, it was suffered by the claimant when at his place of duty, when upon the industrial premises of his employer, and while he was engaged at the work for which he was employed.

An analogous question is presented in cases wherein an employee is injured upon the public streets by hazards incident thereto while acting upon business of the employer. In New Amsterdam Casualty Co. v. Hoage, 61 App.D.C. 306, 62 F.(2d) 468, 469, we said: "In the early administration of compensation laws, the rule was often adopted that injuries occurring upon the public highways due to traffic hazards did not `arise out of' the workman's employment. This rule was founded upon the theory that such hazards are common to the community at large and are not incident to particular employments, and it was held that the compensation acts were not designed to...