January-Wood Co. v. Schumacher

• Decision Date: 26 November 1929
• Citation: 231 Ky. 705,22 S.W.2d 117
• Parties: JANUARY-WOOD CO. v. SCHUMACHER et al.
• Court: Kentucky Court of Appeals

22 S.W.2d 117

231 Ky. 705

JANUARY-WOOD CO. v. SCHUMACHER et al.

Court of Appeals of Kentucky

November 26, 1929

Appeal from Circuit Court, Mason County.

Proceeding by Belva Schumacher and others for compensation under the Workmen's Compensation Act for the death of Ben Schumacher, employee, opposed by the January-Wood Company employer. An award of compensation was refused by the Workmen's Compensation Board, and from a judgment of the circuit court remanding the case to the board with directions to award compensation, the employer appeals. Reversed.

Worthington Browning & Reed, of Maysville, and Blakey, Davis & Lewis, of Louisville, for appellant.

Allan D. Cole, of Maysville, for appellees.

STANLEY C.

Ben Schumacher was sole night watchman at the cotton mill of the appellant, January-Wood Company, in Maysville. Their employment relation was controlled by the Workmen's Compensation Act (Ky. St. §§ 4880-4987). Some time about 1 o'clock in the morning of December 9, 1919, Schumacher was shot and killed by Henry L. Eddings while in the course of his duty he was making the rounds in a remote part of the building. The evidence conclusively shows that there had been intimate relations existing between Eddings and Schumacher's wife, and the facts disclosed are, in brief that Eddings came from Lexington early in the night, climbed the fire escape to the third floor of the building, and thence went to the fourth floor, where he met the deceased, killed him, and then returned to Lexington the same night. He had until recently boarded in Schumacher's home, and at one time had been employed by the appellant company. He confessed the crime, but said he heard Schumacher had been threatening him and that he came to the mill to see and "to make peace with him," but when he met Schumacher at the place indicated the latter cursed him and threatened to kill him, whereupon he fired in self-defense, firing the second shot after Schumacher had fallen. Eddings was sent to the penitentiary for life for the crime. There was ample, competent evidence heard by the board (ignoring that which appellant claims was incompetent) to establish, as the court declared, ""with reasonable certainty that Henry L. Eddings, in malice personal to decedent, Schumacher, shot and killed him."

Upon application by Schumacher's widow and children for compensation under the provisions of the Workmen's Compensation Act, the board refused to make an award. On appeal the circuit court reviewed that decision and directed the case be remanded with directions to the board to award such sums as are provided by the statute. This appeal is from that judgment.

The act, section 4880 of the Statutes, affects liability of the employer coming within its terms "for personal injuries sustained by the employee by accident arising out of and in the course of his employment, or for death resulting from such accidental injury." It is conceded by the company that under the authorities construing the term its employee met death from injury sustained while in the course of his employment, but is strenuously and ably argued that it was not the result of injuries "arising out of" his employment. It is commonly held that this term has a meaning different from that of "in the course of his employment." A double condition is imposed. 28 R. C. L. 801. The latter phrase refers to time, place, and circumstances, while the former relates to the cause or origin of the accident. Phil Hollenbach Co. v. Hollenbach, 181 Ky. 262, 204 S.W. 152, 13 A. L. R. 524. The board held it was "unable to find that decedent's death arose out of his employment." Its decision is one of law and not of fact, hence the rule that the award will be sustained if there is any evidence to support it does not apply. The court therefore reviews the decision as a finding of law. Bates & Rogers Construction Co. v. Allen, 183 Ky. 815, 210 S.W. 467; Wilson Berger Coal Co. v. Brown, 223 Ky. 183, 3 S.W.2d 199.

The circuit court was of the opinion that Schumacher's death did arise out of his employment, predicating his conclusion upon the fact that the nature of his place of duty, to wit, its isolation and its darkened condition, with the fire escape providing a means of entrance and concealment by the one who killed him-in other words, the exposure to danger-created an environment inviting the attack and nerving the assailant to do his deed, thereby contributing to bring about his death.

Further reasons are thus given in the court's opinion: "Reviewing the proof in the record, it would appear that the malice of Eddings towards Schumacher had existed for a long time before the killing and, from the proximity of the parties, that he had abundant opportunity to have attacked Schumacher at other times and places, but this he did not do, but deliberately selected the place where he knew that Schumacher's duties as night watchman called him at the midnight hours as a place of ambush, where he could kill Schumacher with no eyewitness to the deed, and escape detection. Private malice was the exciting cause of the killing of Schumacher. But the environment of Schumacher in pursuing his duties as night watchman was a contributing cause, the inviting and precipitating cause. All this appears beyond controversy on the face of the record. The causal relation between the opportunity which the nature of Schumacher's duties as night watchman afforded his assassin for the commission of the crime, and the commission of the crime itself is manifest."

The court also considered the fact that compensation statutes of the various states-all modeled on the English statute-are very similar, and that in some of them there is specific provision against liability for assault committed in malice personal to the injured party, while the Kentucky act omits such proviso; the inference being, according to the reasoning of the court, that such provision was purposely omitted from our act. Strengthening that inference is the fact that section 4890 recognizes that there may be compensable injuries though inflicted by a third party. Coupled with these deductions, said the court, is the statutory mandate of a liberal construction.

The ultimate determination of the case depends upon the interpretation and application of the clause "arising out of his employment." While the compensation acts of the several states are quite similar, there is a hopeless confusion among the judicial decisions respecting the meaning of this term. Some of these opinions are undoubtedly affected by conditions in the acts being interpreted which do not appear in the Kentucky act. So too, of course, are those decisions based upon various and divergent facts. Undoubtedly also they are influenced by the tendency of some courts to regard compensation acts as a species of general social insurance, and of others to regard them as but the extension of the doctrine of negligence as developed in the old law of master and servant. It seems to us the correct conception lies between these extremes. Cf. Phil Hollenbach v. Hollenbach, supra.

Many courts agree with the Massachusetts Supreme Court in its construction as thus expressed in the leading case of In re McNicol, 215 Mass. 497, 102 N.E. 697, L. R. A. 1916A, 306: "It is sufficient to say that an injury is received 'in the course of' the employment when it comes while the workman is doing the duty which he is employed to perform. It arises 'out of' the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises 'out of' the employment."

The fundamental principle of liability, it seems to us, is that the injury sustained was such as in the light of experience might reasonably have been foreseen as a result of the...