Continental Life Ins. Co. Et Al.,v,gough.

• Decision Date: 11 January 1934
• Citation: Continental Life Ins. Co. Et Al.,v,gough., 161 Va. 755, 172 S.E. 264 (1934)
• Court: Virginia Supreme Court
• Parties: CONTINENTAL LIFE INS. CO. et al. v GOUGH.

172 S.E. 264

CONTINENTAL LIFE INS. CO. et al.vGOUGH.

Supreme Court of Appeals of Virginia.

Jan. 11, 1934.

GREGORY, EPES, and BROWNING, JJ., and CAMPBELL, C. J., dissenting in part.

Error to Industrial Commission.

Proceeding for compensation under the Workmen's Compensation Act by James S. Gough, employee, opposed by the Continental Life Insurance Company, employer, and the Ætna Life Insurance Company, insurer. To review an award of compensation by the Industrial Commission, the employer and insurer bring error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, BROWNING, and CHINN, JJ.

Parrish & Butcher and R, R. Parrish, all of Richmond, for appellant.

J. W. Eggleston, of Norfolk, for appellee.

HUDGINS, Justice.

This ease brings under review an award by the Industrial Commission.

At the hearing, only two witnesses testified, the claimant and his doctor. Chairman Nickels stated the facts found by him as follows:

"The Claimant, who was agent for the Employer, earning a weekly wage of $51.00, sustained an accident by being struck a blow with a hatchet on the head by a boy whose father was carrying insurance in the company which the claimant was then representing. The assailant was being given, as an accommodation, a ride in the rear seat of the car then being operated by the Claimant while in the course of his employment. There was shown no motive for the assailant's striking the claimant the blow on the head with the hatchet. As a result of the blow, he sustained a fracture of the skull.

"The record discloses that claimant was totally disabled from the date of the accident, on January 16, 1933, to the date of the hearing. The prognosis is that of continued disability for some time, dependent upon the progress in making a recovery."

Upon this finding, the hearing commissioner reached the conclusion that claimant was not entitled to compensation. Thereupon he applied for a rehearing, or review, and filed certain affidavits in support of his application. The rehearing was denied, but, on a review, the majority of the commission, with Chairman Nickels dissenting, decided that claimant was entitled to compensation, and made an award accordingly. From this award, the employer and insurance carrier obtained this writ of error.

The first question to be determined is whether an injury resulting from a willful and intentional assault by a third party on an employee is an "injury by accident" within the meaning of the Workmen's Compensation Law (Acts 1918, c. 400, as amended). This term was before this court for construction in the recent case of Big Jack Overall Co. v. Bray, 161 Va._, 171 S. E. 686, where it was said that it was difficult to formulate a definition of the term which would include all cases coming within the meaning of the act.

If the victim of such an assault were testifying before the grand jury or the trial court upon the criminal prosecution of his assailant, he would be surprised and somewhat indignant if, from his evidence, the court or jury reached the conclusion that the assault was the result of an accident, and yet from the same evidence before the Industrial Commission he expects it to find as a matter of fact that his injuries were the result of an accident.

This same question was before the English Court of Appeal in Nisbet v. Rayne, etc. [19101 2 K. B. 689, where the facts were that Nisbet, a cashier, while taking a large sum of money from the bank to the mine with which to pay the workmen, was robbed and murdered. His widow made application for compensation. Cozens-Hardy, M. R., held that "it was an accident from the point of viewof Nisbet, and that It makes no difference whether the pistol shot was deliberately fired at Nisbet or whether it was intended for somebody else and not for Nisbet." Farwell, L. J., said: "The intention of the murderer is immaterial; so far as any intention on the part of the victim is concerned, his death was accidental; * * *"

Kennedy, D. J., in his opinion said: "But whilst the description of death by murderous violence as an 'accident' cannot honestly be said to accord with the common understanding of the word, wherein is implied a negation of wilfulness and intention, I conceive it to be my duty rather to stretch the meaning of the word from the narrower to the wider sense of which it is inherently and etymologically capable, that is, 'any unforeseen and untoward event producing personal harm, ' than to exclude from the operation of this section a class of injury which it is quite unreasonable to suppose that the Legislature did not intend to include within it."

Whatever views we might have had on the question as an original proposition, it is now well settled by unanimity of decisions, both in England and in this country, that, although the injury is the result of the willful and intentional assault of either a fellow employee or a third person, this fact does not prevent the injury from being accidental within the meaning of the act. See Farmers' Mfg. Co. v. Warfel, 144 Va. 98, 131 S. E. 240, and cases there cited.

The same authorities hold that, if the assault was personal to the employee and was not directed against him as an employee, or because of his employment, then the injury is not compensable. In other words, simply because the employee sustains injury from an assault made upon him by a third party does not entitle him to compensation; he must go further and prove that the assault was directed against him as an employee, or l>ecause of his employment--that is, that it arose out of as well as in the course of his employment. This he failed to do; hence Chairman Nickels, upon the evidence then before him, was correct in his conclusion of law.

With the application for a rehearing, there were filed affidavits showing that the two assailants had been indicted, tried, and found guilty of maiming and attempted robbery of claimant, and that the judge of the trial court had under consideration the question whether he would commit the two young men to the department of public welfare or sentence them to the penitentiary.

Under the peculiar circumstances of this case, as hereinafter related, we think the commission erred in its refusal to grant claimant a rehearing. However, plaintiffs in error request that we treat the statements set out in the affidavits as a part of the record and dis pose of the case on the merits, without sending it back to the commission. So considering the record, we have the following facts:

Claimant's duties required him to travel by automobile through the lower section of Norfolk county for the purpose of writing industrial insurance and collecting premiums thereon. After making collection of a premium from one Doxey, at the hitter's home, one of Doxey's sons, Clifton, and a companion, Earl Proctor, requested claimant to give them a ride in his two-seated car to a certain point to which they evidently knew his duties took him. Both of these boys were insured in claimant's company and had been known to him personally for about a year. Before the boys got in the car, one of them, without the knowledge of claimant, had concealed r. hatchet on his person, and, just before reaching their destination, claimant was brutally assaulted by being struck on the head several times with the hatchet, first by one boy and then by the other; his skull was fractured on both sides, which necessitated a serious operation, and his continued total incapacity for work was admitted at the hearing. During the assault, the car left the road and ran into some signboards, making considerable noise. This attracted the attention of some people near a service station, who hastened to the rescue, whereupon the assailants ran into the nearby woods without completing the robbery.

The insurance carrier concedes that "the causative danger must be peculiar to the work and not common to the neighborhood, " McNicol Case, 215 Mass. 497, 102 N. E. 607, L. R. A. 1916A, 306, and that if after the injury it can be seen that the injury was incurred because of the employment it need not be such as to have been anticipated.

Injury caused by assault for the purpose of robbery is a hazard or risk to which collectors, paymasters, watchmen, etc., are exposed because of the nature of their duties. See 29 A. L. R. 120, 36 A. L. R. 474, and note. The insurance carrier contends that the injury in this case is not compensable be cause the assault was made by assailants to whom he had extended the courtesy of a gratuitous ride, and that the assault was traceable to this cause, and not to the nature of the employment.

The affidavits clearly show that the assailants knew claimant was a collector of money for his employer and that his duties required him to travel by automobile, at regular intervals, through that section. On the day in question, they planned to rob him, and with that purpose in view obtained a hatchet, which was subsequently used in the assault.

This attack, with its resulting injury, was incidental to the accomplishment of the main purpose of assailants, to wit, the getting possession of the employer's property, or prop-erty used in the employer's business. Contributory negligence of claimant is no bar to an award of compensation. The fact that claimant permitted assailants to get into the car with him made it easier for them to perfect their previously conceived evil design, but the injury arose out of a risk incident to the employment. In other words, the fact that claimant gave assailants a ride was not the cause of, but merely incidental to, the assault upon him.

This is not a case where a traveling salesman or collector allowed a "hitch-hiker, " or other person, to get in an automobile used as a means of...