Hartford Accident & Indemnity Co. v. Cardillo

• Decision Date: 11 March 1940
• Docket Number: No. 7490.,7490.
• Citation: 72 App. DC 52,112 F.2d 11
• Parties: HARTFORD ACCIDENT & INDEMNITY CO. v. CARDILLO et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

72 App. DC 52, 112 F.2d 11 (1940)

HARTFORD ACCIDENT & INDEMNITY CO. v.CARDILLO et al.

No. 7490.

United States Court of Appeals for the District of Columbia.

Decided March 11, 1940.

Writ of Certiorari Denied June 3, 1940.

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

David A. Pine, George Rogers, Z. Lewis Dalby, and Charles T. Branham, all of Washington, D.C., for appellees.

Before STEPHENS, VINSON, and RUTLEDGE, Associate Justices.

Writ of Certiorari Denied June 3, 1940.See60 S.Ct. 1100, 84 L.Ed. ___.

RUTLEDGE, Associate Justice.

The appeal is from an order of the District Court dismissing the complaint of the Hartford Accident and Indemnity Company, employer's insurance carrier, against Frank A. Cardillo, deputy commissioner of the United States Employees' Compensation Commission, and Ray Bridges, to enjoin enforcement of a compensation order¹ favoring Bridges.The findings of fact, insofar as they are pertinent to the appeal, are as follows:

On October 10, 1938, the claimant Bridges, "while employed as a helper in the employer's Sanitary Grocery Company, Inc. produce warehouse and engaged in loading vegetables on the employer's truck, sustained personal injury resulting in his disability when a co-worker assaulted him suffering a laceration of the right eyebrow and a fracture of the right maxilla; * * * that the work performed by the claimant was supervised by a checker, Roy Downey; that in directing the claimant in the performance of his duties Downey addressed the claimant as `Shorty'; that the claimant resented being called `Shorty' and when Downey continued to so address the claimant, the latter called Downey a vile name; that Downey thereupon struck the claimant a blow on the right side of the face with his fist, inflicting the injuries above described; that the claimant did not strike or attempt to strike his superior, Downey; that Downey was the aggressor in the assault * * *."From these facts the deputy commissioner concluded "that the injury had its origin in the employment and that it arose out of and in the course of the said employment."

It is not contended that the injury did not occur "in the course of the employment," since it took place at the very time that Bridges was loading the truck for the employer.But the arguments of the plaintiff are directed against the finding that it "arose out of" the employment.Plaintiff asserts that the assault by Downey upon Bridges was caused by a purely personal quarrel, which had no relation to their work and, therefore, that the injury is not compensable.This is predicated on the facts as found and on other evidence not mentioned in the findings.That was to the effect that for about two months Downey and Bridges, while at work, had engaged in friendly banter concerning the respective merits of their watches, which was renewed on the morning of the injury.It is claimed that this led to the altercation and made it an entirely personal quarrel, unrelated to the work.

The statute creates a presumption "in the absence of substantial evidence to the contrary — (a) That the claim comes within the provisions of this chapter."²That the injury occurs in the course of the employment strengthens the presumption that it arises out of it.Moreover, "where there is doubt, it should be resolved in favor of the injured employee or his dependent family."³But it is unnecessary to rely on general presumptions as to the correctness of the findings.

We have held that where an employee's work exposes him "to a risk or hazard to which the general public is not exposed, and an injury results therefrom, the injury arises out of and in the course of the employment."⁴On this basis we allowed compensation where an employee suffered sunstroke on a hot day while doing heavy physical labor on the street.⁵The hazard of his work was clearly greater than that of other users of the street.Formerly such special risk was thought essential.⁶But in New Amsterdam Casualty Co. v. Hoage, 1932, 61 App.D.C. 306, 62 F.2d 468, 469, we dispensed with this requirement, sustaining an award where a solicitor for a newspaper was injured fatally merely by falling suddenly while crossing the street.There was no peculiar hazard, the cause of the fall being unexplained.Referring to the earlier rule requiring special risk, we said: "This doctrine, however, has since been abandoned.It is now held by the greater weight of authorities that, if an employee in the course of his employment has to pass along the public streets and thereby sustains an accident by reason of the risks incident to the streets, the accident `arises out of' as well as `in the course of' his employment."⁷In other words, work increases the employee's exposure to risks of the street whenever it requires his presence upon it, whether they are common to him and other users or peculiar to him alone.The street merely replaces the factory as the working environment.It is not the peculiar nature of the environment or of the risk, provided it is accidental, but the fact that the work brings the worker within the orbit of whatever dangers the environment affords that is important.It follows also that it is not necessary for the injury or the risk to be "natural,""normal," or predictable.When it is so, this fact, like "special danger," makes causal connection between work and injury more plain.But the very essence of compensation is that the injury be accidental, and that means unexpected.

In Hartford Accident & Indemnity Co. v. Hoage, 1936, 66 App.D.C. 160, 85 F. 2d 417, 418, these principles were extended to an unexplained attack by a stranger, taking place on the employer's premises.The claimant was a chef, at work in the kitchen when attacked with a knife by a man he had never seen previously and apparently did not see again after the assault.The opinion states: "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.* * * 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."⁸

The opinion relied specifically upon the New Amsterdam decision in ruling that no more is necessary than that the work subject the employee to a peril which comes from the fact that he is required to be in the place where it strikes when it does so.It is immaterial whether the place is the employer's premises or a street; whether the risk arises from physical features or human agencies connected with the place; whether it is a common occurrence or an extraordinary happening; one which threatens only employees at work or others also.That this is true appears also from the opinion's reliance upon cases from other jurisdictions.Among these are Entrocut v. Paramount, etc., Co., 1928, 222 App.Div. 844, 226 N.Y.S. 808, where a waiter in a restaurant was shot when a revolver being cleaned by a policeman waiting to be served went off accidentally or negligently, and Greenberg v. Voit, 1929, 250 N.Y. 543, 166 N.E. 318, where a janitor cleaning his employer's front steps was killed by gangsters who passed through the adjacent street shooting indiscriminately from an automobile.The last case adds the feature that volitional, criminal action may be a peril of the working environment.In Maryland Casualty Co. v. Cardillo, 1938, 69 App.D.C. 199, 99 F.2d 423, we followed out the logic of the New Amsterdam and Hartford decisions, in sustaining an award where an assistant cook in a restaurant was killed by a fellow worker (said to be of lower rank) in an altercation which arose because the latter resented the former's criticism of his manner of peeling potatoes.Referring to the Hartford case, we said: "A fortiori if, as here, a quarrel over work leads one employee to strike another, the resulting injury arises out of the employment."⁹

No common denominator for the cases can be found in the nature of the specific act or event which is the immediate cause of the injury.Whether it is "natural" or abnormal, occurs on or off the employer's premises, consists in the action of physical or human agencies and, if the latter, is reflex or volitional, lawful or unlawful, by one deranged or responsible, the common element is to be found in a broader and more fundamental principle.It is stated by Cardozo, J., in Leonbruno v. Champlain Silk Mills, 1920, 229 N.Y. 470, 128 N.E. 711, 13 A.L.R. 522, as follows: "The claimant was injured, not merely while he was in a factory, but because he was in a factory, in touch with associations and conditions inseparable from factory life."Not the particular or peculiar character of the associations and conditions, but that the work creates and surrounds the employee with them is the basic thing.

Nor is it necessary, as these cases show, that the particular act or event which is the immediate cause of the injury be itself part of any work done for the employer by the claimant or others.Otherwise no award could be given for many injuries now compensated, such as those caused by stray bullets, unexplained falls, objects falling from outside the employer's premises and work,¹⁰ many street risks, horseplay, most assaults and many other causes."The risks of injury incurred in the crowded contacts of the factory through the acts of fellow workmen are not measured by the tendency of such acts to serve the master's business."¹¹Not that the act is in the line of duty, or forwards the work, or creates special risk, but that the work brings the employee within...