Hawkins v. Portland Gas Light Co.

• Decision Date: 16 August 1945
• Citation: 43 A.2d 718
• Parties: HAWKINS v. PORTLAND GAS LIGHT CO. et al.
• Court: Maine Supreme Court

43 A.2d 718

HAWKINS

v.PORTLAND GAS LIGHT CO. et al.

Supreme Judicial Court of Maine.

Aug. 16, 1945.

Appeal from Superior Court, Cumberland County.

Proceeding under Workmen's Compensation Act by Margaret L. Hawkins, alleged dependent daughter of Nelson Hawkins, deceased, for compensation because of decedent's death, opposed by Portland Gas Light Company, employer, and others. From a decree denying compensation, the claimant appeals.

Appeal dismissed and decree affirmed.

Edward B. Perry, of Portland, for appellant.

Forrest E. Richardson, of Portland (Robinson, Richardson & Leddy, of Portland, of counsel), for appellee.

Before STURGIS, C. J., and THAXTER, MANSER, MURCHIE, and CHAPMAN, JJ.

MANSER, Justice.

Nelson Hawkins was killed while in the employ of the Portland Gas Light Co. by a shot from a revolver in the hands of a crazed United States soldier. His daughter, Margaret L. Hawkins, alleged dependent, sought an award of compensation upon the ground that the injury causing the death of her father arose out of and in the course of his employment as a foreman working for the defendant Company.

Hearing was had before a Commissioner of the Industrial Accident Commission. So far as material to the present issue, his findings of fact were as follows:

‘Hawkins was on the shift whose hours of employment were from three to eleven o'clock in the evening. At some time between seven and seven-thirty, Hawkins, with two other employees, was in the front office of the plant. This plant was enclosed by a board fence some six feet high, with barbed wire strung on its top. The office was close to the fence on the Commercial Street side, and not far from the gate. The gate, as high as the fence, also had barbed wire on its top. The only means of entrance to the plant or its property was either through the gate or over the fence. The gate was closed and locked.

‘As the three men were together there in the office they heard a noise which might, they thought, have been either the backfire from an automobile or a rifle shot. All three proceeded leisurely toward the gate, apparently with no one having any anxiety that the company's property was in any way endangered. Hawkins unlocked the gate, opened it, and the three men stepped through into the darkness.

‘At the time, the waterfront was being guarded by colored troops of the United States Army. Such troops were guarding the railroad right of way which adjoined the gas company's property on the Commercial Street side. As the eyes of the three men became accustomed to the darkness, they saw a colored soldier standing with his rifle pointed toward them. The soldier muttered something that was unintelligible to the men, then said distinctly, ‘I mean you,’ and fired a shot from his rifle. The shot killed Hawkins and wounded one of the other men. The soldier, as it afterward developed, had already shot one soldier, and, after killing Hawkins, was to shoot another soldier.'

The Commissioner then stated the resulting issue thus:

‘Did Nelson Hawkins' death occur under such circumstances as to make it compensable under the Workmen's Compensation Act? Was it injury ‘arising out of and in the course of his employment’ within the meaning of that phrase as used in Section 8, Chapter 55, 1930 Revised Statutes?'

The Commissioner ruled as follows:

‘This assault by the crazed soldier did not occur because of Mr. Hawkins' employment. Mr. Hawkins was not exposed to the danger of such an assault any more than a member of the public generally who might have been in the neighborhood at the time the soldier was shooting so promiscuously. The evidence does not warrant a finding either that Mr. Hawkins was in the act of protecting his employer's property or that such property was in fact endangered, or even that Mr. Hawkins thought it was. He was not fired upon because he was an employee of the gas light company.’

The petition for award of compensation was dismissed, and the case is before the Court upon an appeal from the subsequent decree of a Justice of the Superior Court denying compensation.

The familiar rule of the statute that the decision of the Commissioner in the absence of fraud, upon all questions of fact, shall be final, is not challenged by the appellant, but it is claimed that the statute has been misconstrued and that the Commissioner was in error in making application of the legal principles to the facts as found, and further that he did not apply the proper rule as to the burden of proof.

In his discussion of the law the Commissioner cited In re McNicol, 215 Mass. 497, 102 N.E. 697, L.R.A.1916A, 306, which since 1913 has been an expository guide to many courts, including our own, in the interpretation of the particular requirement of the statute here involved. Other authorities referred to in our own jurisdiction were Case of Fournier, 120 Me. 236, 113 A. 270, 23 A.L.R. 1156; Case of Gray, 123 Me. 86, 121 A. 556, and Weymouth v. Burnham & Morrill Co., 136 Me. 42, 1 A.2d 343. Harbroe's Case, 223 Mass. 139, 111 N.E. 709, L.R.A.1916D, 933, was cited for the reasoning of the court upon a similar factual situation. The decision also showed study and consideration of the cases annotated in 15 A.L.R. 595, 21 A.L.R. 760, 29 A.L.R. 442, 40 A.L.R. 1127, 72 A.L.R. 114 and 112 A.L.R. 1262.

Reams have been written undertaking to define and apply the simple, expressive requirement of the statute that, in order to be entitled to compensation, an employe must have received ‘a personal injury by accident arising out of and in the course of his employment.’ The Commissioner decided that this accident did not arise out of the employment. The inescapable connotation of the phrase is that the injury must have been due to a risk to which the employe was exposed because employed by the defendant. Case of Mai...