Mayo v. Safeway Stores, Inc.

• Citation: 457 P.2d 400,93 Idaho 161
• Decision Date: 18 July 1969
• Docket Number: 10308,Nos. 10307,s. 10307
• Parties: Jean Marie MAYO, Claimant-Respondent, v. SAFEWAY STORES, INC., and State Insurance Fund, Defendants-Appellants. Jean Marie MAYO, Claimant-Appellant, v. SAFEWAY STORES, INC., and State Insurance Fund, Defendants-Respondents.
• Court: United States State Supreme Court of Idaho

Page 400

457 P.2d 400

93 Idaho 161

Jean Marie MAYO, Claimant-Respondent, v. SAFEWAY STORES, INC., and State Insurance Fund, Defendants-Appellants.

Jean Marie MAYO, Claimant-Appellant, v. SAFEWAY STORES, INC., and State Insurance Fund, Defendants-Respondents.

Nos. 10307, 10308.

Supreme Court of Idaho.

July 18, 1969.

Rehearing Denied Aug. 18, 1969.

Coughlan, Imhoff, Christensen & Lynch, Boise, for employer and surety.

Thomas A. Mitchell, Coeur d'Alene, for claimant-respondent.

McFADDEN, Chief Justice.

By order of the court these two appeals were submitted on the same tracript, and were argued before the court at the same time.

No. 10307

Issues presented by the appeal of the employer, Safeway Stores, Inc., and its surety, State Insurance Fund, will first be discussed.

Mr. Robert C. Mayo, an employee and manager of the Safeway store in Bonners Ferry, Idaho, on October 11, 1967 at about 10:30 a. m. was discovered dead, lying in a pool of blood in the walk-in freezer of the store. His death had been caused by blows on his head from a hammer, the property of the employer. Earlier that morning, Mr. Mayo had been seen by two employees at about 8:00 a. m. Mr. Mayo let one of the employees into the store, and also directed the activities of the other employee. A Mr. Schuon, an assistant manager of the store was also observed in the store about that time by the employees, and by a patron who discussed a matter of business with him while he was engaged in washing some mops in a sink.

At about 8:10 a. m. Mr. Schuon was observed leaving the store. His body was found later that afternoon near his home outside the City of Bonners Ferry.

A coroner's inquest was held to inquire into the death of Mr. Mayo and also the death of Mr. Schuon. The coroner's jury found that Mr. Schuon had committed suicide. The jury, inquiring into Mr. Mayo's death, determined his death was the result of a series of blows to the head, caused by the criminal acts of another, and that the person 'probably causing the death was James Schuon.'

Mrs. Mayo, the widow of the employee, filed her claim for death benefits, which claim was denied by the employer and surety. A hearing was held before one member of the Industrial Accident Board. Based on this record the full board awarded death benefits and attorney's fees to the claimant, Mrs. Mayo. It is from this award that the employer and surety appeal.

Testimony of various witnesses was presented to the board, as well as the transcript of proceedings and findings of the coroner's jury empanelled to inquire into the deaths of Mr. Mayo and Mr. Schuon.

The board found that Mr. Mayo was killed at about 8:00 a. m. on October 11, 1967, while at work, by criminal means as a result of blows to his head by a hammer, inflicted by the assistant manager Schuon. The board also found that the motives or reasons for the infliction of the hammer blows by Schuon were unexplainable in that no personal or social or work connected difficulties were known to have occurred or existed between the two men. Based on the findings, the board held that the death was caused by an accident arising out of and in the course of Mayo's employment and awarded death benefits to his widow. Following another hearing the award was confirmed and $1,000 attorney's fees were awarded claimant.

The findings by the board are supported by substantial competent evidence and thus will not be disturbed on appeal. Woodall v. Idaho Potato Processors, Inc., 91 Idaho 626, 428 P.2d 943 (1967); Davis v. Schmidt Bros., Inc., 92 Idaho 312, 442 P.2d 448 (1968); McBride v. J. R. Simplot Co., 92 Idaho 274, 441 P.2d 723 (1968).

The employer and surety contend that there is no basis upon which to award death benefits in this case, asserting that there is nothing to establish that the assault upon Mr. Mayo occurred 'in the course of' his employment, or that it 'arose out of' the employment, and that the award should be reversed. I.C. § 72-201 requires that for an injury to an employee (from which death results) to be compensable, it must be 'caused by an accident arising out of and in the course of any employment * * *.' This court has held that an 'accident' occurs 'in the course of' employment when it occurs at the time and place where the employee is performing his tasks. Louie v. Bamboo Gardens, 67 Idaho 469, 185 P.2d 712 (1947). See also Kiger v. Idaho Corp., 85 Idaho 424, 380 P.2d 208 (1963); Ensley v. Grace, 76 N.M. 691, 417 P.2d 885 (1966).

The record discloses that the assault took place on the employer's premises, during the normal working hours, and that a tool of the employer was involved. There is no evidence however as to whether Mr. Mayo was performing his assigned tasks or was in furtherance of his employer's business at the time.

Cases of this nature involving assaults upon employees have arisen in a number of other jurisdictions, resulting in diverse results. Larson in his work on Workmen's Compensation (1 Larson, Workmen's Compensation Law, § 11.31, p. 184 (1968)) has analyzed these cases, and divides the assault cases into three classificatioins. First there are those assaults which are inherently related to the employment, such as assaults arising out of work disputes, and which generally result in award of compensation. Second, there are those assaults which are inherently personal or private in origin, which assaults arise from disputes imported by the employee from outside the sphere of employment, the only connection with the employment being the location at which the assault occurs. This class of assaults is generally considered as being noncompensable. The third classification by Larson is the 'neutral' assaults, wherein the cause of the assault can neither be assigned to the employment nor to the personal disputes with the employee. Neutral assaults include assaults by lunatics and completely unexplained assaults. In dealing with this last classification of assaults the cases are in great conflict. Larson in his analysis of the cases states:

'The majority of jurisdictions are inclined to regard the neutral category as noncompensable, for want of affirmative proof of distinctive employment risk as the cause of the harm; but a growing minority, applying the positional or butfor test, make awards for such injuries when sustained in the course of employment.' 1 Larsoln, Workmen's Compensation Law § 11.31, p. 184.

The appellants, citing a large number of cases from other jurisdictions, contend that unexplained assaults are not compensable for the reason that there is no affirmative proof of a causal connection between the assault and the employment. See Rocky Mountain Fuel Co. v. Kruzic, 94 Colo. 398, 30 P.2d 868 (1934); Francis v. Liberty Mutual Ins. Co., 95 Ga.App. 225, 97 S.E.2d 553 (1957); Stapleton v. Fork Junction Coal Co., 247 S.W.2d 372 (Ky.App. 1952); Hopson v. Hungerford Coal Co., 187 Va. 299, 46 S.E.2d 392 (1943); American Brake Shoe Co. v. Industrial Commission, 20 Ill.2d 132, 169 N.E.2d 256 (1960).

Idaho has followed the growing minority of states that have adopted the positional risk rule, which awards compensation for injuries resulting from accidents which are of neutral origin in the sense that their origin is neither ocupational nor personal. See 1 Larson, Workmen's Compensation Law, § 7.30, pp. 49-50. The case in which this position was first adopted is Louie v. Bamboo Gardens, 67 Idaho 469, 185 P.2d 712 (1947), in which the claimant while at work was shot by an insane man suffering from a delusion that the claimant was a member of a group conspiring to kill him. The assault, as is generally the case with assaults by lunatics, was neutral in the sense that it was not causally connected to the employment or to the claimant personally. This court awarded compensation for the reason that

'It was his employment that placed him in the position and environment wherein he was assaulted and sustained the accidental injury. * * * There is nothing to show that the brandshing of the pistol and the firing thereof was a deliberate intention to injure apellant. The intention of the assailant from the record may have been limited to 'shooting up the place,' and that it was a random shot that struck appellant.' 67 Idaho at 483, 185 P.2d at 720.

The rule in Louie v. Bamboo Gardens, supra, was solidifieed in Foust v. Birds Eye Division of General Foods Corp., 91 Idaho 418, 422 P.2d 616 (1967), which, although it was not a neutral risk case, held that when an injury occurs on the employer's premises, a presumption arises that the injury arose out of and in the course of employment. Foust v. Birds Eye, supra, and Louie v. Bamboo Gardens, supra, make it clear that Idaho has adopted the positional risk rule under which when a death or injury resulting from a completely unexplained assault occurs on the employer's premises, and in the course of employment, a rebuttable presumption arises that the injury arose out of the employment and is compensable. The rationale for this rule is that when the cause of the injury can be attributed to neither an occupational nor personal origin, and is thus neutral, there is no more reason to assign the resulting loss to the employee than to the employer. Under such circumstances the scales are evenly balanced, and all that is needed to tip them in favor of compensability under the positional risk doctrine is that the employment brought the employee to the place of injury. See 1 Larson, Workmen's Compensation Law, § 12.14, pp. 192.15-192.16.

Several other jurisdictions have also followed the positional risk test in cases surprisingly similar to the case at bar. See Ensley v. Grace, 76 N.M. 691, 417 P.2d 885 (1966); McLean's Case, 323 Mass. 35, 80 N.E.2d 40 (1948); Valenti v. Valenti, 28 A.D.2d 572, 279 N.Y.S.2d 474 (1967); Travelers Ins. Co. v. Cardillo, 78 U.S.App.D.C. 255, 140 F.2d 10 (1943); Casualty Reciprocal Exchange v. Johnson, 148 F.2d 228 (5th Cir. 1945). And see Ondon Guar. &...