Dean v. Stockham Pipe & Fittings Co.

• Decision Date: 06 June 1929
• Docket Number: 6 Div. 354.
• Citation: 220 Ala. 25,123 So. 225
• Court: Alabama Supreme Court
• Parties: DEAN v. STOCKHAM PIPE & FITTINGS CO.

123 So. 225

220 Ala. 25

DEAN v. STOCKHAM PIPE & FITTINGS CO.

6 Div. 354.

Supreme Court of Alabama

June 6, 1929

Rehearing Denied June 27, 1929.

Certiorari to Circuit Court, Jefferson County; Richard V. Evans, Judge.

Proceeding under the Workmen's Compensation Act (Code 1923, § 7534 et seq.) by Velma Dean against the Stockham Pipe & Fittings Company, to recover compensation on account of the death of an employee. Judgment denying compensation, and plaintiff brings certiorari. Reversed and remanded, with directions.

London Yancey & Brower, and Whit Windham, all of Birmingham, for appellant.

Nesbit & Sadler and Grady W. Patterson, all of Birmingham, for appellee.

BOULDIN J.

This is a workmen's compensation case. The trial judge, with commendable care, made a full statement of the facts, his conclusions thereon, and his views of the law applicable thereto. The following excerpts bring to view the questions we are to consider:

"The deceased, J. J. Dean, was a night watchman at the plant of defendant. He was killed by an unknown person on the night of October 5, 1928, at about 8:30 o'clock while he was on duty and making his rounds of the plant. ***

"In this state of the evidence the question presented is: Is the accident compensable as one 'arising out of and in the course of his employment,' or it is an injury (as specified in section 36(j) of the Workmen's Compensation Act) 'caused by the act of a third person or fellow employee, intended to injure the employee because of reasons personal to him, and not directed against him as an employee, or because of his employment'? ***

"Was the murderer's motive theft or injury to the employer's property, or merely to rob the watchman? In other words, was the injury to the watchman to him as an employee and because of his employment, or was it personal to him, for the mere purpose of robbing him? ***

"The court is of opinion that the circumstances furnished the occasion for the robbery, and, but for the employment and the nightly rounds of the watchman, the opportunity would not have been presented, but that the purpose sought to be effected by the murderer was robbery-something personal to the deceased-and not an act directed against him because of his employment.

"At all events, in order to be compensable, the petitioner must reasonably sustain the burden of proof by showing that the accident arose out of and in the course of the employment, and deceased was injured as an employee and because of his employment, and this has not been done, but left entirely to conjecture, with the weight of the probabilities rather militating against petitioner's contention. The burden of proof is no different under the Workmen's Compensation Act. Ex parte Coleman, 211 Ala. 248, 100 So. 114."

Petitioner complains that the court below misplaced the burden of proof; that subdivision (j), § 7596, of the Code, is in the nature of an exception, and the burden is on respondent to bring itself within the terms of the exception. Subdivision (j) is rather by way of further definition of "accidents arising out of and in the course of employment," and the burden to prove such case is on the plaintiff. Ex parte Coleman, 211 Ala. 248, 100 So. 114, Sloss-Sheffield Steel & Iron Co. v. Harris, 218 Ala. 130, 117 So. 755.

A bill of exceptions brings up the entire evidence. As well settled, this court can look to it for two purposes: (1) Is there any evidence to support the conclusions of fact found by the trial court? If so, this court will not consider the weight of the evidence. (2) Is the finding of facts omissive, showing a mistake of law as to the controlling questions in the case?

In this case the conclusion that the motive of the murder was robbery of the deceased employee is well supported by the evidence. The evidence is circumstantial. Most of it is set out in substance and effect in the findings of fact.

The question of moment in the case is whether, taking the findings as a whole, an error of law appears? As we read these findings, the trial court took the view that, if the sole motive of the murder was robbery of the watchman of his personal belongings, this was an end of the inquiry; that intent to injure the employer or his property, or other motive directed to the victim as an employee, must appear.

The evidence clearly suggests the following inquiries: Did the would-be robber see the watchman draw his pay that same evening, or see him waving it during the friendly banter between him and Mr. Walters, or otherwise know or believe he had money on his person? Did the robber also know Mr. Dean was a night watchman, know his fixed round, know that he could secrete himself in the shadows and effect his purpose with little hazard to himself, and did this incite the murder?

In brief, did the fact and nature of the employment, not only furnish the opportunity, but suggest the opportunity? Did the employment mark the deceased as the special victim of the robbery? Was he murdered because he was Mr. Dean, or because he was a night watchman, an easy mark, because of the conditions of his employment? If so, was there a causal connection between the employment and the murder, within the meaning of our Workmen's Compensation Law? Was this a hazard of industry for which the industry should bear its part of the loss to dependents? This inquiry is not without difficulty. The authorities do not appear to be in harmony.

This court has had occasion to consider subdivision (j), supra, in the following cases: Garrett v. Gadsden Cooperage Co., 209 Ala. 223, 96 So. 188; Ex parte Coleman, 211 Ala. 248, 100 So. 114; Ex parte Terry, 211 Ala. 418, 100 So. 768; Martin v. Sloss-Sheffield S. & I. Co., 216 Ala. 500, 113 So. 578; Sloss-Sheffield Stell & Iron Co. v. Harris, 218 Ala. 130, 117 So. 755. Neither of these was a night watchman case. These decisions, however, state certain controlling principles. Among them these: In view of its broad legislative purpose a willful assault upon the employee may be an accident within the meaning of the Compensation Law.

Subdivision (j) is but the logical definition of "arising out of the employment" in that class of cases, as construed in states having no subdivision (j). We have written into our law the words of the Madden Case, 222 Mass. 487, 111 N.E. 379, L. R. A. 1916D, 1000, to wit: "The rational mind must be able to trace the resultant injury to a proximate cause set in motion by the employment, and not by some other agency." Also the following (Garrett v. Gadsden Cooperage Co., 209 Ala. 225, 96 So. 190): "In Hinchuk v. Swift & Co., 149 Minn. 1, 182 N.W. 622, it is said that the principle applicable to cases like that at bar is that the injury is included within the statute if there is some causal relation between the employment and the injury; the court adding: 'Not that the injury must be one which ought to have been foreseen, but it must be one which, after the event, may be seen to have had its origin in the nature of the employment."'

Among cases bearing some analogy to this is Common School Dist. v. District Court, 140 Minn. 470, 168 N.W. 555, 15 A. L. R. 579. This case involved an assault to ravish, perpetrated upon a young school-teacher soon after she left the school grounds for her boarding house, and the while passing through a lonely wood. Held no compensation. The opinion reviews and cites many cases. The decision expressly holds the court need not inquire what their view would be but for subdivision (j) peculiar to that and a few other states, and so plants the decision on that subdivision. As above noted this court has departed from the view that subdivision (j) changes the meaning of the general clause "arising out of the employment."

Moreover, from the facts of that case, as stated by the court, it does not appear the ravisher knew the young woman of necessity went alone through an isolated wood, and that this exposure incident to her employment furnished and suggested to the ravisher his opportunity, and so had a causal connection with the assault. That case recognizes the rule that, "when the employee is exposed to an assault by the character of his work, *** so that it is a hazard or special risk of the work, the cases say that it arises out of the employment."

Taking subdivision (j) on its face, a willful assault, intended to injure the employee, is still compensable in...