This is an appeal from a judgment entered at the conclusion of plaintiff's case, denying workmen's compensation to which appellant claims to be entitled by reason of the death of Thelma L. Ensley allegedly arising out of and in the course of her employment. The appellant is the thirteen-year-old daughter of decedent.
There is no real dispute as to the facts. When killed, Thelma L. Ensley was employed by W.R. Grace and Company as a bookkeeper. One Ike Rodgers was employed by the same company as manager of its Las Cruces store. Although Mrs. Ensley generally returned home from work at about 5:30 P.M., on the day of her death she did not. At about 6:00 P.M., Ike Rodgers was seen standing in his office behind a desk. Between 8:30 P.M. and 9:00 P.M., the bodies of both Mrs. Ensley and Mr. Rodgers
Based on these facts, the court found that the accident and death of Mrs. Ensley did not arise out of her employment, and that evidence was not produced to establish a causal connection between the death and the employment. These determinations are here attacked.
That the death occurred in the course of employment is conceded, but it is strenuously urged that it did not arise out of the employment. Our statute, § 59-10-13.3, subd. A, N.M.S.A. 1953, provides that, "claims for workmen's compensation shall be allowed only: (1) when the workman has sustained an accidental injury arising out of, and in the course of his employment; * * *." Concerning these terms and their application, we said in Berry v. J.C. Penney Co., 74 N.M. 484, 394 P.2d 996:
We note the statement that "the accident must result from a risk incident to the work itself." Does this mean that if a person is working at a place where no guns or dangerous instrumentalities are present, injuries or death resulting from being shot or otherwise injured are not to be compensated because not arising out of a "risk incident to the work itself"? In Walker v. Woldridge, 58 N.M. 183, 268 P.2d 579, the statement is made that for an injury to arise out of employment, it "must be reasonably incident to the employment" or must "flow therefrom as a natural consequence."
Larson, in his work on Workmen's Compensation, Vol. 1, § 7.00, places "risks" in three categories, viz., those associated with the employment, those personal to the claimant, and those having no particular employment or personal character, which he calls "neutral." He states accidental injuries in the first class are universally compensable. Houston v. Lovington Storage Company, 75 N.M. 60, 400 P.2d 476, is of this class. Injuries in the second category are universally noncompensable. Berry v. J.C. Penney Co., supra, and Luvaul v. A. Ray Barker Motor Company, 72 N.M. 447, 384 P.2d 885, are of this character. It is in connection with the third class that most controversy occurs and difficulties are presented. Whitehurst v. Rainbo Baking Company, 70 N.M. 468, 374 P.2d 849, is of this class. Larson states that, "the view that the injury should be deemed to arise out of employment if the conditions of employment put claimant in a position to be injured by the neutral risk is gaining increased acceptance." In § 7.30, he states:
Larson further states, in §§ 11.00 and 11.33:
In our view of the instant case, we have a situation where decedent met her death by reason of an unexplained assault on her by her co-employee while she was at work at her usual place of employment. In the circumstances, and under the proof, we think the following language in Houston v. Lovington Storage Company, supra, is pertinent:
With regard to such a situation, Larson states:
See also, Medina v. New Mexico Consolidated Min. Co., 51 N.M. 493, 188 P.2d 343.
Thus, it can be seen that the occurrence having transpired under circumstances such as are here present, authority and reason support the application of a rebuttable presumption that death arose out of the employment. When the reason or cause for the accident is not explained, and it occurred during the time decedent was at work, the fundamental theory underlying our workmen's compensation law favors recovery rather than denial of compensation. In the instant case, Mrs. Ensley lost her life while engaged in her employment as a result of being shot by her co-employee for unexplained reasons and, as the evidence of record in no way serves to rebut the presumption that death arose out of her employment, we conclude that the trial court erred in finding that death did not arise out of the employment. As examples of similar cases, we direct attention to McClean's Case, 323 Mass. 35, 80 N.E.2d 40; Casualty Reciprocal Exchange v. Johnson (C.A.5, 1945) 148 F.2d 228; Crotty v. Driver Harris Co., 45 N.J.Super. 75, 131 A.2d 578.
This is not a situation where claimant failed to establish that decedent sustained an accidental injury in the course of and arising out of his employment as is required to sustain a recovery. Clower v. Grossman, 55 N.M. 546, 237 P.2d 353. Neither is it a case involving findings based upon conflicting evidence, as were Grisham v. Nelms, 71 N.M. 37, 376 P.2d 1, and Utter v. Marsh Sales Company, 71 N.M. 335, 378 P.2d 374. Rather, it involves a question of law as to whether, under the uncontradicted proof here present, the trial court could properly find at the close of plaintiff's case that the employee's death did not arise out of her employment. As already noted, in our view, the court could not do so. We said nothing in Brundage v. K.L. House Construction Company, 74 N.M. 613, 396 P.2d 731, requiring a contrary holding.
This case differs from Ward v. Halliburton Company, 76 N.M. 463, 415 P.2d 847, in that here there is no proof that deceased was guilty of any wrongful act such as was present in the Ward case wherein Ward had himself introduced the lethal weapon into the employer's premises and risk therefore was "personal" to the employee. The present case more nearly approximates the situation in Joe Ready's Shell Station & Cafe v. Ready, 218 Miss. 80, 65 So.2d 268, where it was held that an accident resulting from being shot by a gun, introduced to the place of employment by a third person arose out of the employment. Of course, that was not a case of unexplained injury, but we perceive of no reason for a different rule where there is an absence of direct proof of cause. To the contrary, Houston v. Lovington Storage Company, supra, requires a finding of causal connection.
In our view, the decision of this court in Perez v. Fred Harvey, Inc., 54 N.M. 339, 224 P.2d 524, presaged this result. That case involved a shooting of claim—and by a co-worker. The court held that there could be no recovery if the shooting resulted "from purely personal motives such as the distorted love affair testified to by the assailant * * *." On the other hand, if the shooting and injuries came about because of a "quarrel having a causal relationship to the work" of the parties,
It follows from what has been said that the trial court erred in denying recovery at the close of claimant's case; the judgment is accordingly reversed, and the cause remanded with instructions to grant a new trial.
It is so ordered.
COMPTON, J., and LaFEL E. OMAN, Judge, Court of Appeals, concur.