*1 192 BAGWELL, BAGWELL, Widow Rodger
Grace CORPORATION, Employee Deceased FALCON JET COMPANY, and TRAVELERS INSURANCE Employer, Carrier CA 83-3 of Arkansas Appeals
Court May delivered Opinion Wallace, Hilburn, Forster, P.A., Calhoon & Clayton, Purvis, H. by: Joseph appellant.
Michael E. Ryburn, appellees.
George Cracraft, K. Grace widow of Judge. Bagwell, deceased, Rodger Bagwell, from the decision of appeals Arkansas Workers’ Compensation Commission her denying benefits for the death of her husband who was abducted on a lot to his belonging and employer subsequently murdered his by abductor. We conclude from our review of the record that the Commission the decision misinterpreted of Foster d/b/a Chain Store Big Liquor 894, 576 S. and that as a this (1979), W.2d 187 result of error it did not make findings fact on issues. The pertinent cause must be remanded for further of fact essential to findings decision this case.
An of our decision understanding a reference requires to the evidence contained in the record. In so we are doing fully that it cognizant is within the province to make of fact and we do not findings reference to the by evidence intend to assume that role here. On remand of this case it will be the function of the Commission to translate the evidence presented them into of fact. findings to
According the record was employed Falcon their Corporation plant at located on the east Jet side of Little Rock near Adams Field. There was evidence lay that it within a crime area. worked for high Bagwell until Falcon had a second midnight job and delivering Jet Gazette at 12:30a.m. The Falcon beginning Jet and its area surrounded in plant part by was chain fence with link monitored only vehicle entrace 10,1978 On the security provisions. night August Rodger off work Bagwell got left the and walked midnight, plant with a fellow into a lot employee adjacent They talked awhile and then own plant. Bagwell went car. When the other he left saw Bagwell slumped forward the seat of his he car but assumed that something security guard so he did not The dropped stop. that he did not testified know Mr. and Bagwell although he could not state leaving plant observed the car to his second it. did not report was Bagwell driving Bagwell found next day police home that The night. or return job in front from the away plant parked car two blocks Bagwell’s loose door had a right assailant’s house. of his confessed been broken into. marks as it had though and gasket pry buried body in the day they Bagwell’s Later was evidence plant. near the Falcon There grave shallow missing were that his wallet and masonic indicating ring from was and were later recovered body when the discovered had been There evidence that the assailant his assailant. argued the state and had hospital committed to formerly day shot at some of them the members family before the crime. *3 of the officers two versions
The assailant gave police He first told them that had stopped Bagwell’s abduction. him him two or by hitting Tenth Street and had killed car on body by times with a tire tool and had disposed three his second him into the Arkansas River. throwing a stop sign he stated that had Bagwell stopped confession him with Twelfth and Bond and that he had hit on Streets tool and him a 410 shotgun. the tire shot however, evidence, the locations were There was the route and the officer ordinarily by Bagwell not on taken had not occurred as assailant abduction opined lot described but had been initiated had seat of the assailant himself in the back where had concealed had car. There was evidence that assailant Bagwell’s or at other any never been Falcon employed by did not they and that Bagwell where been employed each other. know in which the there was that the area testimony
While area there crime is located was considered a high plant thefts or acts was evidence that there had been previous violence on the as an
There was evidence worked Bagwell at the time did not handle company money, upholsterer, nothing possession belonging of his assault had in his Falcon Jet. only
On this evidence the made two findings of fact:
FINDINGS OF FACT resulting Rodger Bagwell’s 1. That the assault origin death either occurred or had its on the em- ployer’s parking lot. That view of
2. the decision in Foster (1-22-79), 264 failed to claimant has S.W.2d 187 prove by preponderance evidence that the death of under Arkansas Workers’ law.
In its conclusions the Commission stated that in prior decisions, the court had chosen not to most of which were cited in the comment dissenting opinion of Chief Harris. It further stated: Justice concluding after
Even assault occurred on the respondent employer, lot of it would be contrary to the Foster decision to make a compensability in the instant claim.
Thus, before, as noted even if we were to assume that the assault of in took the parking Corporation, finding lot of Falcon of compensability would still seem inconsistent with the majority decision in Foster.
Though our decision here have been different decision, in the absence of the ignore we are unable to Foster appears reversal, Foster, what to be a clear in prior case law.
Although the or had its that the assault occurred origin supported lot is substantial evidence, prior Foster overruled we do not that agree no that that under the or it holds decisions of court can assault which occurs on circumstances be compensable. owned the employer facilities Wil- essentially undisputed. in were The facts in Little store liquor liam was a clerk for night Johnson owned across Foster. Foster by Wayne property Rock owned to employees park the from the He his requested street store. but leave only it not watched would there because the customers. All of area front of the store for locked lot. One night that employees parked Johnson his car across the street to at and walked midnight store hiding Foster’s lot. Two men young which was parked to the door open behind his car stood as started up and his shot him twice. The assault was “unexplained identified.” There was evidence assailants were never or he had to rob assets any attempt Johnson his facts in the time. On these possession employer said: Foster the Commission concluded, to contrary,
It must be without evidence this assault was related in some nature to and therefore to be claimant’s employment compensable. (Emphasis supplied) the Supreme decision Court said: reversing In this case cannot find substantial evidence we that, . . with- Commission’s conclusion ‘. support this assault was related contrary,... out evidence to the in some nature to the claimant’s employment.’ prove
It was the claimant duty the course of his only during employ arose ment but also Ark. Stat. employment. arose out his is, That 1976). injury grew Ann. 81-1305 (Repl. § of, Pekin out or resulted from Duke v. Co., Products Wood 264 S.W.2d *5 record There evidence in this is substantial (1954). with the any connection proves injury connected with the assault was employment. John- If be son’s such a must assumed. The employment fact occurred and is no incident off there premises, evidence that it was connected em- with Johnson’s If either in- robbery as an ployment. intended, dividual or as an is no employee, there of it. been evidence The motive could revenge have all record Any shows. such conclusions must be assumed because are not they by substantial supported evidence. The unexplained simply assault remains and unconnected with employment. (Emphasis Johnson’s supplied) Foster holds no more than the fact that an assault mere occurs an lot or in close employer’s parking not, does proximity employment standing alone, establish causal which cannot be connection supplied There by speculation. must be affirmative proof risk employment distinctive as the of the injury. cause
Nor can we agree that Foster is at with prior variance case law dealing injuries on lots or other to the exceptions and None of cases going coming rule. those dispense with the requirement that there must be a causal connection between the or injury and the employment employment risk. This is Davis stated in quite clearly Co., Chemical Const. (1960) S.W.2d which was a landmark case this area. There the court the award affirming of benefits said with regard to parking areas:
We think the be injury to for the falls compensable, case within the premises exception to the and coming going ... rule. By this of the and qualification coming rule it is going that an recognized entitled to a reasonable to leave employer’s time premises suffered within interval arise out and in the course has often been in cases principle applied involving lot maintained are by the cases employer; Schneider on collected Workmen’s (Permanent Ed.) 1719. §
198 Specialties et al v. with Westark is Foster at variance
Nor
(1976)
Lindsey,
351, 532
involved
which
S.
Ark.
W.2d 757
259
There,
injury resulting
from
on
an assault
Paneling
818,
quoting
Butler,
Ark.
v.
from Townsend
247
(1969), the court stated:
Reversedand remanded. J., concurs.
Cooper, J., not participating. Corbin, agree Judge, concurring. R. IWhile Cooper, James case, this I feel with the decision to compelled and remand reverse my points express opinion raised some majority. The case at bar is controlled d/b/a/ Big Liquor 894, 576 Chain Store (1979). Supreme Court, Foster, specifically off held the assault on Foster took premises. appears Supreme Therefore, business it injuries Court decided Foster on the did not basis bar, “arise out of” Foster’s the case specifically the assault *7 originated deceased employer’s parking either occurred or “arising require Thus, out of” However, Commission, ment of the statute is satisfied. apparently believing that Foster also dealt “in the with the requirement, reaching course of” denied benefits without actually issue, i.e., the ultimate whether the assault occurred Bagwell’s employment. “in the course of” Specialties Lindsey, 351, 532 Westark (1976), my which, great view, is case a has deal of 757 bearing Lindsey,
on the caseat bar. In was the worker seated employer’s apparently parking lot, in a vehicle endorsing paycheck. employees, Two fellow located away got argument vehicle, some distance from his into discharged and one of the co-workers The bullet firearm. Lindsey. struck Lindsey’sinjury essentially neutral, i.e.,
The risk of personal related not to his work and related matters. justification Therefore, I can find no that his Supreme accident was unless adopt “positional Court intended to Professor Larson’s satisfying provides risk” doctrine. This doctrine a method of requirement the “in the of” course where the source injury unexplained. By unexplained, I mean there is no evidence before Commission as to whether the employee’s work, “in the of” arose course or whether it purely personal pursuits. “in arose of” For course general “positional doctrine, discussion risk” see — Larson, Workmen’s Law §§ 10.00 10.22.