Ensley v. Grace
Decision Date | 06 September 1966 |
Docket Number | No. 7869,7869 |
Citation | 417 P.2d 885,1966 NMSC 181,76 N.M. 691 |
Parties | Robert J. ENSLEY, as next friend of Janet L. Ensley, a minor, Plaintiff-Appellant, v. W. R. GRACE and Maryland Casualty Company, Defendants-Appellees. |
Court | New Mexico Supreme Court |
This is an appeal from a judgment entered at the conclusion of plaintiff's case, denying workmen's compensation to which appellant claims to be entitled by reason of the death of Thelma L. Ensley allegedly arising out of and in the course of her employment. The appellant is the thirteen-year-old daughter of decedent.
There is no real dispute as to the facts. When killed, Thelma L. Ensley was employed by W. R. Grace and Company as a bookkeeper. One Ike Rodgers was employed by the same company as manager of its Las Cruces store. Although Mrs. Ensley generally returned home from work at about 5:30 P.M., on the day of her death she did not. At about 6:00 P.M., Ike Rodgers was seen standing in his office behind a desk. Between 8:30 P.M. and 9:00 P.M., the bodies of both Mrs. Ensley and Mr. Rodgers were discovered in the office. On the day of the shooting, Mr. Rodgers had purchased a pistol. The court found that Mrs. Ensley had been killed by Mr. Rodgers who then took his own life. However, there was nothing to indicate why Mrs. Ensley had been shot. There was no evidence of any misconduct or any contact between Mrs. Ensley and Mr. Rodgers except in connection with their work. When the bodies were found some of Mrs. Ensley's work papers were spread out on her desk.
Based on these facts, the court found that the accident and death of Mrs. Ensley did not arise out of her employment, and that evidence was not produced to establish a causal connection between the death and the employment. These determinations are here attacked.
That the death occurred in the course of employment is conceded, but it is strenuously urged that it did not arise out of the employment. Our statute, § 59--10--13.3, subd. A, N.M.S.A.1953, provides that, 'claims for workmen's compensation shall be allowed only: (1) when the workman has sustained an accidental injury arising out of, and in the course of his employment; * * *.' Concerning these terms and their application, we said in Berry v. J. C. Penney Co., 74 N.M. 484, 394 P.2d 996:
We note the statement that 'the accident must result from a risk incident to the work itself.' Does this mean that if a person is working at a placed where no guns or dangerous instrumentalities are present, injuries or death resulting from being shot or otherwise injured are not to be compensated because not arising out of a 'risk incident to the work itself'? In Walker v. Woldridge, 58 N.M. 183, 268 P.2d 579, the statement is made that for an injury to arise out of employment, it 'must be reasonably incident to the employment' or must 'flow therefrom as a natural consequence.'
Larson, in his work on Workmen's Compensation, Vol. 1, § 7.00, places 'risks' in three categories, viz., those associated with the employment, those personal to the claimant, and those having no particular employment or personal character, which he calls 'neutral.' He states accidental injuries in the first class are universally compensable. Houston v. Lovington Storage Company, 75 N.M. 60, 400 P.2d 476, is of this class. Injuries in the second category are universally noncompensable. Berry v. J. C. Penney Co., supra, and Luvaul v. A. Ray Barker Motor Company, 72 N.M. 447, 384 P.2d 885, are of this character. It is in connection with the third class that most controversy occurs and difficulties are presented. Whitehurst v. Rainbo Baking Company, 70 N.M. 468, 374 P.2d 849, is of this class. Larson states that, 'the view that the injury should be deemed to arise out of employment if the conditions of employment put claimant in a position to be injured by the neutral risk is gaining increased acceptance.' In § 7.30, he states:
(Emphasis added.)
Larson further states, in §§ 11.00 and 11.33:
In our view of the instant case, we have a situation where decedent met her death by reason of an unexplained assault on her by her co-employee while she was at work at her usual place of employment. In the circumstances, and under the proof, we think the following language in Houston v....
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