
    Samson ADDY, surviving dependent spouse of Annie Addy; et al., v. PROFESSIONAL BUSINESS OWNERS ASSOCIATION WORKERS’ COMPENSATION FUND and Piknik Products Company, Inc.
    2001030.
    Court of Civil Appeals of Alabama.
    June 7, 2002.
    
      William P. Traylor III of Yearout, Myers & Traylor, P.C., Birmingham, for appellants.
    Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellees.
   YATES, Presiding Judge.

Professional Business Owners Association Workers’ Compensation Fund and Piknik Products Company, Inc. (hereinafter collectively referred to as “Piknik”), sued Samson Addy, as the surviving spouse of Annie Bibb Addy, and their minor children, on July 15, 1996, seeking a judgment declaring whether Annie’s shooting death was a compensable injury, and, therefore, whether Piknik is responsible for the payment of death benefits under the Workers’ Compensation Act. Samson Addy, individually, and on behalf of his minor children (Samson and the children are hereinafter referred to as “the depen-dants”), answered and counterclaimed on December 18, 1996, seeking workers’ compensation death benefits pursuant to §§ 25-5-60 and -61, Ala.Code 1975. On February 29, 2000, the parties jointly moved to submit the case to the trial court on a stipulation of facts and submission of evidentiary materials. On June 1, 2001, the trial court entered an order finding that Annie’s shooting death did not arise out of and in the course of her employment and it denied death benefits to her dependents. The dependents appeal.

This case is governed by the 1992 Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975. This Act provides that an appellate court’s review of the standard of proof and its consideration of other legal issues shall be without a presumption of correctness. § 25 — 5—81(e)(1), Ala.Code 1975. It further provides that when an appellate court reviews a trial court’s findings of fact, those findings will not be reversed if they are supported by substantial evidence. § 25-5-81(e)(2). Our supreme court “has defined the term ‘substantial evidence,’ as it is used in § 12-21-12(d), to mean ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996), quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). This court has also concluded: “The new Act did not alter the rule that this court does not weigh the evidence before the trial court.” Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995).

At the time of the shooting on May 28, 1996, Annie had been employed at Pik-nik for six years as a machine operator. She was 31 years old, married, and had three minor children. Addie was shot and killed by Richard Flowers while she was sitting in her car at the Piknik plant during a scheduled break. Flowers confessed to Annie’s murder and was subsequently convicted of the crime. Flowers was a temporary employee assigned to work at Piknik by Teamwork Temporary Services. When Flowers was hired by Teamwork, its president, Abby Fleming, was aware that he had been convicted of manslaughter and that he had recently been released from prison. Flowers had been convicted in 1980 for beating a person to death with a shovel. Fleming testified that Teamwork had made Piknik aware of Flowers’s criminal history and that Flowers himself had also informed Piknik of his criminal history.

Flowers was not on duty on the day of the shooting and had, in fact, not worked for several days preceding the shooting. Flowers had worked the second shift at Piknik with Annie; however, earlier on the afternoon of May 28, he was informed by Eddie Windham, the production supervisor, that he was being transferred to the first shift. Windham testified that Flowers was being transferred to first shift because he needed more supervision and that more management personnel worked on the first shift. The transfer was based on Flowers’s behavior on the second shift. Herb Jordan, Annie and Flowers’s immediate supervisor on the second shift, testified that he had counseled Flowers about his loud and boisterous behavior, his nonprofessional behavior, and his use of profanity. Jordan testified that on one occasion Flowers directed a profanity-laced outburst at Annie. Jordan also testified as to another occasion in which Flowers became loud and directed profanity toward him when he tried to get Flowers to corn-píete an accident report. Windham stated that he told Flowers to return to the plant the next morning to begin work on the first shift and that Flowers agreéd to do so.

After the discussion with Windham, and before the shooting, Flowers was seen in the break room by Robert Taylor, a Piknik employee. Taylor stated that Flowers was “talking and cutting up with” other Piknik employees. Taylor stated that Flowers had told him that he was going to start working the first shift; that he appreciated having a job at Piknik; and that Flowers asked him if he had seen Windham. Taylor stated that he saw Flowers leave the building and that he later saw Annie leave the building through another door.

Albert Love,- another employee at Pik-nik, testified that just minutes before the shooting occurred Flowers told him that “they had put him on first shift” and that he had “no hard feelings with no one.” Love stated that as he and Flowers talked, Annie walked passed and spoke and that they'spoke to her. He stated that Annie left the building at the main entrance and that Flowers headed toward the exit at the maintenance boiler room. Approximately five minutes later, Flowers shot Annie multiple times as she sat in her car in the Piknik parking lot.

This court has stated:

“It is [well] settled that a willful assault by a coemployee may be considered an accident compensable under the Alabama workers’ compensation statute. However, the fact of a willful assault alone does not conclusively establish that the assault arose out of the course of the employee’s employment. That conclusion must be drawn from the circumstances of the case. An assault that is based solely upon personal ill will, hatred, or anger does not arise out of and in the course of the employment. To justify workers’ compensation for injuries caused by an assault by a coem-ployee, the rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment, and not by some other agency.”

Beverly v. Ruth’s Chris Steak House, 682 So.2d 1360, 1362 (Ala.Civ.App.1996) (citations omitted).

Karen Hardt Branton, the personnel manager at Piknik, gave. a statement to the police indicating that the week preceding the shooting Annie had complained to her about “horseplay” on the second shift and had named Richard Flowers as a participant. Branton also testified in her deposition that Annie had complained to her about people leaving work early on one occasion to attend a party and complained that Jordan, the supervisor on the second shift, demonstrated partiality toward certain employees on that shift. Branton investigated the complaint and notified both Windham and Jordan that a complaint had been made. Jordan was asked to follow up on the complaint with the employees who allegedly left work early but not to use Annie’s name as the person who had made the complaint. In her statement to the police, Branton stated that on the day of the shooting she spoke with Annie and that Annie was upset because Branton had told “everybody in the plant about her complaint.” Branton testified in her affidavit that Annie was afraid to come to work.

Latrice Williams worked on the second shift with both Annie and Flowers. She testified in her affidavit that Flowers had had problems with Annie and that they had argued about work-related issues. She stated that sometimes Flowers would not like.the way Annie was doing her job or operating a machine and he would get upset with Annie. Williams testified that she knew Annie had made a complaint about Flowers and that she heard Flowers state on the day of the shooting that he was “going to get that bitch, Annie [Addy], Ms. Brown and Eddie Windham.”

Detective Derrick Cunningham testified in his deposition that he had taken a statement from Flowers regarding the shooting in which Flowers told him that Annie had complained to management that he was “horseplaying,” “partying,” and “having fun” on the second shift rather than working. Detective Cunningham further stated in his deposition that Flowers had told him that he and Annie had had an argument and that he thought that was the reason he had been transferred to another shift.

It is undisputed that Flowers brutally murdered Annie as she sat helplessly in her automobile while on break at the Pik-nik plant. Annie and Flowers had argued about work-related issues, and Flowers had become upset with Annie. Annie had complained to management about Flowers’s conduct and Flowers knew that Annie had done so. Flowers stated that it was his belief that he was being transferred to the first shift because of an argument that he had had with Annie. Finally, on the day of the shooting Flowers had threatened to “get that bitch Annie [Addy].” After reviewing the record, we conclude that Annie’s dependents presented substantial evidence from which the rational mind could trace Annie’s shooting death to a cause set in motion by her employment.

Accordingly, the judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

CRAWLEY, J., concurs.

THOMPSON and MURDOCK, JJ., concur in the result.

PITTMAN, J., dissents.

PITTMAN, Judge,

dissenting.

I conclude that the trial court’s judgment finding that Add/s shooting death was not a work-related injury is supported by substantial evidence; therefore, I dissent.

The dependents and the employer submitted the ease to the trial court on a stipulation of facts (contained in various evidentiary submissions by both parties) and further stipulated that the only issue for the trial court to decide was whether the employee’s death occurred in the line and scope of her employment. As stated above, the trial court held that the employee’s death did not occur in the line and scope of her employment. After reviewing the record, I would adopt the trial court’s finding of facts as follows:

' “On or about May 28, 1996, [the employee] was tragically shot and killed while on her break at the Montgomery plant of Piknik Products Company. Richard Flowers, a temporary employee assigned to work at Piknik by Teamwork Temporary Services, confessed to committing the murder and was subsequently convicted of that crime. Although unknown to Piknik at the time, Flowers had recently been released from prison following a prior conviction for murder after beating a person to death with a shovel. At the time of the shooting Flowers was not on duty at Piknik, and he had been off duty for several days prior because of an injury and a company holiday. Although Flowers previously had worked on the second shift, which was the same shift [the employee] worked, he had been transferred to first shift by the Production Supervisor, Eddie Windham. Flowers was informed of this change earlier in the afternoon of May 28. The transfer was precipitated by a report that" Flowers had gotten into an argument with his supervisor on second shift, Herb Jordan, during which Flowers had used offensive language. Because of this ' incident, Windham decided to move Flowers to [first] shift, where there was more management support. After being informed of the shift change, Flowers was instructed to return to the plant on the morning of the. next day to be'gin working first shift. .Flowers then left the Piknik premises.
“Later that evening, Flowers returned to Piknik. Robert Taylor, Piknik’s Sanitation Supervisor, saw Flowers in the break room, talking and cutting up with Piknik employees. Taylor spoke with Flowers at that time, and Flowers related to Taylor that his shift had been changed and that he would start working first shift the next day. Flowers stated that he appreciated having a job at Piknik. Flowers then asked Taylor if he had seen Eddie Windham. Taylor told Flowers that he had not seen him. At that time, Flowers seemed to be in a good mood and looking forward to starting his shift the next day. Taylor saw Flowers leave the building. He later saw [the employee] leave the building through another exit. Another employee, Albert Love, who was possibly the last person to speak to Flowers prior to the shooting, testified that he had never heard of any problems between [the employee] and Flowers nor had he heard anyone complain about Flowers on the job. Only minutes prior to the shooting Love said that Flowers ‘shook, my hand, gave me five’ and said that he ‘had no beef ... no hard feelings with no one’ and that ‘they put him - on first shift.’ Love stated that Flowers then told him that he was ‘fixing to go’ and, about that time, [the employee] ‘walked up to the ramp and she spoke and we spoke, and he (Flowers) went down the ramp.’ According to Love, Flowers did not follow [the employee] out of the building directly; instead, he went in another direction towards the maintenance boiler room door and she exited through the main entrance. Love did not actually see Flowers exit the building, however, approximately ‘five minutes’ later, Flowers shot [the employee] numerous times while she was seated in her car, on break, in the company parking lot.”

Section 25-5-1(9) defines “injury” as:

“only injury by accident arising, out of and in the course of fhe employment. ... Injury does not include an injury caused by the act of a third person or a fellow employee because of reasons personal to him or her and not directed against him or her as an employee or because of his or her employment.”

This portion of § 25-5-1(9) has been interpreted as follows:

“It is settled that a willful assault by a coemployee may be considered an accident compensable under "the Alabama workers’ compensation statute. However, the fact of a willful assault does not conclusively establish that the assault arose out of the course of the employee’s employment. That conclusion must be drawn from the circumstances of the case. McGaughy v. Allied Products Co., 412 So.2d 803 (Ala.Civ.App.1982). An assault that is based solely upon personal ill will, hatred, or anger does not arise out of and in the course of the employment. Thompson v. Anserall, Inc., 522 So.2d 284 (Ala.Civ.App.1988). To justify workers’ compensation for injuries caused by an assault by a coemployee, the rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment, and not by some other agency. Tiger Motor Co. v. Winslett, 278 Ala. 108,176 So.2d 39 (1965).”

Beverly v. Ruth’s Chris Steak House, 682 So.2d 1360, 1362 (Ala.Civ.App.1996).

The dependents argue that they presented evidence that Flowers shot and killed the employee because the employee had reported Flowers’s misconduct on the job to their supervisor, who then moved Flowers from the second shift to the first shift. The employer filed a motion to strike several evidentiary submissions submitted by the dependents which the employer contended contained hearsay about the employee’s role in having Flowers moved from the second shift to the first shift. The trial court did not explicitly grant the motion to strike; however, in its judgment holding that the employee’s shooting death was not in the line and course of her employment, the trial court did state:

“[The dependents] attempt to establish a potential causal connection by referencing certain statements that constitute hearsay, hearsay within hearsay, or which reflect speculation and lack of personal knowledge. This Court finds that such statements are not admissible, credible evidence. Morever, this Court further finds that, even if admissible, such statements would not support a finding that [the employee’s] employment set in motion the proximate cause that resulted in [the employee’s] tragic death.”

As shown above, the trial court disregarded the evidence that the dependents sought to admit which attempted to causally relate the shooting with the employee’s employment. I conclude that the trial court did not err by disregarding that evidence. The dependents do not argue on appeal that the trial court erred by stating that the evidence was inadmissible hearsay. Therefore, I would affirm the trial court’s judgment. 
      
      . This case was originally assigned to another judge on this court; it was reassigned to Presiding Judge Yates on May 7, 2002.
     
      
      . The evidence is disputed as to why Flowers had not been at work for several days preceding the shooting. Fleming testified that she had terminated Flowers from Teamwork Temporary for insubordination to his supervisor at Piknik and that Piknik had asked that Flowers not be sent back to work there. A note entered in the Teamwork Temporary files on Flowers indicates that he had been terminated, but allowed to return to work on a different shift. Karen Hardt Branton, the personnel manager at Piknik, stated in her affidavit that Flowers had been absent from work because of an injury he had suffered and a company holiday.
     
      
      . This testimony is admissible under Rule 803(3), Ala. R. Evid., to show Flowers’s then existing stale of mind, such as intent, plan, or motive.
     