193 A. 488 | Pa. Super. Ct. | 1937
Argued April 26, 1937. The claimant's husband, Joseph A. Rathburn, was employed by Sussman Brothers Company, the defendants, as night watchman at a scrap or junk yard conducted *106 by them. The yard contained considerable quantities of machinery, scrap iron and other waste materials.
On November 9, 1934, Rathburn was inside a small shanty on the premises of his employers, in the regular course of his duties as watchman, when three young men, all of whom were armed with guns (revolvers), approached and ordered him out of the shanty. As Rathburn came out of the door of the shanty, he was told to "stick `em up." Instead of putting up his hands, he started to "rush them" or "pull his own gun,"1 whereupon one of the young men shot him, and they all ran away, without securing any booty. Rathburn died four days later from the effects of the bullet wound. He identified two of the young men who were with the one who fired the shot, after being told that he was going to die, and they subsequently pleaded guilty and were sentenced to Huntingdon Reformatory.
The second referee who heard the case, after various proceedings, not necessary to be recited here, refused to award compensation, on the ground that the death was the result of an injury caused by a third person directed against the decedent because of reasons personal to him and not as an employee or because of his employment. This was based on certain vague hearsay declarations that the young man who fired the shot knew that Rathburn had that day been paid his weekly wages, $14, and that the object of the hold-up was to get this money; but it was not supported by the weight of the evidence, and on appeal to the board the findings of the referee were set aside and the board adopted and reinstated the findings and award of the referee who had first heard the case, and awarded compensation to the widow. On appeal to the court of common pleas the award was sustained and judgment entered for the *107 claimant. The insurance carrier has appealed to this court. The judgment will be affirmed.
The evidence clearly establishes that the claimant's husband was killed on the premises of his employer and in the performance of his duties as watchman. When killed he was doing just what he was employed to do, acting to protect the property of his employers, which he had been engaged to watch and defend.
The burden of showing an intention on the part of his assailants to injure the deceased watchman, because of reasons personal to himself and not directed against him as an employee or because of his employment, under Article III, sec. 301 of the Workmen's Compensation Act, was on the defendants (O'Rourke v.O'Rourke,
The young men went to the defendants' yard to execute a hold-up, that is, to rob. There was no competent evidence that they intended only to rob the watchman of his pay; but even if they had, that would not have taken the employee out of the protection of the Act. They went there to rob, not to gratify or indulge any personal animosity against the deceased. Robbers and hold-up men war on society at large, but, except in rare instances, they have no personal animosity against the individual victim. The robbery is not done because of personal enmity to the person robbed. They are out after money, and they do not care where they get it. There is no personal ill feeling about it directed against the individual robbed, as distinguished from society as a whole. Even if the thought of robbing the watchman, himself, was uppermost in the minds of the three who attacked him, there was nothing in the encounter to lead Rathburn to believe that an attack upon him for personal reasons was intended, or anything other than *108 an attempt to rob the premises which he was employed to protect. Their outcry had in it no element of personal animosity — "stick 'em up" could mean only an attempt to rob or injure the property he was employed to defend.
The provision in section 301 of the Act that "The term `injury by an accident in the course of his employment' . . . . . . shall not include an injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment," refers to an assault or attack by a third person — that is, by a person other than the employer — because of personal enmity or animosity against the employee, or to avenge some wrong or grievance personal to him, not arising out of or because of his employment. This is recognized in the following decisions, inter alia, construing the clause: O'Rourke v. O'Rourke, supra, where Mr. Justice FRAZER, afterwards Chief Justice, used the expressions "to avenge a wrongful act, or for a grievance personal to him" (p. 54), "personal animosity" (pp. 55, 56), "personal enmity" (p. 56); Curran v. Vang Const. Co.,
Of the cases cited and relied on by the appellants, *109 some of them related to injuries which were clearly the result of a quarrel arising from personal enmity or animosity;2 in some, the injured employee was himself the aggressor in a felonious attack, the result of a private quarrel or personal feud;3 in others, the attack occurred off the premises of the employer, when the employee had quit work and was on his way home, and was no longer in the course of his employment or furthering the interests of his employer.4
In the case of Cronin v. American Oil Co.,
There is nothing in the opinion in that case which supports the position that if that hold-up had occurred on the employer's premises, in the course of claimant's employment, he would not have been entitled to compensation, even if no money had been taken from him but his own. The extract last quoted is to the contrary.
It is well known that junk yards are peculiarly subject to theft and pilferage and the employment of Rathburn as watchman was to protect the property against just such depredations. That he lost his life while doing his `allotted duty' entitles his dependents to compensation.
Judgment affirmed.
