Opinion
For Opinion on Hearing, see 65 Cal.Rptr. 155, 436 P.2d 67.
Everett A. Corten, San Francisco, and Edward A. Sarkisian, Los Angeles, for respondent, Appeals Bd.
McConnell & Cramoline and Lawrence Kirk, Los Angeles, for petitioner.
Bruce P. Wolfe, Los Angeles, for respondent, Janet Rae Schick.
McCOY, Associate Justice pro tem.
Assigned by the Chairman of the Judicial Council.
Petitioner, the workmen's compensation insurance carrier, seeks review and annulment of an award of death benefits to respondent Janet Rae Schick on account of the death of her mother, Lillian A. Schick. The decedent was shot and killed on April 8, 1965, by her former husband, Carl Schick, from whom she had been divorced in 1962 There is no dispute regarding the circumstances and motivation for the shooting. Decedent was an employee of the J. Marie Martin Company, petitioner's assured. The employer manufactured table pads which it sold at wholesale to retail stores. It was decedent's job to go to the homes of the retail store customers to take the measurements of tables for which pads were to be made. Her former husband took an apartment under an assumed name and, using that name, ordered a table pad from a department store. In response to his order and instructions to the department store, decedent went to his apartment at the time arranged. As she raised her hand to knock, he opened the door and shot her. She died a few hours later. He was found dead in the bathroom of the apartment from a self-inflicted gunshot wound. The evidence, including a letter written by him, indicated that the murder and suicide were premeditated and carried out because of his frustration and bitterness at his failure after numerous attempts to effect a reconciliation with decedent and the fact, known to him, that she was planning to marry another man.
The referee issued a 'take nothing' order, finding that injury and death of the decedent occurred in the course of her employment but did not arise out of it. Upon reconsideration, the appeals board issued the award, finding that death resulted from injury arising out of as well as in the course of employment. In its opinion after reconsideration it specified its reason for the decision, as required by Labor Code section 5908.5, as follows: 'It is our opinion based upon the facts of this case that the employment contributed to the employee's death by placing her in an isolated location and thereby facilitating her ex-husband's assault upon her. It may be noted that had her husband attempted to accomplish his purpose in a more public location, there was a chance that a rescuer might have intervened in her behalf. In view of the elaborate plans that were made to lure decedent to an isolated location it is apparent that decedent's husband recognized this possibility.'
Petitioner asserts that injury from an assault which grows out of a private and personal grievance between the injured employee and another person does not 'arise out of' the employment regardless of where or when it occurs, and that the appeals board has made an erroneous conclusion of law. It concedes that the injury resulting in death occurred in the course of employment and that the employment took her to the place of danger but contends that in tracing the cause of injury the law looks, not to 'how' or 'where' the assault was committed, but to 'why' it was committed.
In support of the award the appeals board simply asserts that under the modern cases the test of 'arising out of the employment' is satisfied where the work of an employee brings him to what turns out to be a position of danger. Respondent Janet Rae Schick adopts this contention and argues that 'but for' the means by which the employer carried on its business the decedent would not have been killed, that decedent was not going to a private quarrel, and that the case at bar is not different from a case of injury from assault by a lunatic, a robber, or an unknown stranger, or from a scuffle with a customer, in which cases awards have been sustained.
We believe these contentions of the parties pose the following question: 1. Does injury from an assault inherently private in origin 'arise out of the employment' simply because the assault takes place while the employee is in the course of employment? 2. If not, does the fact that the employment took the employee by appointment to the private homes of individuals, thus permitting a deliberate and planned assault in a private place, make the employment a contributing cause of injury? We answer these question in the negative and hold that the particular circumstances here The Workmen's Compensation Act imposes liability on an employer for injury or death of an employee 'arising out of and in the course of' the employment. (Lab. Code § 3600.) In Scott v. Pacific Coast Borax Co., 140 Cal.App.2d 173, 178-179, 294 P.2d 1039, 1043) the court noted: 'It has generally been held that the phrase 'arising out of' is the causal element and refers to the origin of the accident [citation], while the words 'in the course of employment' have reference to the time, place and circumstances of the disabling event [citation]. Although the two elements must co-exist concurrently to sustain an award, they are nonetheless often so intertwined that no valid line of demarcation can be drawn, so that in certain cases an injury has been considered to have occurred 'in the course of employment' because the employment was its cause [citations], while in others the injuries, though emanating from some external instrumentality, were regarded as 'arising out of the employment' because they were sustained during and at the place of employment.'
In Industrial Indem. Co. v. Industrial Acc. Com., 95 Cal.App.2d 804, 214 P.2d 41, Justice Bray reviewed the cases involving street risks, horseplay, and forces set in motion by acts of God or acts which came from outside the employer's premises and pointed out (p. 813, 214 P.2d p. 47) 'how unrealistic it is to attempt to find hazards as a basis of decision * * *.' or to resort to other rationales of tort law to find causation when an analysis of the facts and rulings in these cases showed that the courts were allowing compensation because the employment brought the employee to what became a position of danger. The cases that have followed leave no doubt that this jurisdiction has discarded the narrow views and rules associated with fault and foreseeability and the doctrine of 'proximate cause' in the field of tort law and has adopted the positional risk or 'but for' test of causation in questions of workmen's compensation. (Madin v. Industrial Acc. Com., 46 Cal.2d 90, 292 P.2d 892; Truck Ins. Exch. v. Industrial Acc. Com., 147 Cal.App.2d 460, 305 P.2d 55; Western Greyhound Lines v. Industrial Acc. Com., 225 Cal.App.2d 517, 37 Cal.Rptr. 580.) The rule, as frequently stated, is that the causation requirement of the statute is satisfied where the work of the employee brings him within the range of peril by requiring his presence there when it strikes, or, in other words, the work brings him to what turns out to be a position of danger.
The typical case in which the issue of causation has been litigated and the rule applied to allow compensation is one in which 'the factor which put in motion the force causing the injury' is something with which the employment had no connection until it struck the employee in the course of his employment. The factors which put the force causing injury in motion have been such things as: an explosion on nearby premises (Pacific Indemnity Co. v. Industrial Acc. Com., 86 Cal.App.2d 726, 195 P.2d 919), an earthquake (Enterprise Dairy Co. v. Industrial Acc. Com., 202 Cal. 247, 259 P. 1099), an irate wife shooting at her husband, a customer in a bar where the employee was working (Industrial Indem. Co. v. Industrial Acc. Com., supra, 95 Cal.App.2d 804, 214 P.2d 41), a runaway bulldozer started by boys on neighboring property (Madin v. Industrial Acc. Com., supra, 46 Cal.2d 90, 292 P.2d 892), a 10 year old boy firing stray bullet (Truck Ins. Exch. v. Industrial Acc. Com., supra, 147 Cal.App.2d 460, 305 P.2d 55). In each of these cases it is noted that the injured employee likewise had no prior personal connection with the external factor which put the force in motion. Except perhaps in the Industrial Indemnity case, these are neutral factors having their origin in neither the work nor the personal life of the employee.
See Madin v. Industrial Acc. Com., supra, 46 Cal.2d 90, 93, 292 P.2d 892.
An assault, like any other source of harm, may have its origin in a factor of Pacific Employers Ins. Co. v. Industrial Acc. Com.,
Liberty Mut. Ins. Co. v. Industrial Acc. Com., Azevedo v. Industrial Acc. Com., Lykins v. Industrial Accident Commission, Western Greyhound Lines v. Industrial Acc. Com.,In the opinion of Justice Bray in Industrial Indemnity Co. v. Industrial Acc. Com., supra, 95 Cal.App.2d 804, 810, 214 P.2d 41, 45, the following comment of a writer in 18 California Law Review, page 562, was quoted with approval: 'When an employment places an employee at any given place to do his work, indoors or outdoors, and the employee so placed is injured because at work in that spot, compensation should be awarded for the injury, except in the field of disease where it is needed to distinguish industrial from non-industrial diseases.' (Emphasis added.) In 1 Larson, Workmen's Compensation Law, page 49, the author suggests other exceptions in the following pertinent comment: 'At the other extreme are origins of harm so clearly personal that, even if they take effect while the employee is or the job, they could not possibly be attributed to the employment. If the time has come for the employee to die a natural death, or to expire from the effects of some disease or internal weakness of which he would as promptly have expired whether he had been working or not, the fact that his demise takes place in an employment setting rather than at home does not, of course, make the death compensable. Or if the employee has a mortal personal enemy who has sworn to seek him out wherever he may be, and if this enemy happens to find and murder the employee while the latter is at work, the employment cannot be said to have had any causal relation to the death. The same is true if the employee, for reasons of his own, carries a bomb in his bosom (as actually happened in one case), and if the bomb goes off during business hours.'
We have found no case in this jurisdiction which considers or states, in so many words, the rule of law which is applicable to a case of assault by a person whose relationship with the employee was established outside of the employment and whose reasons for the assault were personal. The court in Azevedo v. Industrial Acc. Com., supra, 243 Cal.App.2d, 370, 377, 52 Cal.Rptr. 283, 287, recognizes that to be compensable an assault cannot be 'the result of personal grievances unconnected with the employment.' We believe that the correct rule is that noted in other jurisdictions, i. e., that assaults on an employee who is at the time of the assault in the course of his employment are compensable so long as they are not engendered solely from a relationship with the employee outside of the employment. (See 1 Larson, Workmen's Compensation Law, § 11, pp. 131-192.6.)
Inasmuch as the purpose of the Workmen's Compensation Law is to charge industry for injury or death which the employee would not have suffered 'but for' his employment, the rule that injury sustained while in the course of employment also arises out of it is clearly called for in cases where the factor which puts the force causing injury in motion is neutral. A further consideration in adoption of the Pacific Indemnity Co. v. Industrial Acc. Com.,
Western Greyhound Lines v. Industrial Acc. Com.,The considerations for applying the positional risk test, which we have set forth in the preceding paragraph, have persuaded us that the test has application only where the harm has its origin in something with which neither the employment nor the employee has a prior connection. By the application of that test in cases where the source of harm is neutral, industry is properly charged for injury to or death of the employee. But the Workmen's Compensation Law does not charge industry for injury or death which, like disease, sometimes comes to an employee through personal contacts unrelated to his employment. Where there is positive evidence showing that that is the case, there is no justification for assuming, contrary to the facts, that industry is responsible.
In respect to the finding of the appeals board in the instant case that the employment, by its nature, contributed to the death of decedent by placing her in an isolated location which deterred rescue, we are reminded of the early cases involving street risks and the like which found injury compensable under the theory of 'special risk.' As we have pointed out, where an assault is engendered solely from a relationship with the employee outside the employment, the source of harm is so clearly personal that even if it occurs while the employee is in the course of employment it cannot be attributed to the employment.
We have not discussed the early cases which are cited in the briefs inasmuch as the holdings and statements contained therein were not made in light of the positional risk test. What we have previously said answers the contentions of the respondent Janet Rae Schick.
The award is annulled.
FORK, P. J., and MOSS, J., concur.