27 P.2d 553 | Kan. | 1933
Lead Opinion
The opinion of the court was delivered by
This was an action for compensation for an injury sustained by plaintiff while in defendant’s employment.
The claim was denied by the commissioner of workmen’s compensation, but upon appeal was allowed by the district court.
Claimant was employed by John Morrell & Company as a traveling salesman. While driving upon the highway near Belleville, the windshield of his car was broken by a chunk of mud intentionally thrown from another car. Glass from the windshield was driven into his eye, causing the loss of sight and necessitating its removal. He claimed the injury occurred in the course of his employment and arose out of it, as he was required to travel upon the highway to reach customers.
As to the time, place and circumstances of the accident it happened in the “course of employment,” such phrase simply meaning that it happened while he was at work in his employer’s service. (Cox v. Refining Co., 108 Kan. 320, 195 Pac. 863.) But to impose liability upon the employer, the injury must also arise out of the
“The accident must result from a risk naturally and reasonably incident to the employment. The risk must be within rational comprehension as an incident of the employment, and must be one to which the workman would not- be equally exposed outside of the employment. It is not enough for the dependents to say the conductor would not have been killed if he had not been at his place on his car at the time he was stabbed. They must say he was killed because he was a street-car conductor on duty, and so was overtaken by a hazard to which performance of his duty exposed him.” (p.462.)
The meaning of the phrase “arising out of” is further distinguished in Bevard v. Coal Co., 101 Kan. 207, 165 Pac. 657, and in Haas v. Light & Power Co., 109 Kan. 197, 198 Pac. 174, and was defined in Sellers v. Reice Construction Co., 124 Kan. 550, 262 Pac. 19, by quoting from McNicol’s case, 215 Mass. 497, 498:
“ ‘It is sufficient to say that an injury is received “in the course of” the employment when it comes while the workman is doing the duty which he*594 is employed to perform. It “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. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises “out of” the employment. But it excludes an injury which cannot be fairly 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.'" (p. 553.)
The rule was stated that:
“If in any case the cause of injury takes.its rise from something extraneous to the employment, the injury does not arise out of the employment, and recovery should be denied on that ground, not on the ground that the employment is not proximate cause. The problem is usually solved, however, by invoking the doctrine of proximate cause.” (p. 554.)
There was a causal connection between the employment and the death of a traveling salesman in the case of Kennedy v. Hull & Dillon Packing Co., 130 Kan. 191, 285 Pac. 536, wherein the claimant while traveling over a highway was killed by contact with a high-voltage wire which had been strung above the highway and was blown down in a storm; the injury from the wire was a hazard of the road to which the employment of the deceased exposed him.
It appears that the injury sustained by claimant was the result of an attack by a third party in no way connected with his employment. Compensation has been denied for injuries inflicted by belligerent workmen and through horseplay. The rule was stated in Stuart v. Kansas City, 102 Kan. 307, 171 Pac. 913, quoting from Corpus Juris:
“ ‘An employee is not entitled to compensation for an injury which was the result of sportive acts of coemployees, or horseplay or skylarking, whether it is instigated by the employee, or whether the employee takes no part in it. If an employee is assaulted by a fellow workman, whether in anger or in play, an injury so sustained does not arise “out of the employment,” and the employee is not entitled to compensation therefor, unless in a case where the employer knows that the habits of the guilty servant are such that it is unsafe for him to work with other employees.’ ” (p. 310.)
All persons are exposed to the pranks of boys throwing missiles at passing cars and at other objects, movable or stationary, and the claimant was no more exposed to such hazard by virtue of his employment than anyone else. Neither can it be said that this was a hazard of the road. This was not a piece of mud thrown by the wheels of a passing car. It was deliberately thrown, and it might have been thrown at claimant wherever he was. While there seems to be a tendency toward more liberality in recovery with respect to street risks incurred in the course of employment (see note 80 A. L. R. 126), we do not believe that under the facts of this case it should be held, as a matter of law, that the claimant’s injuries arose out of his employment.
The judgment of the lower court awarding compensation is reversed, and the cause is remanded with instructions to render judgment for the defendant.
Dissenting Opinion
(dissenting): I find myself unable to concur in the opinion of the majority. I place my dissent on the ground that claimant, as an incident of his employment, was required to travel upon the highways by automobile and was subject to all the risks thereof; a windshield is a necessary part of the automobile; windshields break from a variety of causes and may be broken by a variety of means; it is reasonably to be anticipated that a driver of an automobile may be injured by the breaking of a windshield.
This question was decided in the case of Thom v. Sinclair, delivered in the House of Lords, [1917] A. C. 127. In that case the applicant was working in a shed packing herring. A brick wall on the adjoining premises fell on the shed and brought the shed down upon the applicant. In allowing the award of compensation Viscount Haldane, Lord Kinnear agreeing, said:
“The expression 'cause’ is almost invariably used in a way which lacles precision. In strict logic the cause cannot be pronounced to be less than the sum of the entire conditions. But in ordinary speech and practice we select some one or more out of what is an infinite number of conditions to be treated as the cause. From the practical standpoint of the man in the street the cause of the setting of the house on fire was the striking of a match, while from that of the man of science it was the presence of all the conditions which enabled potential to be converted into kinetic energy. On the other hand, for the court which tries a question of arson the cause is the intention of the accused and any deed done which has accomplished this intention. What, then, is the special point of view which the workmen’s compensation act directs us to take in the practical selection of the circumstances which are to determine whether an event has arisen out of the employment which has amounted to injury by accident within the meaning of the act? I think that the court is directed to look at what has happened proximately, and not to search for causes or conditions lying behind, as would be the case if negligence on the part of the employer had to be established.” (p. 135.)
The court held they could not go back of what caused the roof to fall. The employee worked under the employer’s roof. It fell and the employee was injured. That was enough. This view is not inconsistent with the decision in Sellers v. Reice Construction Co., 124 Kan. 550, 262 Pac. 19, relied upon in the majority opinion, for, as observed by the court in that case, “Sellers was employed to do (he construction company’s work, not to look after Jacob’s car, and
In a consideration of workmen’s compensation cases we have the so-called “horseplay” cases, those involving injuries from co-employees and from third persons not connected with the employment. We also have those cases involving injuries received on the streets or highways due to the hazards of the street and highway. This case falls definitely within the travel hazard group. Appellant concedes that if the injury was due to a road hazard compensation should be allowed. The great majority of courts treat travel hazards as incidents of the employment of those required to travel, and the weight of authority permits recovery. (Wis. Law Rev., 18, 247.) The following cases establish, in my opinion, that the injury grew from the hazard of the road. This question was passed on in Schroeder & Daly Co. v. Industrial Comm,., 169 Wis. 567. There the court said:
“If it should be held that messengers, deliverymen, salesmen and others who by the nature of their employment are required to be continually on the streets and highways, are not entitled to compensation for injuries received in the course of their employment, if the injury occur on a street or highway, a large class of worthy applicants would be cut off and the workmen’s compensation law emasculated . . . The risk of injury to the applicant in this case was incidental to his use of the street in the course of his employment and was peculiar to the employment in that the work of the employee could not be carried on without his subjecting himself to that risk. It therefore grew out of his employment. The fact that others may be exposed to like risks does not change the character of the risk to which the applicant was exposed.” (p. 569.)
In Schmiedeke v. Four Wheel Drive Auto Co., 192 Wis. 574, 213 N. W. 292, the court held that where a salesman traveled by automobile, injuries received by him in such travel grow out of and are incidental to his employment within the meaning of the workmen’s compensation act. In that case it was said:
“We take it to be well settled that the risks of automobile travel constitute a hazard growing out of and incidental to the employment of a salesman*598 traveling by automobile. Such is the effect of the holdings in Schroeder and Daly Co. v. Industrial Comm,., 169 Wis. 567; 173 N. W. 328, and U. S. Cas. Co. v. Superior H. Co., 175 Wis. 162, 184 N. W. 694; that street hazards to which ordinary salesmen on foot are subjected are hazards peculiar to the employment. Accidents of this kind have almost universally been held to be compensable.” (Citing cases.) (p. 577.)
In London, Etc., Co. v. Industrial Acc. Com., 35 Cal. App. 681, 170 Pac. 1074, the injured employee was required to travel from place to place to install machinery. In so doing his car overturned and he was injured. It was argued by the claimant that the case fell within those cases wherein recovery was permitted. In permitting recovery the court said:
“The exceptional cases are those wherein . . . the employee is required to travel from place to place . . . and hence where the risks of such travel are directly incident to the employment itself, and hence wherein the accident occurring by reason of such risks is one arising out of the employment and therefore a proper subject of compensation.” (p. 682.)
In Derleth v. Roach & Seeber Co., 227 Mich. 258, 198 N. W. 948, a salesman went to his garage to prepare his car for travel and was killed by monoxide gas poisoning. The court held his death arose out of the employment and permitted recovery.
In Industrial Com. v. Pueblo Co., 71 Colo. 424, a salesman went to the country to effect a sale. In returning to town he invited two strangers to ride. One of them shot the salesman in order to take his car. The court held that an assault for purposes of robbery was a hazard of the road and recovery was allowed.
In Challis v. London and Southwestern Railway, 2 K. B. (1905) 154, the circumstances were these: While the deceased was driving a train the eyeglass of the driver’s cab on the engine was broken by a stone deliberately thrown by a small boy standing on a bridge. The driver’s eyes and face were injured. It was said:
“The interpretation of the words ‘accident arising out of employment’ appears to me necessarily to involve the consideration of the question, what risks are commonly incidental to the particular employment in question? The cases relied upon by the respondents dre not, in my opinion, inconsistent with the view that such an accident as occurred in the present case is within the act. On the contrary, they appear to me to be rather in favor of that view.”
“(Cozens, Hardy, L. J.): In my opinion, the county court judge was wrong in thinking that what happened in this case could not be an accident within the act, because it was a result of a tortious act willfully committed by some person in throwing the stone from the bridge.”
*599 “Matthew, L. J., in agreeing, said: The argument for the respondents really involved the reading into the act of a proviso to the effect that an accident shall not be deemed to be within the act if it arose from the mischievous act of a person not in the service of the employer. I see no reason to suppose that the legislature intended so to limit the operation of the act. The result is the same to the engine driver, from whatever cause the accident happened, and it does not appear to me to be any answer to the claim for indemnification under the act to say that the accident was caused by some person who acted mischievously.” (pp. 157-159.)
In Levchuk v. Krug Cement Co., 246 Mich. 589, 225 N. W. 559, a bird hit the windshield of an automobile, breaking it and putting out the driver’s eye. The court evenly divided on whether compensation was due. In commenting on the case in 8 Wisconsin Law Review 246, it is said:
“Such an injury may be conceded to be*unusual and not to be anticipated. On the other hand, the- risk, though not great, was directly attributable to the operation of the car and even peculiar to it. It was therefore a travel risk, and where the employment subjects a worker to travel he should be entitled to recover for injuries directly due to such travel, whether they be common or unusual.”
Other cases where recovery was allowed, to mention a few, are: Frigidaire Corp. v. Industrial Acc. Com., 103 Cal. App. 27, 283 Pac. 974, where a traveling salesman, waiting on a station platform, was struck by a stray bullet; Wold v. Chevrolet Motor Co., 147 Minn. 17, 179 N. W. 219, where an employee was killed by a sheriff’s posse in attempting to stop his car; Widman v. Murray Corp., 245 Mich. 332, 222 N. W. 711, where injury to an eye from cinders on a train was considered a travel hazard; Schmiedeke v. Four Wheel Drive Auto Co., 192 Wis. 574, 213 N. W. 292, where automobile overturned. Appellant makes the distinction that in the above case the injury was not intentional. But, as pointed out in Challis v. London and Southwestern Railway, supra, the result is the same to the injured employee. For that matter the injury in the instant case was not intentional. It may have resulted indirectly from negligence, just as the policeman firing the stray shots may have been negligent. (For further review of cases see 80 A. L. R. 127; 49 A. L. R. 454; 29 A. L. R. 120; and 8 Wis. Law Rev. 134, 217.)
Courts have allowed compensation in cases where an outside agency operating upon the traveler actually inflicted the injury, as where a tree or pole is blown down upon the traveler. (Globe Indemnity Co. v. MacKendree, 39 Ga. App. 58,146 S. E. 46, affirmed
The majority opinion states and appellant argues that the injury arose out of a risk “to which he would be equally exposed outside of the business” and points out that the boys might have thrown mud at claimant wherever he was (which of course would not have been serious except for the windshield). In view of the foregoing I think it is clear the argument has no application. But in any event, that rule is not so well established nor of such controlling force as the maj ority opinion would indicate. Thus in matter of Katz v. Kadans & Co., 232 N. Y. 420, it was said:
“If the work itself involves exposure to perils of the street, strange, unanticipated and infrequent though they may be, the employee passes along the streets when on his master’s occasions under the protection of the statute. This is the rule unequivocally laid down by the House of Lords in England . . . The fact that the risk is one to which everyone on the street is exposed does not itself defeat compensation. Members of the public may face the same risk every day. The question is whether the employment ex*601 posed the workman to the risks by sending him on to the street, common though such risks were to all on the street.” (pp. 421, 423.)
In that case a chauffeur was stabbed by an insane man funning amuck on the streets and stabbing all he met. The court held the accident was a street hazard and permitted recovery.
Lord Finlay, in the House of Lords, in Dennis v. A. J. White and Company, (1917) A. C. 479, elaborated on this question as follows:
“It is quite immaterial that the risk was one which was shared by all members of the public . . . Such as it was, it was a risk to which the appellant was exposed in carrying out the orders of his employer . . . ‘the fact that the risk may be common to all mankind does not disentitle a workman to compensation if in the particular case it arises out of the employment’ ... It was said that the same accident might have befallen any member of the public who chanced to be riding a bicycle on that road at that time. That is true, but irrelevant. The statute recognizes no such distinction. If the distinction were sound, then the vast majority of workmen would be deprived of the benefits of this act, because they in the course of and arising out of their daily employment, encounter the very same risks which are faced every day by members of the public. Members of the public do not recover compensation because either they are not employed or the accident happened when they were not in the course of their employment.” (pp. 481, 482, 484.)
See, also, Bookman v. Lyle Culvert & R. E. Co., 153 Minn. 479, where a stenographer who crossed a street to mail a letter and was struck by a passing automobile could recover as for an injury due to a hazard of the employment; McDonald v. Gulf Refining Co., 98 Conn. 286, where recovery was permitted to a watchman whose duties included feeding a dog on the premises was struck while crossing the street to obtain food.
As previously pointed out, the question here is whether the injury was one arising out of employment. The words “out of” convey the idea that.the accident is in some sense due to the employment. (Haas v. Light & Power Co., 109 Kan. 197, 198 Pac. 174.) Under the theory of the road-hazard cases if travel upon the highways is an incident of the employment, almost any injury, especially if the injury is caused by or in some way is' occasioned by the instrumentality of travel, arises out of employment and is compensable. The origin of the bullet or the force causing the tree or pole or wall to fall or the windshield to break, are of little consequence. (Lawrence v. Matthews, [1929] 1 K. B. 1.)
The primary purpose of the compensation act was to shift the burden of industrial accidents from the employee to the employer
To deny compensation in this case is to turn the clock back twenty-two years and in effect to annul the policy of liberal construction which is the very spirit of workmen’s compensation legislation.
I am authorized to say that Mr. Chief Justice Johnston joins in this dissent.
