Big "2" Engine Rebuilders v. Freeman

For the Court:

An administrative law judge, followed by the three-member Workmen’s Compensation Commission and the Circuit Court of the First Judicial District of Harrison County, decided this workmen’s compensation case in favor of the claimant, Raymond W. Freeman. The employer, Big “2” Engine Rebuilders, and its insurer, Casualty Reciprocal Exchange, appeal, contending that Freeman’s injury did not “aris[e] out of and in the course of [his] employment” within the meaning of Mississippi Code Annotated section 71-3-3(b) (1972). We affirm.

On Wednesday, September 3, 1975, the claimant, a route salesman, drove a one-seated unmarked van pursuant to his duties of calling on garages in Hancock County, delivering products and taking orders for parts or engine repairs. At about noon, he proceeded westerly on a service road paralleling Highway 90 enroute to Spiers’ Garage when he came upon a man who flagged him to stop beside an automobile with a raised hood. Responding to the distress signal of the apparently disabled motorist, the claimant pulled over and exited his van. The man pointed a gun behind his ear and told him not to turn around. The claimant, apparently from a blow, lost consciousness and recall at this moment, although the evidence shows he managed to recover sufficiently from the trauma of head injuries, to reach Spiers’ Garage, where he lapsed once more into unconsciousness in the presence of his employer’s customer. The forums below found that the roadside encounter rendered him permanently and totally disabled.

The singular purpose pervading the Workmen’s Compensation Act is to promote the welfare of laborers within the state. Miss.Code Ann. § 71-3-1 (1972); Nowlin v. Lee, 203 So.2d 493 (Miss.1967). As remedial legislation to compensate and make whole, McCluskey v. Thompson, 363 So.2d 256 (Miss.1978), it should be construed fairly to further its humanitarian aims. Speed Mechanical, Inc. v. Taylor, 342 So.2d 317 (Miss.1977); L. B. Priester & Son, Inc. v. Dependents of Bynum, 244 Miss. 185, 197-98, 142 So.2d 30 (1962). Doubtful cases must be compensated. Evans v. Continental Grain Co., 372 So.2d 265 (Miss.1979); King v. Westinghouse Electric Corp., 229 Miss. 830, 92 So.2d 209 (1957); Lindsey v. Ingalls Shipbuilding Corp., 219 Miss. 437, 68 So.2d 872 (1954); National Surety Corp. v. Kemp, 217 Miss. 537, 64 So.2d 723 (1953); Deemer Lbr. Co. v. Hamilton, 211 Miss. 673, 52 So.2d 634 (1951); see also Dunn, Mississippi Workmen’s Compensation §§ 31-32 (2d Ed. 1967).

The order of the administrative judge, the decision of two commissioners in affirmance, one commissioner dissenting, the comments of the circuit judge in affirming, and the disparate conclusions of the justices on this Court, indicate strongly the case is doubtful. This, coupled with the lack of controlling authority in this jurisdiction and the persuasiveness of the weight of authority from other jurisdictions, supports affirmance, in the opinion of a majority of the members of this Court. We decline, as urged by the appellant, to hold that a roadside stop of a traveling salesman upon being flagged down constitutes a “deviation” entailing forfeiture of compensation benefits.

The statutory language “arising out of” and “in the course of” creates a requisite for compensability. Broadly, “arising out of” calls for some causal connection between the employment and the injury. However, the employment need not be the sole cause of injury; it is sufficient if it rationally contributes to it. Prince v. Nicholson, 229 Miss. 718, 91 So.2d 734 (1957). Reasonable relation of employment and injury may involve minimal causation, less than needed for liability in the field of Torts. See, e. g., Charles N. Clark Assoc. v. Dep. of Robinson, 357 So.2d 924 (Miss.1978).

The decisions also display the breadth of the phrase “in the course of.” This phrase is satisfied whenever the injury resulted from activity which is (1) in its overall contours actuated at least in part by a duty to serve the employer, or (2) reasonably incidental to the employment. Incidental activities have been held to include such personal pursuits as cleaning teeth, smoking and procuring tobacco, and going to the telephone. Dunn, supra, at § 178 (2d Ed. 1967). In Collums v. Caledonia Mfg. Co., 237 Miss. 607, 115 So.2d 672 (1959), we permitted compensation for emotional upset resulting from an employee’s purchase of a bottle of soft drink containing a mouse. The purchase of soft drinks was without doubt “purely personal,” but being rationally connected with the employment, customary and expectable, compensation was allowed.

With respect to traveling salesmen in particular, “ ‘[t]he test in brief is this: If the work . . creates the necessity for travel, [the employee] is in the course of his employment, though he is serving at the same time some purpose of his own.’ ” Durr’s Dependents v. Schlumberger Oil Well Surveying Co., 227 Miss. 606, 614, 86 So.2d 507, 509 (1956). We recently held the activity of a traveling salesman is not to be lifted from the perimeters of his employer’s mission and viewed “in isolation” but must be viewed in its context, “as a whole.” E & M Motel Management, Inc. v. Knight, 231 So.2d 179, 182 (Miss.1979) (injury on stop to see grandchild held compensable, citing the “dual purpose” doctrine). When we view the present claimant’s conduct “as a whole,” we think it sufficiently within the contours of his employment to affirm the award notwithstanding the involvement of a third party intentional tort.

Mississippi Code Annotated section 71-3-3(b) (1972), provides in part:

“Injury” means accidental injury . arising out of and in the course of employment . . . and also includes an injury caused by the wilful act of a third person directed against an employee because of his employment while so employed and working on the job . [emphasis added].

The statute employs inclusive, not exclusive, language and mandates recovery for injury caused by a third party whenever it can fairly be said that the employee was injured “because of” his employment. The words “because of,” like the other broadly-construed words of causation with the act, such as “arising out of,” express the necessity of a nexus between the injury and employment. The base line is simply a rational connection of employment and injury. In Barry v. Sanders, 211 Miss. 656, 52 So.2d 493 (1951), although denying compensation, we held the issue of whether a claimant was assaulted “because of his employment, while so employed and working on the job,” was factual and to be determined by the commission.

We have few compensation cases involving third party intentional torts. A review of those which deny compensation reveals none which compel reversal in the face of Barry, supra.

We have held no rational connection exists where the intentional tort is the result of a personal vendetta as easily committed at the place of employment as elsewhere. In Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 626, 59 So.2d 294 (1952), we denied compensation where an irate husband killed an employee laundry man, suspecting him to be his wife’s paramour. Similarly, in Ellis v. Rose Oil Co., 190 So.2d 450 (Miss.1966), we denied compensation where the employee’s death resulted from his affair with a married woman. In another case denying compensation, a jilted suitor murdered the employee. West’s Est. v. Southern Bell Tel. & Tel. Co., 228 Miss. 890, 90 So.2d 1 (1956). See also Dewberry v. Carter, 218 So.2d 27 (Miss.1969) (record reveals the deceased scuffled and met his death as a result of outrage flowing from a “conversation” with his assailant “about this woman”; compensation denied). We agree with these cases in their holdings that no public policy would be served by compensating an injury or death originating with the employee’s personal indiscretions, whether real or fancied. Risks associated with such escapades cannot reasonably be viewed as risks associated with employment. This case, in contrast, involves no such “frolic.”

Barry, supra, we find distinguishable also. We there denied compensation on a record devoid of proof as to why the claimant, a traveling salesman, was assaulted between his car and his lodging upon returning from his evening meal. In sum, this Court has never denied compensation to an employee injured as a result of a good faith attempt to render aid to a stranger actively soliciting such aid at a place the employment required the employee to be.

We are of the opinion the following facts make this case one of first impression, to be decided as such: (1) no personal vendetta arising from the claimant’s activities motivated his injury; (2) the claimant violated no instructions concerning the manner in which the work was to be carried out; and (3) the stop by the roadside upon being flagged down involved no significant deviation either spacially or temporally from the delivery route. We think an employer may reasonably foresee that his traveling employee will stop to aid a distressed motorist when implored to do so. Such conduct is an acknowledged incident of being on the road. These distinctive aspects here deprive the following cases of controlling effect: Breland & Whitten v. Breland, 243 Miss. 620, 139 So.2d 365 (1962); Earnest v. Interstate Life & Accident Ins. Co., 238. Miss. 648, 119 So.2d 782 (1960); Collier v. Texas Construction Co., 228 Miss. 824, 89 So.2d 855 (1956); Persons v. Stokes, 222 Miss. 479, 76 So.2d 517 (1954); Kughn v. Rex Drilling Co., 217 Miss. 434, 64 So.2d 582 (1953).

Injuries resulting from similar well-intentioned humanitarian acts have been found compensable in other states. See, e. g., Baumann v. Howard J. Ehmke Co., 126 Pa.Super. 108, 190 A. 343 (1937). We note also that universally recognized, small, non-deviant charitable activities promote the employer’s interest and public relations. Larson, Workmen’s Compensation Law, § 27.22(b) (Cum.Supp.1979). Particularly is this true where, as here, the employer’s business includes the sale of rebuilt engines and parts, and the stop resulted from the signal of a distressed motorist.

In O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483 (1951), the claimant’s decedent, an employee of a government contractor, while waiting for his employer’s bus, saw two strangers off the coastline signaling for help. Disregarding signs forbidding swimming in the hazardous waters, he plunged into the channel and drowned in his rescue effort. The Court allowed compensation, stating, “[a]ll that is required is that the ‘obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose. ... A reasonable rescue attempt . . . may be ‘one of the risks of the employment, an incident of the service, foreseeable, if not foreseen, and so covered by the statute.’ ” 340 U.S. at 507, 71 S.Ct. at 472.

We follow O’Leary in favoring compensation for injury or death incurred in the aid of strangers rendered at a time and place within the contours of the employment, and agree with Larson that compens-ability follows when “ordinary standards of humanity” call for rescue. Larson, Workmen’s Compensation Law, § 28.00 (Cum. Supp.1979); see also Quinney v. Maryland Cas. Co., 347 So.2d 921 (La.App.1977); Carey v. Stadther, 300 Minn. 88, 219 N.W.2d 76 (1974); Reilly v. Weber Engineering, 107 N.J.Super. 254, 258 A.2d 36 (Cty.Ct.1969); Texas Employer’s Ins. Association v. Thomas, 415 S.W.2d 18 (Tex.Civ.App.1967); Graves v. Central Electric Power Cooperative, 306 S.W.2d 500 (Mo.1957); Noble v. Zimmerman, 237 Ind. 556, 146 N.E.2d 828, 832-33 (1957); Scott v. Rhyan, 78 Ariz. 80, 275 P.2d 891, 894 (1954); Edwards v. Louisiana Forestry Comm., 221 La. 818, 60 So.2d 449 (1952); Denton v. Young, 203 Okl. 688, 226 P.2d 406 (1950); Glen Falls Indemnity v. Sockwell, 58 Ga.App. 111, 197 S.E. 647 (1938).

We nevertheless emphasize, as does Larson, that not “every rescue of a stranger by an employee is covered; [the rule here endorsed] refers [only] to a rescue the necessity for [the] making [of] which is thrown in the claimant’s path by the conditions of the employment. When [, for example,] claimant is . . a . . driver who is certain to encounter collisions along the highway, it is easy to see the connection between the work and the contact with the emergency.” Larson, supra, at § 28.22. See Puttkammer v. Industrial Comm'n., 371 Ill. 497, 21 N.E.2d 575 (1939) (truckdriver’s injury received while carrying injured child across a road from scene of accident at which he stopped to render aid held com-pensable, the Court reasoning that it would be wholly illogical to compensate injuries received on stop for a drink of water, but not injuries received on stop made out of laudable humanitarian impulses).

We think the present claimant’s injury resulted from a humanitarian act which was literally thrown into his path because of his employment. Compare In Re D’Angeli’s Case, 369 Mass. 812, 343 N.E.2d 368 (1976), in which an employee returning from his employer’s mission stopped to remove a coil of wire from a lane of travel rather than taking an unobstructed course around it. He did so not “for” himself or employer, but rather for the safety of subsequent motorists on the road. In the process a car struck him, and the Court held the injury compensable. See also Toro v. 1700 First Avenue Corp., 12 N.Y.2d 1001, 239 N.Y.S.2d 130, 189 N.E.2d 625 (1963) (compensation awarded where repairman was fatally injured by unknown assailant for unknown reasons in house in which he was to repair boiler).

In conclusion, no Mississippi case compels a decision against compensation on this appeal. It is at least a “doubtful case,” and as such we affirm it in favor of compensation. In our opinion, injuries caused by third party intentional torts should be compensated whenever it can be fairly said that they occurred “because of” the employment. Such was the present case.

AFFIRMED.

ROBERTSON, P. J., and WALKER, LEE and BOWLING, JJ., concur.

SMITH, P. J„ and COFER, SUGG and BROOM, JJ., dissent.