Epperson v. Industrial Commission

• Decision Date: 11 May 1976
• Docket Number: CA-IC,No. 1,1
• Citation: Epperson v. Industrial Commission, 549 P.2d 247, 26 Ariz.App. 467 (Ariz. App. 1976)
• Parties: Billie L. EPPERSON, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, Mountain Bell, Respondent Employer, Mountain Bell, Respondent Carrier. 1347.
• Court: Arizona Court of Appeals

Page 247

549 P.2d 247

26 Ariz.App. 467

Billie L. EPPERSON, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, Respondent Mountain Bell, Respondent Employer Mountain Bell, Respondent Carrier.

No. 1 CA-IC 1347.

Court of Appeals of Arizona, Division 1, Department C.

May 11, 1976.

Rehearing Denied June 18, 1976.

Review Denied July 13, 1976.

Ely & Bettini by Herbert L. Ely, Phoenix, for petitioner.

Greg L. Folger, Chief Counsel, The Industrial Commission of Arizona, Phoenix, for respondent.

Fennemore, Craig, von Ammon & Udall, by Michael Preston Green and Dwayne L. Burton, Phoenix, for respondent Mountain Bell.

OPINION

NELSON, Judge.

The primary question presented by this appeal is whether the assault upon Billie Epperson (Mrs. Epperson) on April 28, 1973 arose out of and occurred in the course of her employment with respondent Mountain Bell. The hearing officer found, and affirmed on review that while the assault occurred during the course of petitioner's employment, it did not arise out of that employment, and was therefore not compensable under the Workmen's Compensation Act of Arizona. We agree with this conclusion and therefore affirm the award.

Mrs. Epperson sustained a gunshot wound while on the premises of Mountain Bell. She was married to the assailant, Willie Epperson (Mr. Epperson). Their stormy marriage of over 20 years had been plagued by violent fights, often precipitated by Mr. Epperson's frequent intoxication and extreme jealousy.

On Friday, April 27, 1973, petitioner and her husband had a serious quarrel at home. Shortly thereafter, Mrs. Epperson left the house and went to work at Mountain Bell. That night she stayed in a motel with three of her four children. Mrs. Epperson went to work a little early on Saturday in hopes of avoiding a confrontation with her husband, who was familiar with her time schedule. Upon entering the employer's premises, petitioner told the security guard that she was having some personal difficulties with her husband and did not wish to see him if he should come to the building.

Mr. Epperson was angered by his wife's failure to return home Friday night. On Saturday morning he drank two bottles of beer and some Scotch, hid a gun under his shirt, and went looking for his wife. He arrived at the Mountain Bell building at approximately 10:30 a.m. At approximately 10:30 a.m., he was standing at the security guard's desk when his wife appeared in that area after returning from the cafeteria. Mr. Epperson approached Mrs. Epperson, and for approximately five to ten minutes conversed with her in an unthreatening manner and in a normal tone of voice.

Mr. Epperson urged his wife to talk with him; she insisted that she had to return to work. During this time petitioner did not address the security guard, nor did he speak to her. She testified that she walked in front of the guard to enable him to see anything that transpired. Mr. Epperson subsequently turned his back to the security guard, reached under his shirt, grabbed his gun, disarmed the guard, and shot his wife. Soon thereafter the police arrived and subdued Mr. Epperson.

In order for an injury to be compensable, it must 'arise out of' the employment and be sustained 'in the course of' the employment. Royall v. Industrial Commission of Arizona, 106 Ariz. 346, 476 P.2d 156 (1970). The term 'arising out of' is said to refer to the origin or cause of the injury, while 'in the course of' refers to the time, place and circumstances of the accident in relation to the employment. The hearing officer specifically found that the accident occurred in the course of Mrs. Epperson's employment. We agree with that finding. It thus becomes necessary to inquire whether the assault in question 'arose out of' Mrs. Epperson's employment.

If the motivating cause of an assault is purely personal, compensation is ordinarily denied. 1 Larson, Workmen's Compensation Law, § 11.21 (1972). This Court has stated that:

'When the animosity or dispute that culminates in an assault is imported into the employment from claimant's domestic or private life, And is not exacerbated by the employment, the assault does not arise out of the employment under any test.' Wyckoff v. The Industrial Commission of Arizona, 14 Ariz.App. 288, 482 P.2d 897 (1971). (Emphasis added)

The case at bar is factually distinguishable from Peter Kiewit Sons' Co. v. Industrial Commission of Arizona, 88 Ariz. 164, 354 P.2d 28 (1960). There the Court held the assault to be compensable because the subject matter of the dispute which led to the assault was causally related to the employment. Mrs. Epperson's case is also distinguishable from Toler v. The Industrial Commission of Arizona, 22 Ariz.App. 365, 527 P.2d 767 (1974), holding that the assault by an inebriated co-employee was compensable in the absence of any private non-work-related motivation for the assault.

Petitioner contends that her injuries resulted from an assault which arose out of her employment in that the assault was exacerbated by the employment. She points to three specific occurrences as having exacerbated the assault: 'The act of flirtation; the ending of her coffee break; and the reliance upon the security guard for protection.' We hold that none of these circumstances constituted an exacerbation of the assault by the employment so as to bring the assault within the meaning of the Workmen's Compensation Act.

There was no evidence of any act of flirtation on the part of either the security guard of Mrs. Epperson. We reject this argument summarily. The issue of suspected flirtation as an exacerbation of the employment situation has recently been treated in Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972) (reversing 10 N.C.App. 421, 179 S.E.2d 183 (1971)). In analyzing the issue of causal relation, the Court determined that the risk of murder by a jealous spouse was not an incident of employment. Similarly, marital friction and difficulties were not deemed to be risks arising out of the nature of the employment in question.

Mrs. Epperson next points to the fact that she angered her husband by telling him that she had to return to work after her break. She contends that this shows further exacerbation of the assault by her employment. This argument also fails to convince us that her work exacerbated the assault. The evidence supports the conclusion that Mr. Epperson's anger was stirred by the fact that she finally quit talking to him and walked away, rather than that she was going to return to work.

The third respect in which Mrs. Epperson contends that the assault was exacerbated by her employment is her reliance upon the security guard for protection. While the security guard had knowledge of the marital conflict and Mrs. Epperson's desire to have her husband denied admission to the building, the guard was not informed of Mr. Epperson's violent nature or the fact that he might be armed. Mr. Epperson was stopped at the door. It was not until his wife appeared in that area that he actually entered the building. The discussion between them was conducted in a normal voice. There was no request or indication of a need for assistance. From these facts one is not compelled to conclude that the guard knew of Mrs. Epperson's danger or that she had conveyed her fears sufficiently to justify any reliance upon the guard for protection.

Petitioner argues that Carter v. Penney Tire and Recapping Company, 261 S.C. 341, 200 S.E.2d 64 (1973) is apposite to the determination of this case. That case allowed an award of compensation because (1) the employer had been aware of some danger of assault to petitioner; (2) the employer required the workman to work in the face of that danger. There is no evidence in the record as to what Mountain Bell would have required had it been made aware of the existence of a danger to petitioner, hence this Court will not apply the Carter decision to the instant case.

Mrs. Epperson next argues that the 'arising out of' element is unnecessary in this case. She contends that A.R.S. § 23--901(9) only requires that the 'in the course of employment' element be established in cases involving the willful act of a third person. We disagree. In cases involving assaults, Arizona courts have consistently held that one must prove that the assault occurred in the course of employment And that it arose out of the employment. Peter Kiewit Sons' Co. v. Industrial Commission of Arizona, supra; Van Duzee v. The Industrial Commission of Arizona, 25 Ariz.App. 395, 543 P.2d 1152 (1975); Toler v. The Industrial...