Robbins v. Nicholson, 58

Decision Date10 May 1972
Docket NumberNo. 58,58
CourtNorth Carolina Supreme Court
PartiesClydene W. ROBBINS, widow, et al., Employee, Plaintiff, v. O. T. NICHOLSON, Employer, Casualty Reciprocal Exchange, Carrier, Defendants.

J. Lee Wilson and Ned A. Beeker, Lexington, for claimants Lewis.

Kennedy, Covington, Lobdell & Hickman by Edgar Love, III, Charlotte, for defendant appellants.

SHARP, Justice:

Under the Workmen's Compensation Act a compensable death is one which results to an employee from an injury by accident Arising out of and In the course of his employment. G.S. § 97--2(6) (1965); Cole v. Guilford County, 259 N.C. 724, 131 S.E.2d 308 (1963). The two italicized phrases are not synonymous; they 'involve two ideas and impose a double condition, both of which must be satisfied in order to bring a case within the Act.' Sweatt v. Board of Education, 237 N.C. 653, 657, 75 S.E.2d 738, 742 (1953).

This appeal presents only the question whether the deaths of Terri and Robbins resulted from injuries by accident Arising out of their employment at Nicholson's grocery. The parties have stipulated that the deaths were accidents and, clearly, they occurred in the course of their employment.

Although an assault is an intentional act, it may be an accident within the meaning of the Compensation Act when it is unexpected and without design on the part of the employee who suffers from it. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668 (1949). The words 'in the course of the employment' as used in this Act, refer to the time, place and circumstances under which an accidental injury occurs; the phrase 'arising out of the employment' refers to the origin or cause of the accidental injury. Clark v. Burton Lines, 272 N.C. 433, 158 S.E.2d 569 (1967); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963); Withers v. Black, Supra. Terri and Robbins were unexpectedly shot and killed by Lewis during working hours while performing their duties as employees on the premises of their employer, where their employment required them to be. Thus, their deaths were the result of injury by accident arising during the course of their employment.

An accident occurring during the course of an employment, however, does not Ipso facto arise out of it. The term 'arising out of the employment' is not susceptible of any all-inclusive definition, but it is generally said that an injury arises out of the employment 'when it is a natural and probable consequence or incident of the employment and a natural result of one of its risks, so that there is some causal relation between the injury and the performance of some service of the employment.' Perry v. Bakeries Co., 262 N.C. 272, 274, 136 S.E.2d 643, 645 (1964). In other words, to be compensable, '(t)he injury must spring from the employment or have its origin therein.' Bolling v. Belk-White Co., 228 N.C. 749, 750, 46 S.E.2d 838, 839 (1948). 'The injury must come from a risk which might have been contemplated by a reasonable person as incidental to the service when he entered the employment. It may be said to be incidental to the employment when it is either an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the service owing to the special nature of the employment.' Lockey v. Cohen, Goldman & Co., 213 N.C. 356, 359, 196 S.E. 342, 344--345 (1938).

In Harden v. Furniture Co., 199 N.C. 733, 155 S.E. 728 (1930), one employee killed another, but the 'motive which inspired the assault was unrelated to the employment of the deceased and was likely to assert itself at any time and in any place.' Id. at 736, 155 S.E. at 730. In denying compensation this Court quoted with approval the following exposition by the Supreme Judicial Court of Massachusetts: 'It (the injury) 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. . . . But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence. " Id. at 735, 155 S.E. at 729--730. Accord, Guest v. Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596 (1954); Bryan v. T. A .Loving Co., 222 N.C. 724, 24 S.E.2d 751 (1943).

A fortiori, when the moving clause of an assault upon an employee by a third person is personal, or the circumstances surrounding the assault furnish no basis for a reasonable inference that the nature of the employment created the risk of such an attack, the injury is not compensable. This is true even though the employee was engaged in the performance of his duties at the time, for even though the employment may have provided a convenient opportunity for the attack it was not the cause. Ellis v. Rose Oil Company of Dixie, 190 So.2d 450 (Miss.1960); 6 Schneider, Workmen's Compensation Text, § 1561(a) (1948); 99 C.J.S. Workmen's Compensation § 227 (1958); 58 Am.Jur. Workmen's Compensation § 265 (1948); Annots., 112 A.L.R. 1258; 40 A.L.R. 1122; 29 A.L.R. 437; 15 A.L.R. 588.

In Duerock v. Acarregui, 87 Idaho 24, 390 P.2d 55 (1964), the claimant was the manager of a motel. Her employment made her subject to call at any time. She lived with her husband in an apartment connected with the motel. Her husband, who had become unable to hold a job because of his alcoholism, resented the fact that his wife was the primary breadwinner. He had repeatedly demanded that she quit her employment. One evening, while she was preparing their supper, he repeated this demand. She told him that until he found and kept a job she could not give up hers, and that she did not want to discuss the matter further. Thereupon, he shot her and himself. In consequence she was paralyzed, and he died. In sustaining the Board's denial of compensation, the Supreme Court of Idaho held that although claimant's injury resulted from an accident occurring in the course of her employment, it did not arise out of it; that her injuries were not the result of an industrial, but of a domestic hazard. 'The risk existed before her employment. It was a personal risk she brought with her, a part of her domestic and private life. ...

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