Craig v. Electrolux Corp.
| Decision Date | 12 May 1973 |
| Docket Number | No. 46739,46739 |
| Citation | 510 P.2d 138,212 Kan. 75 |
| Parties | Pearl CRAIG, widow and dependent of Clement Edward Craig, Appellee, v. ELECTROLUX CORPORATION and Reliance Insurance Company, Appellants. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The two phrases, arising 'out of' and 'in the course of' the employment, as used in our workmen's compensation act (K.S.A.1972 Supp. 44-501), have separate and distinct meanings, they are conjunctive and each condition must exist before compensation is allowable, (following Siebert v. Hoch, 199 Kan. 299, 428 P.2d 825).
2. The phrase 'out of' the employment points to the cause or origin of the accident and requires some causal connection between the accidential injury and the employment. An injury arises 'out of' employment when there is apparent to the rational mind, upon consideration of all the circumstances a causal connection between the conditions under which the work is required to be performed and the resulting injury, (following Siebert v. Hoch, supra).
3. An injury arises 'out of' employment if it arises out of the nature, conditions, obligations and incidents of the employment, (following Siebert v. Hoch, supra).
4. The foregoing tests include an injury resulting from a hazard to which the workman would not have been equally exposed apart from the employment.
5. In determining whether a written instrument is a claim for compensation as required by K.S.A. 44-520a (now K.S.A.1972 Supp. 44-520a) the court will examine the writing itself and all the surrounding facts and circumstances, and after consideration thereof determine the intent of the claimant.
6. The record is examined and it is held: The trial court did not err in finding the death of the employee arose 'out of' his employment and did not err in finding the 'Dependent's Application for Hearing' to be a claim for compensation within the meaning of K.S.A. 44-520a.
Richmond M. Enochs, Wallace, Saunders, Austin, Allen, Brown & Enochs, Overland Park, argued the cause, and was on the brief for the appellants.
Charles L. Davis, Jr., Gray, Freidberg, Davis & Unrein, Topeka, argued the cause, and Kenneth E. Arnold, Kansas City, Mo., was with him on the brief for the appellee.
Respondents appeal from a workmen's compensation award in favor of an employee's widow. The principal question on appeal is whether the death of the employee arose 'out of' the employment.
Clement Edward Craig, the deceased employee, had been employed by Electrolux Corporation for about two years. He and another employee, Barney Jones, handled commercial accounts which required them to make calls in the evening. In addition to selling the company's product, one of their duties was to collect money from customers who had entered into installment contracts with the company.
On the evening of December 9, 1967, Craig told his wife, his daughter, and Barney Jones that he was going to Kansas City, Kansas, to try to make some sales. Prior to December 9, Craig had been attempting to sell his employer's product to Fred Earnhart, an apartment manager whose office was in the apartments located at 1629 Washington, Kansas City, Kansas. Craig parked his car in a tenant's stall and remained in the car for some time waiting for Earnhart. This was a Saturday and Earnhart's office was usually open until 1:00 or 1:30 p. m.
As Craig was waiting in the parking lot, two males approached his car. One of them pointed a gun at him, and shot and killed him. The two males immediately ran from the scene, but both were apprehended and charged with murder in the first degree. One of the males, Dennis Eugene Smith, pled guilty to the charge.
At Smith's preliminary hearing on the criminal charge, the court found there was probable cause to charge Smith with first degree homicide in the perpetration of another crime, robbery. This decision was based on the testimony of Smith's confidant, who said Smith admitted they had seen the victim earlier in the evening with a great deal of money, admitted the shooting, and admitted it happened as they were trying to rob the victim.
We approach this action recognizing several frequently stated rules applicable to workmen's compensation appeals. The purpose of the act is to burden industry with the economic loss to a workman, or his defendants, resulting from accidental injuries sustained by the workman, arising out of and in the course of his employment. (Thuillez v. Yellow Transit Freight Lines, 187 Kan. 618, 358 P.2d 676.) The provisions of the workmen's compensation act are to be liberally construed in favor of the workman and compensation awarded where it is reasonably possible to do so. (Odell v. Unified School District, 206 Kan. 752, 481 P.2d 974.) On appeal, this court's jurisdiction in compensation cases is limited to questions of law and if there is substantial competent evidence to support the findings of the lower court, the findings must stand. (Ratzlaff v. Friedeman Service Store, 195 Kan. 548, 407 P.2d 513.)
K.S.A. 44-501 (now K.S.A.1972 Supp. 44-501) provides for compensation for 'personal injury by accident arising out of and in the course of employment.' Respondents do not deny the accident resulting in employee's death arose 'in the course of' his employment. The issue is confined to whether the accident arose 'out of' the employment.
The Examiner denied compensation and stated:
On review by the Director, the Examiner's findings were sustained. The district court reversed the Examiner and Director and awarded compensation, stating:
'. . . (T)he parties made their respective arguments for appeal and the District Court of Wyandotte County, Kansas, adopts the findings of the Examiner and affirmed by the Workmen's Compensation Director with the exception that the Court finds that the deceased's accidental injuries arose out of his employment with the respondent.'
Respondents argue the district court erred as a matter of law in finding deceased's murder arose out of his employment when all evidence shows deceased was murdered by two individuals who were completely unrelated to deceased's employment. Respondents point out there was no testimony that the two individuals attempted to rob deceased. They further state deceased's employment with Electrolux in no way provoked or invited his murder. They conclude there is a known assailant, but this known assailant for no known reason or motive, shot and killed deceased in a manner completely unrelated to his employment; and there can be no question his death did not arise out of the employment.
Claimant argues Craig was obviously waiting for the return of a potential client when he was assaulted. One of his duties was to make collections on installment contracts with commercial clients such as hotels, motels, and apartments, which obviously are large accounts. On this same day, at least one of his assailants saw him with a large sum of money and planned to rob him. This fact was admitted by the assailant, and there was enough evidence on this specific issue for the judge at Smith's preliminary hearing to charge him with first degree homicide in the perpetration of another crime, robbery. The intent to rob was obviously formed only because Craig was observed with a large sum of money which in all likelihood was the result of his collections. His assailants took off as soon as Craig was shot, which could easily be attributed to panic, their youthful age, or the sighting of potential witnesses. In any event, claimant argues there is absolutely no evidence to show the assault was for personal reasons. It was due to the fact his assailants knew he had a large sum of money-money which Craig had collected for his employer. Claimant contends this condition of his work, collecting and holding large sums of money, was the definite cause of the assault on Craig.
Both parties cite and rely on Siebert v. Hoch, 199 Kan. 299, 428 P.2d 825, to sustain their position and we believe what was said in Siebert controls the disposition of this case. Siebert met death while employed as manager of a distribution dairy in Topeka, which business consisted of house-to-house delivery of milk and operation of a retail store. Siebert's wife was employed there as a bookkeeper, but on Wednesday preceding Siebert's death she separated from his and did not thereafter perform her usual duties. The separation of the Sieberts resulted from an argument between them and a beating deceased gave his wife. Jim Siebert, brother of deceased, also an employee of the dairy company in another town, had seen the beating and told Mrs. Siebert he was mad enough to kill his brother.
On the fatal night, Siebert closed the store about 10:30 p. m., went home, and later returned to the store to get ready for the morning deliveries. The following morning he was found dead lying on the couch in his office. Cause of death was a .22 caliber slug in his left temple. Siebert owned a .22 caliber pistol and his brother, Jim, knew where it was kept. Cash receipts were in the safe and Siebert's wallet containing $100.00 was not taken. There was no evidence of any forcible entry into the building.
The trial court granted and award and on appeal this...
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