Southland Corp. v. Hester, 5--6153

• Decision Date: 12 February 1973
• Docket Number: No. 5--6153,5--6153
• Citation: Southland Corp. v. Hester, 490 S.W.2d 132, 253 Ark. 959 (Ark. 1973)
• Parties: SOUTHLAND CORPORATION and Travelers Insurance Company, Appellants, v. Gerta L. HESTER et al., Appellees.
• Court: Arkansas Supreme Court

Page 132

490 S.W.2d 132

253 Ark. 959

SOUTHLAND CORPORATION and Travelers Insurance Company, Appellants, v. Gerta L. HESTER et al., Appellees.

No. 5--6153.

Supreme Court of Arkansas.

Feb. 12, 1973.

Terral, Rawlings, Matthews, by Paul C. Rawlings, Little Rock, for appellants.

Raff, Asher & Galloway, by Gerald E. Asher, Helena, for appellees.

GEORGE ROSE SMITH, Justice.

This is a claim for death benefits under the workmen's compensation law. The pivotal question is whether the employee's death, assuming it to have been accidental rather than self-inflicted, arose 'out of' his employment. The commission's two-to-one decision allowing the claim was affirmed by the circuit court.

The facts, stated most favorably to the appellees, are these: Buford Hester, the decedent, was employed by Southland Corporation, which was a distributor of milk and milk products. The record does not tell us much about Hester's duties as an employee, except that for an unspecified period of time before his death he had been traveling with newly employed route salesmen, showing them the territory that they were to cover.

On April 12, 1969, Hester was to travel over a new route with Bland Williamson. The two men agreed to meet at Southland's office at 7:00 a.m. When Williamson reached the office he discovered that Hester was dead. The decedent was sitting in a chair in front of his desk. He had been shot by his own .22 caliber rifle. The butt of the rifle was propped against a surface-mounted electrical outlet on the floor. The barrel of the weapon was pointed toward the decedent's chest, in the vicinity of his heart. Powder burns indicated that the gun had been pressed against Hester's chest when the fatal shot was fired.

Almost all the claimants' witnesses testified only to facts rebutting the inference of suicide. To that end it was convincingly shown that Hester had no known motive for taking his own life and that he was not familiar with firearms. We do not set out that testimony, because we do not rest our decision upon the view that Hester's death was not accidental. Instead, we are concerned with the existence of a causal connection between Hester's employment and his death. Upon that issue the main testimony is that of Hester's widow, whose evidence is to this effect:

Hester owned the rifle. About four months before his death he asked his wife where the gun was. Mrs. Hester told him that she had put it in a bedroom closet that was used for storage. 'I asked him why, and he said that, well, there had been quite a few rough-looking youths coming in and applying for jobs, and he said somehow or another I have a feeling that they are not looking for jobs, because their eyes rove around over the office area, and there would be at times money that Miss Holland would have from the routemen laid out there, and he was quite concerned about that, and he had warned them.' Mrs. Hester had no idea when her husband took the rifle to the Southland office. No one testified to having seen the weapon at the office before Hester's death. A filling station attendant in the neighborhood testified that he was Hester enter the Southland building on the morning of his death and that Hester was not then carrying a rifle. There is no proof that Hester's duties as a Southland employee involved any responsibility for the handling or safekeeping of money belonging to the company. No funds were kept at the office overnight, but routemen did bring in collections during the day.

The applicable principles of law are fairly well settled. An accident arises 'out of' the employment when there is a casual connection between the two; that is, when the accident results from a risk reasonably incident to the employment. Owens v. Southeast Ark. Transp. Co., 216 Ark. 950, 228 S.W.2d 646 (1950). With respect to injuries resulting from the accidental discharge of firearms, Schneider fairly summarizes the cases:

'Injuries to workmen from the...