Duerock v. Acarregui

• Decision Date: 03 March 1964
• Docket Number: No. 9350,9350
• Citation: 87 Idaho 24,390 P.2d 55
• Parties: Mildred V. DUEROCK, Claimant-Appellant, v. Floyd ACARREGUI, dba Main Motel, Employer, and Hartford Accident & Indemnity Company, Surety, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 55

390 P.2d 55

87 Idaho 24

Mildred V. DUEROCK, Claimant-Appellant, v. Floyd ACARREGUI, dba Main Motel, Employer, and Hartford Accident & Indemnity Company, Surety, Defendants-Respondents.

No. 9350.

Supreme Court of Idaho.

March 3, 1964.

Rehearing Denied March 25, 1964.

Givens, O'Leary, Doane & Givens, Boise, for appellant.

Elam, Burke, Jeppesen and Evans, Boise, for respondents.

TAYLOR, Justice.

In May, 1960, claimant (appellant) Mildred Duerock was employed by defendant (respondent) Floyd Acarregui, as manager of the Main Motel, in Boise. Hort Duerock and claimant had been husband and wife since November, 1921.

At the hearing before the board, except for the testimony of two doctors as to her injuries, claimant was the only witness and--although both parties had available testimony to corroborate her testimony--it was stipulated that claimant's testimony together with certain documentary exhibits, 'shall constitute the facts of the case to be submitted to the board.' So far as pertinent to the issue presented by this appeal, the facts were correctly summarized by the board as follows:

'Mrs. Duerock as manager of the motel was required according to her testimony to be available for duty 24 hours a day. Under the arrangement made with her employer in May, 1960, she and her husband were allowed living quarters, an unfurnished five-room apartment back of and adjoining the motel office. The employer also assumed the cost of utility services for the apartment. To enter the apartment from the front it was necessary to go through the motel office, where a telephone switchboard was located. The door bell at the entrance to the motel office was fixed to ring in the manager's apartment. The apartment consisted of a living room, two bedrooms, a kitchen, with dinette, a bathroom and storage space.

'It was a part of the arrangement with the employer that the manager's husband, Hort Duerock, in his spare time would assist here as a handyman and repairman.

'In money the couple received $250 per month by check made payable to Mrs. Duerock. At the end of every two-week period the couple were relieved from duty for two days by Acarregui and his wife, who would come over from their home in Jordan Valley [Oregon].

'When the Duerocks were first employed, Hort Duerock had a regular job elsewhere as a mechanic. He was laid off from that job in October of 1960 by reason of his inability to work regular hours, primarily due to his alcoholism. During the period from October, 1960 until January 20, 1962, his only employment was sporadic aid in and around the motel premises as a handy man.

* * *

* * *

'For about 20 years prior to January 20, 1962, Hort Duerock had been drinking alcoholic beverages in increasing quantities, and as a result was finding it increasingly difficult to hold a job as a mechanic, a trade in which he excelled during the early years of their marriage. For a long time prior to January 20, 1962, claimant and her husband had had many serious quarrels. Although they had their 'good moments,' in general during the period of several years prior to Hort Duerock's death, their domestic life was filled with strife and discord.

'On three specific occasions in the last few years, Duerock had threatened to take his wife's life with a gun. One such occasion was in California in 1955.

Another in November of 1961, on which occasions Mrs. Duerock called the police.

'Claimant filed suit for divorce from her husband on July 6, 1961, alleging extreme cruelty on his part. Within five or six weeks, however, in response to his entreaties and promises to amend his way, claimant resumed living with him in an attempt to save their marriage. The attempt was apparently futile and it appears if anything conditions worsened.

'The Duerocks brought with them to their employment at defendant-employer's motel their marital difficulties of long-standing. Their problems were soon aggravated by the husband's loss of his regular job as a mechanic. It appears that claimant's husband resented the fact that his wife had become the primary breadwinner of the family and he the dependent. He had little to occupy his time except drinking. On several occasions Hort Duerock took money from the business till for liquor, which funds claimant replaced. On several occasions claimant remonstrated with her husband about coming into the motel office in drunken condition when patrons were present. Hort Duerock often expressed dissatisfaction with the motel employment and suggested or demanded that they leave and find other employment and reside elsewhere; claimant replied that until he could rehabilitate himself and earn their living she would have to remain, as they did not have any independent means. Her husband in particular objected to the annoyance of partrons ringing the doorbell and buzzing the telephone switchboard.

'There had been a heavy snowfall on January 30, 1962. Mrs. Duerock employed a man to shovel snow around the motel. Her husband assisted him. The job was finished about 3:30 p. m. In the late afternoon Duerock, who had been drinking all day, came into the motel office in an intoxicated condition. After the patrons present had left, claimant asked him to leave and not to come in there again in such condition. He went into their living room. Claimant went into their kitchen to prepare supper. Duerock followed her and again complained of the 'bells and things' ringing and demanded that she quit. Claimant responded to the effect that until he found a job she could not quit hers, and that she did not want to discuss it any more. Whereupon he slapped her face. She said: 'Don't you ever strike me again.' He said something to the effect that: 'Well, I know how to end this thing and it won't take two minutes.' These were the last words spoken between them.

'Duerock left the room. Mrs. Duerock continued with the preparation of their meal, placed it on the table and called him to eat. She filled her plate and carried it into the living room, set it on the coffee table and then was interrupted by a switchboard call. Then claimant returned to the living room to resume her meal while watching television. Her husband was eating his meal in the dinette. He got up, went into the bedroom and returned and stood beside and behind her and shot her with a .32 calibre revolver, the bullet causing a deep two-inch gash in the upper portion of her head. The would paralyzed her and she did not hear the shot, but observed him leaving the room, reentering the dinette-kitchen with the gun in his hand. Unknown to her at that time, he then shot himself in the right temple with fatal effect.'

On these facts the board ruled:

'The attempted assassination of his wife by Hort Duerock was pre-meditated. He harbored his evil intent years before the beginning of their employment by the defendant employer herein. His act was not that of a co-employee but of a selfish, bestial husband. His assault grew out of long years of marital infelicity.

'The injury which her husband inflicted upon claimant was not the result of an accident arising out of and in the course of her employment with Acaregui. It did not occur on the employer's business premises but, in the private residential abode of the husband and wife. It was their home * * *.

'It occurred during their dinner hour when neither was performing any active service for the employer. It is true that Mrs. Duerock was on standby service to answer the telephone in the adjoining office and to answer a call bell at the outer entry to the motel office, and that stortly before the assault she had performed such services. But she had returned from that mission and was sitting in a chair in her living room, eating her dinner from a plate in her lap, while watching television, when her husband without warning with felonious intent shot her. Her injury was not the result of an industrial but of a domestic hazard.'

Claimant brought this appeal from the order of the board denying compensation.

Whether claimant's injury arose out of her employment is the sole issue presented. Although at the moment the accident occurred claimant was not actively engaged in the service of her employer, she was on duty subject to immediate call to that service. Therefore the accident occurred in the course of her employment. Stewart v. St. Joseph Lead Co., 49 Idaho 171, 286 P. 927; 1 Larson's Workmen's Compensation Law, § 24.00. Cf. Colson v. Steele, 73 Idaho 348, 252 P.2d 1049.

In order to determine whether the injury arose out of the employment it was necessary for the board to receive and consider evidence of the past domestic difficulties between claimant and her husband and other facts leading up to, and resulting in, the shooting.

Portions of claimant's testimony which substantially support the conclusion of the board as to the cause of the assault are as follows:

On direct examination:

'Q I will ask you this, Mrs. Duerock, did at any time your husband, Hort, indicate to you his particular attitude or state of mind regarding your working at the motel, or his working at the motel?

'A Well he wanted me to take that job.

'Q I beg your pardon?

'A He wanted me to take that job.

'Q That was in----?

'A In 1960, and as I was staying home and I wanted to work, I thought it would be good for me to get out and work and I went down to Mr. Acarregui and applied for the job--and I got it, and up until October 1960 he was perfectly willing and he liked the job, and when he couldn't work at his occupation any longer he became dissatisfied with the motel work and he began to drink more and more and when he was there he was very dissatisfied. * * *

'A I said when he could take me and make a living for me, I would quit, but I asked him what we would live on. He had no job and no money and he was sick all the time, and I asked what we would live on and he said he would find work, but he was in no condition to work. He was sick all the time and----'

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