Liebman v. Colonial Baking Co.

Decision Date18 May 1965
Docket NumberNo. 31785,31785
Citation391 S.W.2d 948
PartiesWilliam G. LIEBMAN, Employee, (Plaintiff) Respondent, v. COLONIAL BAKING COMPANY, Employer, and Royal Indemnity Company, Insurer, (Defendants) Appellants.
CourtMissouri Court of Appeals

Albert I. Graff, Malcolm I. Frank, St. Louis, for appellants.

George R. Gerhard, St. Louis, for employee-respondent.

L. F. COTTEY, Special Judge.

We have before us a claim for workmen's compensation which has been denied by the Industrial Commission on the theory that the accident is governed by the 'assault doctrine,' but which the Circuit Court of the City of St. Louis has allowed, on appeal, by applying the 'street hazard doctrine.' To resolve that conflict it will be necessary to examine both of the doctrines that contributed to it, and, as occasion demands, to explain the purpose and define the proper elements of each. The facts are deceptively simple, but the subject they introduce has not infrequently proven to be so controversial in precept and so contradictory in example as 'to perplex and dash maturest counsels.'

Respondent was employed by a wholesale baking company. His duties required him to make deliveries of the company's products by truck to various retail outlets in St. Louis. About noon one day he parked his truck near the market of a regular customer, walked across the sidewalk to deliver an order of bread, and, as he approached the door, was assaulted from behind by a drunken stranger without motive or provocation. The facts are undisputed and so present a question of law only. May v. Ozark Central Telephone Co., Mo.App., 272 S.W.2d 845, 848. It is conceded that the incident occurred 'in the course of' respondent's employment; the question is whether it arose 'out of' the employment, as our statute with equal emphasis requires. Sec. 287.120, V.A.M.S.; Williams v. Great Atlantic & Pacific Tea Co., Mo.App., 332 S.W.2d 296, 298.

The familiar rule is that an accident will be held to have arisen 'out of' the employment when, from a consideration of all the relevant circumstances, it appears that there was a direct causal connection between the employment and the injury (attributable either to the nature of the employee's duties or to the conditions under which he was required to perform them) so that the accident can fairly be said to have been a rational consequence of some hazard connected with (or aggravated by) the employment. Toole v. Bechtel Corporation, Mo., 291 S.W.2d 874, 879; Gregory v. Lewis Sales Co., Mo.App., 348 S.W.2d 743, 745-6; Scherr v. Siding & Roofing Sales Co., Mo.App., 305 S.W.2d 62, 65; Long v. Schultz Shoe Co., Mo.App., 257 S.W.2d 211, 212; May v. Ozark Central Telephone Co., supra, 272 S.W.2d 849. That is the cardinal requirement for compensability in all cases in Missouri, no matter how or where the accident may have occurred and no matter in what category the causative risk may be classified. Its basic factors are 'causal connection' and 'rational consequence.' When they are shown to exist, the test has been satisfied; otherwise, it has not.

Accidents sometimes happen, however, under unusual and confusing circumstances that tend to obscure or divert attention from the essential elements of the test. In such cases a decision as to whether the requirement has been met is always difficult and often doubtful. A special doctrine is simply a method or rule by which the factors of causal connection and rational consequence may be searched out and assigned their proper value in cases involving those more unusual and confusing circumstances; to the end that the facts peculiar to each may be more regularly analyzed by the test that is common to all. Such a doctrine, if it is to serve that purpose usefully, should be as definite in scope, as logical in method and as dependable in result as the inexact nature of the science will allow. It is not the function of a special doctrine to resolve the question as to whether the accident arose 'in the course of' the victim's employment. That is a preliminary test to be satisfied before there is any necessity for invoking the doctrine in aid of a final decision; implicit in its use is the assumption that that prerequisite finding has been made. In the ordinary case of an accident resulting directly from some act the employee is doing at the time, there will be no need to resort to the doctrine to establish compensability. But where it is claimed, as in the case at hand, that the incident has been produced by some hazard existing in the working environment, the chain of causal connection is lengthened, the relevant considerations are more diverse and complex, and the relationship of the accident to the employment is understandably more tenuous and obscure. It is in this type of case that a special doctrine most readily demonstrates its usefulness--and most commonly reveals its faults.

Those observations, made hopefully with the view of giving direction to the discussion, bring us now to the cases which confirm them, by implication or expression.

The assault doctrine has been fully developed in Missouri. It is possible to illustrate its scope and method by examples remarkably free of the contradictions that have attended its use in some other jurisdictions. Assaults divide conveniently into three classes. Larson's Workmen's Compensation Law, Sec. 7, p. 48 et seq.; Sec. 11, p. 131 et seq.; Kelly v. Sohio Chemical Co., Mo.App., 383 S.W.2d 146, 147.

1st: Those which are invited by the dangerous nature of the employee's duties, or by the dangerous environment in which he is required to perform them, or are the outgrowth of frictions generated by the work itself, but which, in either event, are invariably revealed to be the result of some risk directly attributable to the employment. Injuries resulting from assaults of that character are compensable in Missouri. Typical examples may be found in Hacker v. City of Potosi, Mo., 351 S.W.2d 760, where a policeman was shot while investigating a traffic violation, and in Macalik v. Planter's Realty Co., Mo.App., 144 S.W.2d 158, where a foreman was murdered in retaliation for having fired the assailant's son. See also, Reed v. Sensenbaugh, 229 Mo.App. 883, 86 S.W.2d 388; Carlton v. Henwood, 232 Mo.App. 165, 115 S.W.2d 172; O'Dell v. Lost Trail, Inc., 339 Mo. 1108, 100 S.W.2d 289; Kaiser v. Reardon Co., 355 Mo. 157, 195 S.W.2d 477; Stephens v. Spuck Iron & Foundry Co., 358 Mo. 372, 214 S.W.2d 534; Pearce v. Modern Sand & Gravel Co., 231 Mo.App. 823, 99 S.W.2d 850; Keithley v. Stone & Webster Engineering Corp., 226 Mo.App. 1122, 49 S.W.2d 296; and Daugherty v. City of Monett, 238 Mo.App. 924, 192 S.W.2d 51.

2nd: Those committed in the course of private quarrels that are purely personal to the participants. Injuries resulting from assaults of that character are non-compensable in Missouri. Typical examples may be found in Lardge v. Concrete Products Mfg. Co., Mo., 251 S.W.2d 49, where the employee was struck in retaliation for his charge that the assailant had stolen his wine, and in Foster v. Aines Farm Dairy Co., Mo., 263 S.W.2d 421, where the fatal quarrel was triggered by the participants' community of interest in the victim's wife. See also, Toole v. Bechtel Corp., Mo., 291 S.W.2d 874, and Staten v. Long-Turner Const. Co., Mo.App., 185 S.W.2d 375.

3rd: Irrational, unexplained or accidental assaults of so-called 'neutral' origin, which, although they occur 'in the course of' the victim's employment, cannot be attributed to it on any more rational basis than that the employment afforded a convenient occasion for the attack to take place. In some jurisdictions that circumstance is regarded as a sufficient reason for awarding compensation; but not in Missouri. Examples may be found in Ries v. De Bord Plumbing Co., Mo.App., 186 S.W.2d 488, where the employee was assaulted at his assigned place of work by a stranger with no apparent motive; In Kelly v. Sohio Chemical Co., supra, where the employee was struck down from behind in her office by an unknown assailant for no discoverable reason; in May v. Ozark Central Telephone Co., supra, where, for the sake of the discussion, it was assumed that the employee had been accidentally shot by a hunter while working in a wooded area; in Long v. Schultz Shoe Co., supra, where the employee was struck by a stray bullet in the course of a shooting scrape between other employees on the premises; and in Scherr v. Siding & Roofing Sales Co., supra, where a salesman calling on a customer at the latter's place of business was hit by an object thrown wildly by another visitor on the premises.

In every Missouri case involving an assault of 'neutral' origin compensation has been denied. The rationale in each, insofar as it is pertinent to the issue before us, has been that the risk of unprovoked assault is no more logically attributable to one man's employment than to another's unemployment, and that the mere fact that the employment provided a convenient opportunity for the assault to take place, as by bringing the victim and his assailant together at the point where it occurred, is insufficient to establish any causal connection between the employment and the injury, or to show that the latter was a rational consequence of the former.

That is the assault doctrine in Missouri. In its essential features and in the result to which it leads it conforms to the rule in the majority of jurisdictions, although not without exception or criticism. Annotations, 15 A.L.R. 588, 21 A.L.R. 758, 29 A.L.R. 437, 40 A.L.R. 1122, 72 A.L.R. 110, 112 A.L.R. 1258, 8 A.L.R. 395, 23 A.L.R. 403; 99 C.J.S. Workmen's Compensation Sec. 227, p. 765 et seq.; Larson's Workmen's Compensation Law, Sec. 11.31, p. 184 et seq.; Schneider's Workmen's Compensation, Vol. 6, Chap. 22, p. 116 et seq.; 58 Am.Jur., Workmen's Compensation, Sec. 265, p. 765-6. The assault in the case before us was clearly of neutral origin. We...

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