This is а workmen’s compensation case in which the trial court ordered the payment of benefits for the death of Santa Emily Marin, an employee of Sigmor Shamrock Services Stations, who was raped and murdered in the darkness of the early morning hours of Sunday, September 14, 1969, as she was in the process of performing her duty as an employee to open her employer’s service station for business. The judgment ordering payment of compensation to her surviving husband, Raul Marin, Jr., the appellee here, was based on a jury finding that she died as the result of injuries received in the course of her employment.
The appellant’s compensation insurance carrier, Commercial Standаrd Insurance Company, referred to in this opinion as “Commercial”, assails, by way of no evidence and insufficient evidence points, the finding that Mrs. Marin was injured in the course of her employment. The other appellants, Silvestre Casares and wife, Juanita Casares, surviving parents of the deceased employee, while expressing no dissatisfaction with the “course of employ *863 ment” finding, contend that they should be the recipients of the compensation payments because appellee, the surviving husband, had abandoned the deceased employee and refused to support her.
On the day of her death, Mrs. Marin’s duties required that she open the service station for business at 7:00 а. m. She arrived at the station prior to 7:00 a. m. and parked her car at the place where she normally parked it on her employer’s premises. It is undisputed that she was raped and murdered, before she opened the station for business, by Esteban Mendoza, who was employed at a junkyard adjacent to the filling station premises, and who later pleaded guilty to a charge of murder.
The only evidence concerning the manner in which Mrs. Marin met her death is found in the deposition of the killer and in his confession. Mendoza’s accounts of the murder are inconsistent. There is evidence which would support a finding that Mrs. Marin and Mendoza had known each other in the past and had engaged in sexual relations; that on the day of the homicide she had willingly accompanied him to the junkyard, where they had previously made love; and that he killed her because he became enraged when she spurned his offer of marriage and announced that she was going to marry someone else, although at the time she was married to appellee. However, it is clear that the jury refused to accept this version of the killing.
The finding that Mrs. Marin was killed in the course of her employment clearly points to the fact that the jury drew the following conclusions, all of which find support in the evidence: After drinking tequila and beer, and taking “pills” for about 20 straight hours, Mendoza returned to the junkyard during the early morning hours of Sunday, September 14, 1969, where he continued drinking beer, which he had brought with him. At about 6:00 a. m., while it was still dark (Daylight-Saving Time was in effect), he noticed that the lights had gone on at the service station. He saw Mrs. Marin, whom he had observed coming to work in the early morning hours on previous occasions, alight from her car and begin walking toward the service station office. He went on the service station premises, grabbed Mrs. Marin from behind and, holding one hand over her mouth, dragged her to the rear of the junkyard where, overcoming her resistance, he forcibly had intercourse with her. Then, fearing that she would report the incident, he strangled her to death with a belt.
In Mendoza’s confession, which was introduced into evidence by Commercial, there is no hint of any prior relationship of any kind between Mrs. Marin and her killer.
Section 1 of Article 8309, Tex.Rev.Civ. Stat.Ann., declares that an injury is not “sustained in the course of employment” and is, therefore, not compensable, if it is “. . . caused by an act of a third person intended to injure the employee because of reasons personal to him and not directed against him as an employee, or because of his employment.” Commercial’s “no evidence” and “insufficient evidence” points assailing the jury’s “course of employment” findings are based primarily on this statutory exclusion.
Only about eight states have enacted statutes, such as the Texas provision referred to in the preceding paragraph, excluding from the category of compensa-ble injuries those injuries which are intentionally inflicted for personal reasons that are unrelated to the employment of the injured employee. But even in the absence of such legislation, it is almost universally held that when the animosity or dispute which culminates in the assault is imported into the place of employment from the injured employee’s private or domestic life, the injury is not compensable, at least where the animosity is not exacerbated by the employment. Small, The Effect of Workmen’s Compensation Trends on Agency-Tort Concepts of Scope of Employment, 11 NACCA L.J. 19, 23-62 *864 (19S3). That is, the apрroach of the courts to the intentional injury cases, most of which involve assaults, is the same whether or not the particular jurisdiction has a statute similar to ours.
Apparently, the first Texas case involving an analysis of the intentional injury exclusion is Vivier v. Lumbermen’s Indemnity Exchange,
Commercial insists that the opinion of the Commission of Appeals in
Vivier
is of no more value as precedent than an opinion of a Court of Civil Appeals in a case where application for writ of error has been refused by the Supreme Court with the notation, perplexing to some, “no reversible error”. This belittling of the precedental weight of
Vivier
is based on the fact that the Supreme Court adopted only the
Vivier
judgment, and not the opinion. But, as the Supreme Court pointed out in National Bank of Commerce v. Williams,
The judgment in
Vivier
was adopted and entered as “. . . the judgment of the Supreme Court.”
*865 The judgment of the Supreme Court in Vivier, then, is necessarily a square holding to the effect that the Court of Civil Appeals erred in holding that the intentional killing, by an outsider, of an employee on duty for the purpose of robbing the employee is not compensable. Stated differently, the unequivocal judgment of the Supreme Court in Vivier is that, notwithstanding the language of the intentional injury exclusion, the intentional killing of an on-duty employee, for the purpose of robbing him, is an injury sustained in the course of employment.
The Supreme Court has never overruled, nor has it questioned,
Vivier.
No Court of Civil Appeals has ever questioned the
Vivier
opinion. Following the
Vivier
opinion, interpreting the intentional injury exclusion, the legislature re-enacted, without change, the provision on which Commercial relies, showing that
Vivier
correctly interpreted the statutory provision. See Southern Surety Co. v. Shook,
We conclude that Vivier is the authoritative interpretation of the statutory exclusion.
We consider next the assault cases on Which Commercial relies.
In Service Mutual Ins. Co. of Texas v. Vaughn,
The Vaughn opinion refers to Vivier with what can only be construed as approval, since the Beaumont Court pointed out that in Vivier there was a causal connection between the employment and the injury. The causal connection which Vaughn found in the Vivier situation is the fact that in Vivier the marauder went on the premises of the employer for the purpose of robbing the employee. It is patent that the assailant’s motive in Vivier, robbery of the employee, was one unconnected with antecedent malice directed toward the employee personally or arising from the private life of the injured employee or the previous relationship between the assailant and his victim. On the other hand, in Vaughn, there was antecedent malice directed toward the employee personally, growing out of the domestic and private life of the parties.
Texas Indemnity Ins. Co. v. Cheely,
Assuming that the Amarillo Court’s interpretation and evaluation of the evidence is correct, Cheely is consistent with the Vivier rationale and, in view of the language quoted in the preceding paragraph, must be considerеd as, at the very least, not disapproving of Vivier.
In Erwin v. Texas Employers’ Ins. Ass’n,
But the Court pointed out that, at the time he was killed, Erwin was not engaged in any activity designed to further the business interests of his employer, saying:
“While Erwin was on his route in delivering milk and collecting the empty bottles in the line of his duty, we think he may not voluntarily and unnecessarily leave his seat on the curb of the sidewalk, go to the automobile, and open the door and engage in a conversation with the occupants, and, because of some reаl or fancied surly tone of voice in which he was addressed prior to or at the time he was at the open car door, then go to his milk wagon and take therefrom an empty milk bottle and hold it by the neck in a threatening manner, and, when an injury is inflicted at that very moment, we think it cannot be said the injury resulted from a risk or hazard necessarily or ordinarily or reasonably incident to the conduct of the work or business of delivering milk to the trade and gathering up the empty bottles.”63 S.W.2d at 1078 .
Assuming that the Court correctly interpreted the evidence, Erwin is not only a case where the employee deliberately turned aside from his duties, but is also a case in which, in the language of Vivier, “the employee by his own initiative provoked a difficulty which caused the other party to feel a ‘personal’ interest in assaulting him.” Erwin is, therefore, not inconsistent with Vivier.
In Wall v. Royal Indemnity Co.,
This holding was based on “ . the absence of any showing that the crime would not have been committed at any other place, or but for such employment.”
The
Wall
opinion, which makes no mention of
Vivier,
cites only three cases in support of its holding. Two of these cases, London Guaranty & Accident Co. v. Smith,
In addition, the allegations of the petition in Wall disclose that the assassins sought out the employee, Wall, for the purpose of killing him. It is one thing for the assailant to say, “I am going to the X Company, where Wall works, for the purpose of killing Wall,” and another thing for him to say, “I am going to the X Company for the purpose of killing whoever might be on duty there.” The first case is an example of antecedent malice, directed toward the victim personally, and, therefore, not compensable under Vivier. If we apply the Vivier rationale, plaintiff in Wall brought himself squarely within the intentional injury exclusion.
None of the assault cases relied on by Commercial question Vivier; none is inconsistent with Vivier; the holding in one is expressly based on Vivier; and in another, Vivier is cited with what is at least apparent approval. There is nothing in these four cases which tends to indicate that we should not “feel constrained” to follow Vivier.
Vivier was expressly approved and followed in Southern Surety Co. v. Shook, supra, awarding compensation in a case where the killer murdered the employee at his place of employment for the purpose of robbing the employee and watching him “kick.” It should be pointed out that in Vaughn, discussed above, the Beaumont Court of Civil Appeals pointed out that in Shook, as in Vivier, the fact that the assailant went on the employer’s premises for the purpose of robbing the employee, furnished the necessary causal connection between the employment and the injury. The Vaughn opinion, then, expresses approval of Shook.
Vivier
was cited with approval in Travelers Ins. Co. v. Williams,
Travelers Ins. Co. v. Hampton,
Even if it be assumеd that the mental incapacity of the assassin prevents an injury from being classified as intentional,
2
the award of compensation in
Hampton
necessarily means that the injury was sustained in the course of employment and arose out of, or originated in, the employment, since such findings are essential to the recovery of compensation in any case. The Court pointed out that the murdered employee’s “ . . . only contact with the killer was caused directly and solely by his employment, which -required him to work with” the lunatic’s intended victim “and, thus, placed him in the danger zone where only an employee of Pinkie’s had to be.”
The argument, that the fact that the assault was a sexual assault precludes per se the finding that there was a causal connection between the employment and the injury, is based on the fallacy that the subject matter of, or the motive for, the assault is the only possible way of connecting the attack with the employment. The rationale of
Vaughn
undermines this argument. There, the Court, after quoting from a case denying compensation for injuries resulting from an intentional assault, engendered by the fact that the victim was the husband of the assailant’s paramour, said, “On the authority of that case, it is our conclusion that there must be a direct causal connection between the employment and the injury, such as robbery, arson, or some other motive inducing the marauder to enter upon the employer’s premises.”
It is well settled that if an injury is received by an employee while he is acting within the course of his employment, and such injury is the result of a risk or hazard of the employment, it is compensable. American General Ins. Co. v. Williams,
It is contended that to hold that an assault is compensable if the risk of assault is increased because of the nature of the work is to adopt the “positional risk” test, sometimes referred to as the “environmental risk” or “but-for” test, and that this test has been rejected by the Texas courts. We know of no Texas case rejecting this test. It is the test which was applied in
Vivier
and
Shook;
and in
Hampton,
it was clearly the test applied in determining whether the killing arose from, and originated in, the work. The correspondence between this test and the “street risk” doctrine is obvious. Although risks of the street are dangers which an employee shares in common with the general public, if the performance of his duties make it necessary for the employee to be on.the streets, the risks he there encounters are held to be incident to his employment. Jecker v. Western Alliance Ins. Co.,
As Commercial points out,
Cuellar
is not an assault or intentional injury case. However, the basis for our conclusion that the insect sting was a compеnsable injury is, like the street risk and travel risk cases, clearly based on the “positional risk” or “but-for” doctrine. It should be noted that the
Cuellar
opinion, by way of footnote, refers, not disapprovingly, to
Vivier
and
Shook.
The condition of Mrs. Marin’s employment did not merely provide the time and place for the assault upon her. The conditions of her employment increased the risk of such attack, and subjected her to a danger incidental to such employment. While it may be a sad and tragic commentary upon our times, common knowledge of the current rate of crime to which our society is being subjected compels the conclusion that one whose employment requires that he earn his livelihood during the hours of *870 darkness is subject to occupational hazards nоt shared by others.
It is true that in
Vaughn
the Beaumont Court considered the “positional risk” theory at some length and refused to apply it under the circumstances of the case before the Court. However, to insist that the Court in
Vaughn
rejected the doctrine is to charge that the Court did not understand the doctrine. The positional-risk theory would not require a finding of com-pensable injury under the
Vaughn
facts. Under that test, assaults are compensable only if they are not motivated by personal vengeance stemming from contact with the employee outside of his employment. Crotty v. Driver Harris Co.,
“In the instant case the personal animosity of Eddings was the direct cause of the employee’s death. He did not kill Schumacher because he was the company’s night watchman on duty, but because he was the husband of his paramour. Does the fact that his duty put him in such a place as gave his murderer an opportunity to carry out his nefarious design with less probability of apprehension than if he did so elsewhere constitute such causal relation as to bring the result within the term ‘arising out of his employment’? We hardly think so, on both reason and authority.”
As already pointed out, Vaughn was not killed because he was the night watchman on duty, but because he was the father of the assassin’s wife. The positional-risk theory is, therefore, not applicable to the facts before the Court in Vaughn, and the Vaughn decision is correct under Vivier.
If
Vaughn
is put forward as a rejection of the positional-risk theory, it must be concluded that the Court was laboring under a misapprehension as to the nature of such theory. If the Court intended to reject the theory, it went wrong at the beginning when it distorted the test by making the comparison with a selected group instead of with the general public. This is shown by the following portion of the
Vaughn
opinion :
"Vaughn assumed no greater hazard,
by reason of his employment,
than other night watchmen
engaged in the same character of work.”
Commercial relies heavily on State ex rel. Common School District v. District Court,
*871
In Employers Ins. Co. of Alabama v. Wright,
We conclude that the “course of employment” finding is supported by evidence and is not contrary to the overwhelming weight and preponderance of the evidence.
The points of error presented by the other appellants, Mr. and Mrs. Casares, the surviving parents оf the murdered employee, complain of the trial court’s refusal to submit three requested special issues and its failure to impose a constructive trust in their favor on the death benefits, which the judgment ordered Commercial to pay.
The first requested special issue inquired whether appellee and Mrs. Marin were married at the time Mrs. Marin was killed. This fact is undisputed and, therefore, it was not error for the court to refuse to submit this issue.
The second special issue inquired whether “. . . the employment of Santa Emily Marin . . . was proximately caused by the refusal of” her husband, appellee, “to support her.” The third requested issue asked whether Mrs. Marin “. . . would not have been working in the employment in question but for thе refusal” of appellee “to support her.”
These two issues were not relevant to the case. Even if we assume that ap-pellee’s refusal to support his wife was the cause, actual and legal, of her accepting the employment as a service station attendant, the existence of these facts would not affect appellee’s rights to receive compensation for her death.
Article 8306, Section 8a, Tex.Rev.Civ. Stat.Ann., requires that the death benefits be paid to the surviving husband, except where he has abandoned the deceased employee for a period of three years. The statutory exception is inapplicable here, since, at the time of the killing, appellee had not abandoned his wife for three years.
In all cases where a constructive trust is imposed, the result is to restore to the “beneficiary” property of which he has been unjustly deprived and to take from the “trustee” property the retention of which by him would result in his corresponding unjust enrichment. That is, the result is to restore the parties to the position they occupied before the “trustee” acquired the property. To require appellee here to pay over the compensation award to his parents-in-law would not restore the latter to the position they occupied before appellee obtаined the money. See, generally, Restatement, Restitution (1937), Section 160, Comment d.
The facts of this case do not bring it within any of the situations where the courts have imposed constructive trusts on property. See S Scott, Trusts (3d ed. 1967) Chapter 13. Perhaps the most analogous *872 constructive trust situation is that in which a person has, through murder, acquired title to property. It certainly cannot be said that, under the facts of this case, ap-pellee caused the death of his wife. He did not intentionally kill her and, as a result of such intentional homicide, obtain title to property. Even if we indulge the rash presumption that he accidentally or negligently caused her death, it is settled that where one kills another accidentally or negligently, the rule preventing a killer from acquiring property as the result of the death is inapplicable. 5 Scott, op. cit., Section 492.3, p. 3504.
We see no reason for not following the legislative command that where a married woman is killed in the course of her employment, compensation is payable to the surviving husband.
The judgment of the trial court is affirmed.
Notes
. The Supreme Court originally granted the application for writ of error in
Kin-caid.
However, the application was subsequently dismissed on procedural
*868
grounds. Petroleum Casualty Co. v. Kincaid,
. The proposition is of doubtful validity, at best. See Eidinoff v. Andress,