Devlin v. Ennis

• Decision Date: 13 January 1956
• Docket Number: No. 8270,8270
• Citation: 292 P.2d 469,77 Idaho 342
• Parties: Gladys E. DEVLIN, for and on behalf of Karin Jean Devlin, a minor, Claimant-Appellant, v. Paul B. ENNIS, Administrator of the Estate of William G. Searles, Employer, and State Insurance Fund, Surety, Defendants-Respondents. Mrs. Ray Bozek, Intervenor-Appellant.
• Court: Idaho Supreme Court

Page 469

292 P.2d 469

77 Idaho 342

Gladys E. DEVLIN, for and on behalf of Karin Jean Devlin, a minor, Claimant-Appellant, v. Paul B. ENNIS, Administrator of the Estate of William G. Searles, Employer, and State Insurance Fund, Surety, Defendants-Respondents.

Mrs. Ray Bozek, Intervenor-Appellant.

No. 8270.

Supreme Court of Idaho.

Jan. 13, 1956.

Rehearing Denied Feb. 6, 1956.

Martin & Martin, Boise, for claimant-appellant.

Walter M. Oros, Boise, for intervenor-appellant.

Paul B. Ennis, Boise, for respondent Estate.

Graydon W. Smith, Atty. Gen., Glenn A. Coughlan, Asst. Atty. Gen., for respondent State Ins. Fund.

ANDERSON, Justice.

This is a workmen's compensation case in which the main question is: Did the accident and resultant death of the employee arise out of his employment under I.C. sec. 72-201? It is conceded that it occurred in the course of his employment.

May 11, 1953, between 8:30 and 8:45 a. m., William G. Searles, age 52, went to the house of Mrs. Elizabeth Kenney, a widow, at 1118 Lemp Street, Boise, Idaho, where he had boarded for four years. He told her he had just shot a man, and to come and see what he was going to do. She invited him to come in and have a cup of coffee, but instead he went out to his car and shot himself with a .22 revolver, from the effects of which he died.

The revolver, when examined, was found to contain two empty cartridges. The police were notified, and an acquaintance and former employee of Searles, Robert G. Harlan, was also notified. When Harlan arrived at the scene and ascertained what Searles had said immediately prior to shooting himself, he suggested to the officers that they go to Searles' place of business, located at 1600 Main Street and known as Boise Auto Upholstery, to see if there was another man involved. They arrived there about 9 a. m. or shortly thereafter, and found the place of business locked, but observed through a window that the lights were on, and saw Eugene Devlin lying on the floor.

Upon gaining entrance, they found Devlin lying on his back with his hands in his side pockets, and there was a wound in the back of his head that appeared to have been caused from a small-caliber gun.

Harlan was an automobile trimmer, as was Devlin, and he had worked for Searles off and on between 1947 and 1952, and thereafter had business transactions with him. Harlan had known Devlin about a year. He knew Searles' tools and Devlin's tools, and observed that Devlin's tools were out on his workbench, an arm rest for a car was partly finished, and Devlin was dressed in his work clothes. A customer came in and asked about getting the arm rest while Harlan and the others were at the place of business.

The evidence discloses that during the afternoon of May 10, 1953, Mr. Devlin and Mrs. Kenney were together at the auto races at Nyssa, Oregon; that about 7:15 a. m. May 11, 1953, Searles was at his customary cafe for breakfast; that he left as usual about 7:45. He went to a service station across the street from the Boise Auto Upholstery just before eight o'clock, and wanted to pay his account there. The service station operator told him he had just paid his bill the first of the month, and Searles replied that 'I might take out of here pretty fast,' and complained that 'the kid' had broken up his home life. Another customer then came in, and Searles left.

The evidence in many respects is indefinite and uncertain, and there are statements in the briefs which are not supported by the evidence except from inference. It does not appear that a thorough investigation was made by any official, or anyone else, at the time of the deaths of the two men.

There is conflicting evidence as to difficulty between Searles and Devlin over Devlin's having gone out socially with Mrs. Kenney, the evidence being uncontradicted that she had at times gone out with each of them, that Searles had boarded with her for about four years, and she had known Devlin about one year. She had quarreled with Searles just prior to May 11, 1953, and asked him to obtain a place elsewhere to board, but testified the quarrel was not about Devlin.

Devlin, at the time of his death, was 26 years of age and divorced, and lived in an apartment on Sixteenth Street with his daughter, Karin Jean Devlin, then five and a half years of age and wholly dependent on him for care and support.

A claim for wrongful death of Devlin was filed by the special administrator of his estate in the estate of Searles, but at the time of the hearing it had neither been approved nor rejected; and a claim for workmen's compensation benefits, upon which this action is based, was filed with the Industrial Accident Board.

The Board found that Searles shot Devlin in the back of the head, which instantly caused his death, that the shooting was premeditated and the result of personal jealousy of Devlin, in nowise involving or arising out of the employer-employee relationship of the men or out of the employment itself, although the assault was in the course of the employment. Compensation was denied. An application for a rehearing was made by the intervenor and appellant, Mrs. Ray Bozek, a daughter of Searles and his sole and only heir. The ground upon which the application was based was that Searles was insane and suffering, at the time of the assault, from the disease known as alcoholic paranoia. The application was denied. The minor claimant, through her grandmother, Gladys E. Devlin, and Mrs. Bozek, the intervenor, have appealed.

The intervenor has urged throughout that workmen's compensation should be awarded the claimant. If such is done, it would not only sanction indirectly conduct of the employer in committing an assault upon the employee, but it would also permit the employer to use the workmen's compensation act to shield himself--in this case, his estate--from his civil liability in an action at law. Conway v. Globin, 105 Cal.App.2d 495, 233 P.2d 612.

Appellants in their reply brief contend that the Conway case is completely discredited, if not expressly overruled, by State Compensation Insurance Fund v. Industrial Accident Commission, 38 Cal.2d 659, 242 P.2d 311. We are of the opinion that neither contention is borne out. The factual situations in the two cases are entirely different. In the latter case there was a dispute between an employee and his superior (not his employer) in regard to the latter's treatment of the former in their relations as boss and worker. This was incidental to the employment, and arose out of it, while in the Conway case the injuries were the result of an unprovoked, wilful attack by the employer. The later California case relied on by appellants, 242 P.2d at page 318, states that the weight of authority supports the proposition that assaults arising from personal animosity are not compensable under the workmen's compensation act.

While there is some evidence tending to show that Searles may have been an alcoholic paranoiac or insane, nevertheless it does not appear that such was the cause of his killing Devlin, as it appears to have been done as the result of premeditation, and not in a sudden fit of insanity or an unmotivated frenzied attack as in the Pawnee cases, Pawnee Ice Cream Co. v. Cates, 164 Okl. 48, 22 P.2d 347 and Pawnee Ice Cream Co. v. Price, 164 Okl. 120, 23 P.2d 168; but it was the result of imaginary or real personal grievances in no way connected with the employment. There was not sufficient evidence to warrant a finding that Searles was insane under the insanity tests used in Idaho. Even if Searles was insane, his shooting Devlin was the result of a personal matter having no connection with Devlin's employment. The claimant had the burden to show by a preponderance of the evidence that Devlin's death resulted from an accident arising out of and in the course of his employment. Parkison v. Anaconda Copper Mining Co., 56 Idaho 610, 57 P.2d 1216; Walker v. Hyde, 43 Idaho 625, 253 P. 1104. This claimant failed to do.

Claimant contends that there is no competent evidence to show that Searles shot his employee Devlin, although the special administrator of Devlin's estate filed a claim in Searles' estate stating Devlin 'was shot in the back of the head by a revolver held in the hand of the said William G. Searles, his employer.' Even without considering this claim as evidence, there are other facts and circumstances sufficient to warrant the board's finding that Searles shot Devlin.

Claimant contends that there is no competent evidence to prove that the motive for the killing was personal jealousy, as the evidence of the service station operator should not have been admitted. The record discloses that these statements were made by Searles about 'the kid breaking up his home life' either a few minutes before or a few minutes after he killed Devlin, and were properly admitted, as was the statement to Mrs. Kenney to the effect that he had just shot a man. They were admissible to show motivation: i. e., that the cause of Devlin's death arose outside of his employment, and not out of it.

Much latitude is permitted the board in the admission of evidence, and we are of the opinion that there was substantial competent evidence to support the board's findings in this case. Findings of the board, when so supported, are conclusive on appeal. Swan v. Williamson, 74 Idaho 32, 257 P.2d 552. The credit and weight to be given the testimony in a compensation case is for the Industrial Accident Board. Benson v. Jarvis, 64 Idaho 107, 127 P.2d 784. All reasonable inferences drawn by the triers of the facts will be sustained on review. Smith v. University of Idaho, 67 Idaho 22, 170 P.2d 404.

In the case of Hudson v. Roberts, 75 Idaho 224, 229, 270 P.2d 837, 839, this court stated:

'It may be stated as a general rule that where an employee is assaulted and injury is inflicted upon him through animosity and ill will arising from some cause wholly disconnected with the employer's...