Louie v. Gardens

• Decision Date: 16 October 1947
• Docket Number: 7350
• Citation: 67 Idaho 469,185 P.2d 712
• Parties: LOUIE v. BAMBOO GARDENS et al
• Court: Idaho Supreme Court

185 P.2d 712

67 Idaho 469

LOUIE v. BAMBOO GARDENS et al

No. 7350

Supreme Court of Idaho

October 16, 1947

Appeal from Industrial Accident Board.

Order denying compensation vacated and set aside with direction to enter award in favor of claimant.

E. B Smith, of Boise, for appellant.

There being no question as to the accident arising "in the course of" employment, the sole question to determine is whether it arose "out of" employment. Hartford Accident & Indemnity Co. v. Hoage, 1936, 66 App.D.C 160, 85 F.2d 417; Aetna Life Ins. Co. v. Industrial Commission, 1927, 81 Colo. 233, 254 P. 995; London Guarantee & Accident Co. v. McCoy, 1935, 97 Colo. 13, 45 P.2d 900.

An accident arises "out of" the employment if it ensues from a risk reasonably incident thereto. A risk is incidental to the employment when it belongs to or is connected with what the workman has to do in fulfilling his contract of service. Such a risk may be either an ordinary one, directly connected with the employment, or one extraordinary in character, indirectly connected therewith because of its special nature. Geltman v. Reliable Linen & Supply Co., 1942, 128 N.J.L. 443, 25 A.2d 894, 139 A.L.R. 1465; Frigidaire Corporation v. Industrial Accident Commission, 1929, 103 Cal.App. 27, 283 P. 974; Hartford Accident & Indemnity Co. v. Cardillo, 1940, 72 App.D.C. 52, 112 F.2d 11.

The requirement of "out of" employment is met when one in course of employment is reasonably required to be at a particular place at a particular time and there meets with an accident, although one which any other person then and there present would have met with irrespective of such employment.

The requirement is met even though there "lurked unanticipated, a mortal danger, an impending accident, i. e an insane man, with a deadly weapon accessible, about to be driven by a sudden delusion into a murderous assault upon any one there present." London Guarantee & Accident Co. v. McCoy, 97 Colo. 13, 45 P.2d 900; Aetna Life Insurance Co. v. Industrial Commission, 81 Colo. 233, 254 P. 995; Hartford Accident & Indemnity Co. v. Hoage, 66 App.D.C. 160, 85 F.2d 417.

Walter Oros and Glenn A. Coughlin, both of Boise, for respondent.

An accidental injury to be compensable must arise out of and in the course of the employment, and both elements must be present at the time of the injury. I.C.A. § 43-1001; Parkison v. Anaconda Copper Mining Co., 56 Idaho 610, 57 P.2d 1216; Perdue v. Brittingham, Md., 47 A.2d 491; Chicago Hardware Foundry Co. v. Industrial Commission, 393 Ill. 294, 65 N.E.2d 778.

There must be a causal connection between the conditions existing on employer's premises and the injury to the employee to constitute a compensable injury, and the accident must have had its origin in some risk connected with or incidental to the employment. I.C.A. § 43-1001; Walker v. Hyde, 43 Idaho 625, 253 P. 1104; Wells v. Robinson Construction Co., 52 Idaho 562, 16 P.2d 1059; Chicago Hardware Foundry Co. v. Ind. Comm., 393 Ill. 294, 65 N.E.2d 778.

Generally injuries to or death of an employee sustained as the result of an assault upon him having no connection with the employment are not compensable even though the employee was at the time performing duties in the course of his employment. Chicago Hardware Foundry Co. v. Ind. Comm., 393 Ill. 294, 65 N.E.2d 778; Stanolind Pipe Line Co. v. Davis, 173 Okl. 190, 47 P.2d 163; Farmers Gin Co. v. Cooper, 147 Okl. 29, 294 P. 108.

Miller, Justice. Givens, Holden, and Hyatt, JJ., concur. Budge, Chief Justice, concurring specially.

OPINION

Miller, Justice.

This case was submitted to the Industrial Accident Board on a stipulation of the facts as agreed to between the parties, and from which, among other things, it is made to appear:

That Tom Louie, claimant and appellant, about 45 years of age, on the 18th day of October, 1946, and for more than three months prior thereto, was in the employ of the Bamboo Gardens, a restaurant in Boise, Idaho, as a dishwasher therein; that he was casually acquainted with one Fook Lee Hong, another Chinaman, but that said Hong was not a patron of the Bamboo Gardens, nor a customer thereof in that he had never taken his meals thereat and was in nowise interested therein. September 21, 1946, Fook Lee Hong and three other Chinese were arrested on a narcotic charge by officials of the United States; that during the latter part of September 1946, Hong was fined $ 50 by the U. S. District Judge, at Boise, Idaho, on account of his plea to said charge and thereupon discharged from further custody. Hong was a discharged veteran of World War II. After his discharge for the violation of the Narcotic Act, 26 U.S.C.A. Int.Rev.Code, §§ 2550 et seq., 3220 et seq., he seems to have labored under the delusion that it was thought that he had turned "State's evidence," and that someone was going to kill him. After his said discharge and prior to October 18, 1946, he stated to an Assistant United States District Attorney that members of a tong society to which Tom Louie belonged, and to which Hong did not belong were going to import "hatchet men" from Walla Walla, Washington to Boise, Idaho to kill him because members of such tong thought he had turned State's evidence against his former companions on the narcotic charge; that for several days before October 18, 1946, he was more or less in hiding at the American Legion Building in Boise, Idaho, asserting that someone was going to kill him. The Prosecuting Attorney of Ada County, Idaho, made an investigation and found there were no reasonable grounds for his suspicions that someone was going to kill him, but in his own mind he suffered the delusion that an attempt would be made upon his life.

October 18, 1946, at about 5:45 P.M., Tom Louie, claimant and appellant, received an injury, during his regular hours, and in the course of his employment, and while he was on duty performing the tasks for which he was employed at his employer's place of business, at 107 South 7th Street, Boise, Idaho, in that while taking water glasses from the kitchen to the serving table in the dining room, Fook Lee Hong entered the restaurant by the front door on 7th Street, carrying a loaded 38 caliber revolver, which he brandished in a threatening manner, and then shot the same within the restaurant three times, one of which shots struck Tom Louie, claimant and appellant, in the upper back region, piercing his chest cavity and his lungs. The employer was notified of such accident and injury sustained by said claimant and appellant, during the evening of October 18, 1946, and that a claim in writing, stating the name and address of the employer, the time, place, nature and cause of the injury, signed by claimant and appellant, was filed with the Industrial Accident Board on October 30, 1946; that as the result of the injury sustained, claimant and appellant was hospitalized at St. Luke's Hospital at Boise, Idaho, for a period commencing the evening of October 18, 1946, and until and including November 9, 1946, and that the hospital and medical charges in the sum of $ 475.55 were paid by claimant and appellant; that claimant and appellant was under medical care at the time of filing the stipulation of facts with the Industrial Accident Board and that at the time he was totally disabled for work and would continue to be so totally disabled for a period of time subsequently to be determined; that he was not then surgically healed and whether or not he will sustain a permanent injury is yet to be determined as well as the degree thereof, if permanent injury results therefrom.

On or about October 21, 1946, a criminal complaint was filed against Fook Lee Hong by the Prosecuting Attorney of Boise, Idaho, and on October 31, 1946, Hong was held by the Committing Magistrate to answer to the District Court for the crime of assaulting Tom Louie with a deadly weapon with intent to commit murder. An information was filed in said District Court, November 1, 1946, charging Hong with an assault to commit murder. A plea was interposed under I.C.A. Sec. 19-3202, that Fook Lee Hong was insane. The issue was tried to a jury, which returned a verdict of insanity and which was duly filed and entered in said District Court on November 18, 1946. November 20, 1946, the said District Court made and entered its commitment, committing Hong to the State Hospital South at Blackfoot, Idaho, by virtue of his having been found insane as aforesaid.

The Industrial Accident Board considered the stipulated facts and on January 6, 1947, made and entered its findings of fact, rules of law and order dismissing appellant's claim. The findings of fact follow very closely the stipulation. Finding No. 7, among other things, recites as follows: "The sole issue presented is one of law. It is conceded that the accidental injury to claimant Tom Louie arose in the course of his employment by the Bamboo Gardens. The precise issue is whether said accidental injury arose out of such employment." There is no dispute as to the facts.

Paragraph 1 of the Rulings of Law states:

"The claimant has failed by a preponderance of the evidence to show that his accidental injury arose out of his employment."

Paragraph 2 recites:

"So far as the stipulated facts reveal a cause for the maniacal attack of Fook Lee Hong upon the claimant, they show that it was because the claimant was a member of a tong, which Fook Lee Hong in his delusion believed was going to import 'hatchet men' to kill him. There is no evidence that the assault resulting in claimant's injury was connected even remotely with claimant's employment by the Bamboo Gardens, or that the assailant's presence at the Bamboo Gardens was in any wise connected with the business there conducted."

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