
    WESTERDAHL v. STATE INS. FUND et al.
    No. 3811.
    Decided June 29, 1922.
    (208 Pac. 494.)
    Master and Servant — Shooting of Employé Purchasing Cigar During Robbery Held not Compensable as Injury “Arising out of and in Course of Employment.” Death, of a mine superintendent shot by bandits at midnight when he entered a store to purchase a cigar during the progress of a holdup held not compensable as an accidental “injury arising out of or in the course of employment” defined by Comp. Laws' Utah 1917, § 3112, as amended by Laws Utah 1921, c. 67, § 1, to include an injury caused by the willful act of a third person directed against an employé because of his employment, the shooting having no causal connection with his employment, which required him to be ready at all times to answer calls to duty.
    Proceeding under the Workmen’s Compensation Act by Elizabeth Westerdahl to recover compensation for the death of her husband, John Westerdahl, employé, opposed by the Tintie Standard Mining Company, employer, and the State Insurance Fund. Compensation was denied, and claimant brings writ of review.'
    AFFIRMED.
    
      Dm BÍ Shields, of Salt Lake City, for plaintiff.
    
      HoA-vey Cluff, Atty. Gen., and J.. Robert Robinson, Asst. Atty. Gen., for defendants.
   FRICK, J.

Tbe plaintiff, as tbe widow of one John Westerdahl, deceased, made application to tbe Industrial Commission, hereinafter called Commission, pursuant to tbe provisions of our Industrial Workmen's Compensation Act, for compensation as provided in said act. Tbe Commission, after a bearing upon tbe merits, denied plaintiff’s application. She applied for a rehearing, which was denied, and, in pursuance of tbe provisions of said act, she has caused tbe record of tbe proceedings bad before tbe Commission to be certified, to this court, and asks us to review said proceedings.

Tbe principal grounds urged against tbe decision of tbe Commission are that “in making such decision said Industrial Commission exceeded its power and authority,” and that tbe same “is arbitrary and against tbe law and tbe facts. ’ ’

Tbe facts are not in dispute, and are free from complication. After bearing the evidence a majority of the Commission found that tbe deceased, at the time of bis death, was “regularly employed by tbe Tintic Standard Mining Company as mine superintendent”; that bis “duties embraced the general supervision of tbe Tintic Standard Mine and all other property of tbe company at Dividend, Utah; that he bad no regular hours of employment, but was required to be ready at all times to answer and perform any and all duties that might be required of him; that at 11:45 p. m. of March 9, 1921, be was killed by the willful act of a third person during tbe progress of a holdup in tbe store of J. H. Manson as be (Westerdahl) - entered tbe store for tbe purpose of purchasing a cigar; that tbe gunshot which caused tbe death of John Westerdahl was not directed against him by tbe willful act of tbe bandit because of bis employment; that at tbe time of the accidental injury, to wit, tbe gunshot wound, Westerdahl was not performing any service in tbe interest of his employer but was on a personal mission, to wit, tbe purchase of a cigar.” After finding the salary that tbe deceased received for bis services, and that no compensation bad been paid to tbe plaintiff, and finding tbe other jurisdictional facts, tbe Commission found as conclusions of law that, by reason of tbe foregoing facts, tbe death of tbe deceased was caused “by tbe willful act of a third person during tbe progress of a holdup,” and that tbe act causing tbe death of the deceased “was not directed against him because of bis employment.” Tbe Commission therefore denied plaintiff’s application for compensation.

Tbe evidence is clear, explicit, and beyond dispute that on the night tbe deceased was killed be bad just entered tbe store of one J. H. Manson; that be went into tbe store to obtain a cigar for bis own use; that as be entered tbe store a “holdup” was in progress, and that all of tbe men in tbe store at tbe time had, by tbe bandits, been ordered to raise their bands; that immediately after entering tbe store the deceased was also ordered to “throw up” his bands; that be did not fully realize or appreciate just what was going on, but apparently assumed that what the men were doing in the store was a “false” or “staged” holdup, and did not at once comply with tbe order to throw up bis bands; that immediately afterwards tbe deceased, for some reason not made very clear, was shot and fatally wounded by one of tbe bandits, and at about tbe same time several others were also shot by some of the bandits. Tbe evidence is also clear that tbe Tintie Standard Mining Company, tbe employer of tbe deceased, bad no interest in the store or in its operation or maintenance, but tbe same was owned and operated by said J. H. Manson for his own use and benefit. Tbe men working in tbe mine, including tbe deceased, would, however, frequently congregate in tbe store in the evening,'as was done at tbe time in question. Tbe deceased did not know that a crime was about to be or was being perpetrated, and be entered tbe store for tbe sole purpose indicated in tbe findings. It is therefore clear that tbe bandits were all strangers to tbe deceased, and, so far as tbe evidence disclosed, be bad never seen any of them before, and bad no trouble or altercation of any kind or nature with them or any of them.

Tbe conclusion of tbe Commission is therefore irresistible that tbe act of tbe bandit who shot and killed tbe deceased was not and could not have been directed against him “because of his employment.”

Plaintiff’s counsel, however, with much vigor contends that under our statute compensation is to be made in all cases where an employe sustains an injury by accident which arises “out of or in the course of employment.” He insists that the deceased was injured in the course of his employment, and hence those who were dependent upon him at the time of his death for support, to wit, the plaintiff and her minor child, are entitled to be compensated under the provisions of our Workmen’s Compensation Act. In making the foregoing contention counsel, it seems to us, entirely overlooks a very material provision of our statute. Comp. Laws Utah 1917, § 3112, as amended by chapter 67, Laws Utah 1921, clearly defines when a personal injury is compensable under the act in case the injury is caused by the willful act of a third person. Where an injury is caused by the willful act of a third person compensation can be awarded only in case the willful act causing the injury is “directed against an employe because of his employment.” By keeping in mind the undisputed facts of this case, it seems very clear that the injury inflicted by the bandit upon the person of the deceased had no, and could have had no, connection with the employment of the deceased. The bandits and the deceased were total strangers, and never had come in contact with each other, and hence, so far as the evidence disclosed, the shooting had no causal connection with or relation to the deceased’s employment. In order to recover for an accidental injury there must be some causal connection or relation between the act causing the injury and the employment or the duties of the injured employé.

This case falls squarely within the principle announced in the case of Spring Canyon Coal Co. v. Ind. Com., 58 Utah, 608, 201 Pac. 173, and hence is controlled by the decision in that case. See, also, Marion C. & C. Co. v. Ind. Com., 292 Id. 463, 127 N. E. 84; Chicago v. Ind. Com., 292 Ill. 406, 127 N. E. 49, 15 A. L. R. 586; State v. District Court, 140 Minn. 470, 169 N. W. 555, 15 A. L. R. 579. The three cases last cited all relate to injuries inflicted by willful acts of third persons, and in all of them it is held that, under, a statute less restrictive than ours, the injuries are not compensable within the purview of the "Workmen’s Compensation Act. This court has gone as far as any court in protecting employes and their dependents. To hold that injuries arising out of accidents like the one in question here are compensable under our Workmen’s Compensation Act would require us to go far beyond both the letter and the spirit of our act. The law should be given a liberal construction and application in all cases where the accidental injury comes within the letter or spirit of the act. It should, however, not be construed and applied so as to authorize compensation for injuries which are not intended to be covered by the act.

But one conclusion is permissible, and that is that the decision of the Commission, in view of the undisputed facts, is clearly right, and it is therefore affirmed, with costs.

CORFMAN, C. J., and WEBER, GIDEON, and THURMAN, JJ., concur.  