Lippmann v. North Dakota Workmen's Compensation Bureau

• Decision Date: 30 October 1952
• Docket Number: No. 7325,7325
• Citation: 55 N.W.2d 453,79 N.D. 248
• Parties: LIPPMANN v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU.
• Court: North Dakota Supreme Court

Page 453

55 N.W.2d 453

79 N.D. 248

LIPPMANN v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU.

No. 7325.

Supreme Court of North Dakota.

Oct. 30, 1952.

Rehearing Denied Nov. 21, 1952.

Syllabus by the Court

1. The provision of the North Dakota Workmen's Compensation Law, NDRC 1943, 65-0102(8), that "injury' shall mean only an injury arising in the course of employment including an injury caused by the willful act of a third person directed against an employee because of his employment, but such term shall not include an injury caused by the employee's willful intention to injure himself or to injure another nor any injury caused by the voluntary intoxication of the employee,' is construed and it is held for reasons stated in the opinion:

(a) that the words 'in the course of employment' have reference to the time, place and circumstances of the accident resulting in the injury for which compensation is claimed;

(b) that an injury is sustained 'in the course of employment' when the accident occurs and the injury is sustained within the period of the employment at a place where the employee reasonably may be in performance of his duties and while he is fulfilling those duties or is engaged in doing something incidental thereto in the furtherance of the employer's business;

(c) that the words 'including an injury caused by the willful act of a third person directed against an employee because of his employment' do not operate as a limitation upon the preceding words that 'injury shall mean only an injury arising in the course of employment' so as to restrict the right to compensation for an injury caused by the willful act of a third person to one directed against the employee because of his employment.

2. Any injury arising in the course of employment, which is not caused by the employee's willful intention to injure himself or to injure another or by the voluntary intoxication of the employee, is a compensable injury under the provisions of the North Dakota Workmen's Compensation Law.

3. An injury to an employee caused by the willful act of a third person directed against the employee because of his employment (but not including an injury caused by the employee's willful intention to injure himself or to injure another or an injury caused by the voluntary intoxication of the employee) is compensable under the North Dakota Workmen's Compensation Law.

4. In the instant case a waitress in a restaurant who was engaged in serving food to patrons and carrying dishes to and from the booths and counters where patrons were being served, and generally doing the work which she had been employed to perform, and who while so engaged was shot and severely injured by a patron in the restuarant sustained an injury in the course of her employment which was compensable under the North Dakota Workmen's Compensation Law.

E. T. Christianson, Atty. Gen., and Paul M. Sand, Asst. Atty. Gen., for appellant.

McGee & McGee, Minot, for respondent.

CHRISTIANSON, Judge.

This is an appeal from a judgment in a proceeding under the Workmen's Compensation Law. The proceeding was instituted by the claimant to recover compensation pursuant to the provisions of the Workmen's Compensation Law of this state. NDRC 1943, Title 65.

The claimant had been employed as a waitress by the Rex Cafe at Minot. On January 15, 1950, while so employed and while in the active discharge of her duties as such employee she was shot and severely wounded by one Aga, who at the time was sitting at a counter where customers were being served food which they had ordered. Aga had been drinking a cup of coffee, which had been served him by one of the other waitresses. Immediately after firing the shot at the claimant Aga shot and killed himself.

The claimant in the ordinary course of her duties would take orders from patrons at the counter and booths as well as carry dishes to and from the kitchen. The Rex Cafe was located close to the bus depot and within one-half block of the depot of the Great Northern Railway Company. The claimant testified as follows concerning the shooting:

'Q. Can you tell us what you were doing at the time when you were shot? A. I had just piled up some dishes, cups and saucers had finished stacking them and was going back to the kitchen.

'Q. At the time you were shot where were you going? A. Going back to the kitchen to get more dishes.

'Q. To get more dishes to bring out and stack? A. Yes.

'Q. And where were you with reference to Mr. Aga at the time you were shot? A. Right behind the counter, in front of him.'

The Rex Cafe, the employer of the claimant, had duly complied with the provisions of the Workmen's Compensation Law of North Dakota. NDRC 1943, 65-0105. The claim was dismissed by the Workmen's Compensation Bureau 'for the reason that the injury did not happen in the course of the employment or because of her employment.' Plaintiff thereupon duly appealed to the District Court from the determination of the Bureau. In the specifications of error in the notice of appeal exception was made to the finding of fact that the injuries sustained by the plaintiff on January 15, 1950, did not happen in the course of employment or because of her employment and it was also specified that the Workmen's Compensation Bureau erred in its conclusion of law that the injuries did not happen in the course of employment or because of her employment.

The procedure and the scope of review on such appeal from a determination of the Workmen's Compensation Bureau is prescribed by NDRC 1943, 28-3219, which, so far as material here, reads as follows:

'The court shall try and hear an appeal from the determination of an administrative agency without a jury and the evidence considered by the court shall be confined to the record filed with the court. * * * After such hearing, the court shall affirm the decision of the agency unless it shall find that such decision or determination is not in accordance with law, or that it is in violation of the constitutional rights of the appellant, or that any of the provisions of this chapter have not been complied with in the proceedings before the agency, or that the rules or procedure of the agency have not afforded the appellant a fair hearing, or that the findings of fact made by the agency are not supported by the evidence, or that the conclusions and decision of the agency are not supported by its findings of fact. If the decision of the agency is not affirmed by the court, it shall be modified or reversed, and the case shall be remanded to the agency for disposition in accordance with the decision of the court.' NDRC 1943, 28-3219; Feist v. North Dak. Workmen's Compensation Bureau, 77 N. D. 267, 269, 42 N.W.2d 665, 666.

The trial court after hearing and due consideration rendered its decision reversing the determination of the Workmen's Compensation Bureau. The court found as facts:

'That on or about the 15th day of January, 1950, Ruth Bruesch was working as a waitress in the Rex Cafe in Minot, North Dakota. That while in her employment and while on duty she was shot four times through the limbs and body by one Wayne Aga, following which Wayne Aga committed suicide.

'That at the time of said shooting Ruth Bruesch Lippmann was an employee and actually engaged in her employment.

'That at the time of the shooting the said Ruth Bruesch was working back of the counter in the Rex Cafe and was engaged in carrying crockery from the kitchen to the front of the cafe. That as she passed in front of one Wayne Aga, who was a patron sitting at the counter on a stool drinking a cup of coffee, he shot her with a German Lugar Pistol. At the time of the shooting, she was wearing her apron and had her order books on her person.

'That the claimant, Ruth Bruesch, was shot four times through the body and limbs, by a 38 Caliber Revolver, resulting in wounds in both the right and left arm, and right leg and abdomen, total of fifteen bullet wounds. The ulnar and medial nerves of the right arm having been cut, the left ulna fractured, two holes through the stomach, laceration of the pancreas, and laceration of the liver and gall bladder. The nerves of the right arm arm splintered and the fingers are now immovable.

'That at the time of the injury the employer had complied with all the requirements of the North Dakota Workmen's Compensation Act and that the employee was an insured employee under the provisions of said Act. All premiums from said employer to the North Dakota Workmen's Compensation fund having been paid.'

From the facts found the court drew conclusions of law that the injury sustained by the claimant was an injury arising in the course of employment; that she was entitled to compensation as provided by the Workmen's Compensation Law and that the order entered by the Workmen's Compensation Bureau should be reversed and compensation awarded to the claimant for the injuries sustained by her. The Workmen's Compensation Bureau has appealed to this court from the judgment of the District Court and demanded a review of the entire case in this Court.

In our opinion the determination of the District Court is clearly correct and the judgment appealed from must be affirmed.

The North Dakota Workmen's Compensation Law provides:

'8. 'Injury' shall mean only an injury arising in the course of employment including an injury caused by the willful act of a third person directed against an employee because of his employment, but such terms shall not include an injury caused by the employee's willful intention to injure himself or to injure another, nor any injury caused by the voluntary intoxication of the employee. Such term, in addition to an injury by accident, shall include:

'a. Any disease which can be fairly traceable to the employment. * * *' NDRC 1943, 65-0102(8).

It is undisputed that at the time of the injury the claimant was an employee of the Rex Cafe, that she was on the premises where her services were to be...