Corken v. Corken Steel Products, Inc.

• Decision Date: 09 October 1964
• Citation: 385 S.W.2d 949
• Parties: Joy Lee CORKEN, Indiv. and Irvin Kelly Corken, an infant, etc., Appellants, v. CORKEN STEEL PRODUCTS, INC., and the Workmen's Compensation Board, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 949

385 S.W.2d 949

Joy Lee CORKEN, Indiv. and Irvin Kelly Corken, an infant, etc., Appellants, v. CORKEN STEEL PRODUCTS, INC., and the Workmen's Compensation

Board, Appellees.

Court of Appeals of Kentucky.

Oct. 9, 1964.

Rehearing Denied Feb. 12, 1965.

John J. O'Hara, O'Hara & Ruberg, Covington, for plaintiffs in error.

William E. Wehrman, Covington, for defendants in error.

PALMORE, Judge.

On the morning of November 13, 1961, Irvin Corken, Jr., a salesman employed by Corken Steel Products, Inc., was calling on customers in Campbell County. Between calls he stopped at a restaurant in Newport and had lunch. As he was in the act of getting back into his automobile, which was parked on the street near the restaurant, he was deliberately shot and killed by a stranger acting without provocation or discernible reason of any kind, evidently a madman. A workmen's compensation claim asserted by his dependent widow and child was denied in a 3-2 decision by the board. This appeal is from a judgment of the Campbell Circuit Court affirming that action.

The basis for the board's denial of the claim was that Corken's death did not result from a hazard peculiar to the streets and therefore did not arise 'out of' his employment. The authority for this position is Lexington Ry. System v. True, 276 Ky. 446, 124 S.W.2d 467 (1939), in which it was held that the death of a street car motorman from a stray bullet fired by a boy shooting at birds did not arise out of the employment.

The theory that an injury must be incidental, or the hazard peculiar, to the nature of the employment is fundamentally indistinguishable from the principle of proximate cause, or foreseeability. The True opinion, for example, equates causation with 'likelihood.' 'But,' as Larson asks, 'what relevance has foreseeability if you are not interested in the culpability of the actor's conduct? There is nothing in the theory of compensation liability which cares whether the employer foresaw particular types of harm or not. The only criterion is connection in fact with the employment, whether it is foreseeable in advance, or apparent only in retrospect. This criterion cannot in any logical sense be made to depend on foreseeability.' Larson, Workmen's Compensation, Sec. 6.50, pp. 46-47.

We are persuaded that the True case is not sound. It is therefore overruled. ¹ We accept the view that causal connection is sufficient if the exposure results from the employment. See Larson, Workmen's Compensation, Sec. 10.12; Industrial Indemnity Co. v. Industrial Accident Comm., 95 Cal.App. 804, 214 P.2d 41 (1950); Gargiulo v. Gargiulo, 13 N.J. 8, 97 A.2d 593 (1953); In re Baran's Case, 336 Mass. 342, 145 N.E.2d 726 (1957).

Corken's employment was the reason for his presence at what turned out to be a place of danger, and except for his presence there he would not have been killed. Hence it is our opinion that his death arose out of the employment.

The judgment is reversed with directions that the cause be remanded to the Workmen's Compensation Board for entry of an order sustaining the claim and awarding compensation accordingly.

MONTGOMERY, Judge (dissenting).

I respectfully dissent because I feel that the doctrine of Lexington Railway System v. True, 276 Ky. 446, 124 S.W.2d 467, is sound and for the further reason that it is unwise to change it. It has been followed for many years in many cases; thus, the rule is well established. The majority opinion recognizes this in pointing out that many cases would have to be overruled.

The basis of the rule is set forth in Maddox v. Heaven Hill Distilleries Inc., Ky., 329 S.W.2d 189, as follows:

'When we test the facts of the instant case by our definition of 'arising out of' we find that this injury did not result from a risk connected with Maddox' employment because all persons using public highways are exposed to the same hazard. It did not result from a danger peculiar to the distilling industry. * * *.'

Some of the cases in which this rule has been thoroughly and exhaustively considered are: Harlan Collieries Company v. Shell, Ky., 239 S.W.2d 923; Harlen-Wallins Coal Corporation v. Stewart, Ky., 275 S.W.2d 912; Wilke v. University of Louisville, Ky., 327 S.W.2d 739; City of Prestonsubrg v. Gray, Ky., 341 S.W.2d 257.

In the latter case the Court said:

'The phrase 'arising out of' refers to the cause of the accident; that is, there must be a causal relationship between the accident and the employment. Harlan Colleries [Collie...