Bartlett v. Duke University

200 S.E.2d 193 (1973) 284 N.C. 230

(Mrs.) Evelyn BARTLETT, Widow of Robert B. Bartlett, Deceased, Employee-Plaintiff,
v.
DUKE UNIVERSITY, Employer, and Glens Falls Insurance Company, Carrier, Defendants.

No. 8.

Supreme Court of North Carolina.

November 14, 1973.

F. Gordon Battle, Theodore H. Jabbs, James B. Maxwell, and Bryant, Lipton, Bryant & Battle, Chapel Hill, for plaintiff-appellee.

Newsom, Graham, Strayhorn, Hedrick, Murray & Bryson by Josiah S. Murray, III, Durham, for defendant-appellant.

SHARP, Justice:

Under the Workmen's Compensation Act plaintiff's right to recover compensation for the death of her husband depends upon whether it resulted from an "accident arising out of and in the course of his employment" by Duke University. G.S. § 97-2(6). As used in the Act the phrase, "in the course of the employment," refers to the time, place, and circumstances under which an accidental injury occurs; "arising out of the employment" refers to the origin or cause of the accidental injury. The two phrases involve two ideas and impose two conditions, both of which must be met to sustain an award. Sweatt v. Board of Education, 237 N.C. 653, 75 S.E. 2d 738 (1953).

Conceding arguendo that, from the time of his arrival in Washington on the morning of 12 March 1970 up to and including the time he accidently aspirated the kebab while dining at a restaurant that evening, Bartlett was in the course of his employment, the determinative question is whether a causal relation existed between his choking on the meat and his employment.

As we noted in Robbins v. Nicholson, 281 N.C. 234, 238-239, 188 S.E.2d 350, 354 (1972), "The term `arising out of the employment' is not susceptible of any all-inclusive definition, but it is generally said that an injury arises out of the employment `when it is a natural and probable consequence or incident of the employment and a natural result of one of its risks, so there is some causal relation between the injury and the performance of some service of the employment.'"

To have its origin in the employment an injury must come from a risk which might have been contemplated by a reasonable person familiar with the whole situation as incidental to the service when he entered the employment. The test "excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence." In re Employer's Liability Assurance Corporation, 215 Mass. 497, 499, 102 N.E. 697 (1913) (quoted with approval in Harden v. Furniture Co., 199 N. C. 733, 735, 155 S.E. 728, 729-730 (1930), and Robbins v. Nicholson, supra at 239 of 281 N.C., 188 S.E.2d 350, and in accord with other cases cited therein). See Cole v. Guilford County, 259 N.C. 724, 131 S.E. 2d 308 (1963).

Applying the foregoing test to the facts of this case, we hold that there was no causal relation between Bartlett's employment and his aspiration of the kebab. His day's work over and, business engagements scheduled for the morrow, he was having a leisurely evening meal at a public restaurant with an old friend, whom the trip to Washington had enabled him to visit. In this relaxed situation he put "a very large piece of meat" in his mouth. His friend "was of the opinion that it was too large, that he should have cut it in half but he consumed it anyway and immediately after he began to choke."

The risk that Commander Bartlett might choke on a piece of meat while dining at the Orleans House was the same risk to which he would have been exposed had he been eating at home or at any other public restaurant in the Washington area. Whether employed or unemployed, at home or traveling on business, one must eat to live. In short, eating is not peculiar to traveling; it is a necessary part of daily living, and one's manner of eating, as well as his choice of food, is a highly personal matter.

The National Safety Council of America estimates that 2,500 Americans choke to death on food each year, making food inhalation the sixth leading cause of accidental death. Understandably, however, few cases are reported in which claimants have sought compensation for the death of an employee, traveling on business for his employer, who choked to death while eating in a restaurant away from home. One such case, however, is Klein v. Terra Chemicals International, Inc., 14 Md.App. 172, 286 A.2d 568 (1972). In denying the widow's claim for workmen's compensation benefits, the Court of Special Appeals of Maryland said:

"That Klein choked on a piece of meat at a public restaurant while in the course of his employment with Terra Chemicals was not, in our opinion, the result of any obligation, condition, or incident of his employment; it did not occur because of any business activity attributable to his work. Klein's accident did not follow as a natural incident of his work, it was not, within reasonable contemplation, the result of any special exposure occasioned by the nature of his employment. Nor could it be traced to his employment as a contributing proximate cause; it did not flow from a hazard peculiar to his work, or incidental to the character of his employment. The risk he encountered in the public restaurant of choking on a piece of meat was no greater or different in degree because of his employment than the risk experienced by all persons engaged in the process of eating a meal, whether in a restaurant or at home.. . . In short, there was nothing in Klein's work, or in the conditions under which it was required to be performed, that caused his injury." Id. at 176-177, 286 A.2d at 570-571.

In Snyder v. General Paper Company, 277 Minn. 376, 152 N.W.2d 743 (1967), by a 4-3 decision (one member of the majority concurring specially), the Supreme Court of Minnesota held that the death of a traveling employee, caused by choking on a piece of meat in a hotel restaurant where the employee was entertaining a prospective customer pursuant to his employer's instructions, arose out of and in the course of the employment. Justice Nelson, speaking for the majority, said: "Workmen's compensation cases in this state indicate that an injury arises out of the employment if, after the event, it can be seen that the injury has its source in circumstances in which the employee's employment placed him." Id. at 383, 152 N.W.2d at 748. This broad generality is not the law in this jurisdiction.

On the contrary, the opinions of the three dissenting justices accord with the rationale upon which we decide this case: (1) There is no "causal relationship between choking on a piece of steak and the employment of decedent, even though he was eating while he was on the job." Id. at 389, 152 N.W.2d at 751. (2) Conceding that the decedent died while in the course of his employment, nevertheless, "the conditions of his employment had no bearing on the fact he choked to death. His injury resulted entirely from an unintentional but self-inflicted mishap. There is no evidence whatever that the choking was induced by any business activity." Id. at 390, 152 N. W.2d at 752. (3) To hold decedent's death compensable is either to "write out of the statute the essential factor that an accident must `arise out of' the employment or [to] set traveling salesmen apart for vastly more favorable treatment than is accorded other employees. This manifestly was not the legislature's intent." Id. at 393, 152 N.W.2d at 754.

The decisions cited by plaintiff which involve injuries sustained by an employee while walking or riding from his hotel to a restaurant, while eating on the employer's premises, or which result from eating tainted food at a place where the employer required him to eat, are not pertinent to the question we have decided here. See Thornton v. Hartford Accident & Indemnity Co., 198 Ga. 786, 32 S.E.2d 816 (1945); Tscheiller v. Weaving Co., 214 N.C. 449, 199 S.E. 623 (1938); 17 N.C. Law Rev. 458 (1939); 1 Larson, Workmen's Compensation Law, §§ 25, 25.21 (1972); Annots., 6 A.L.R. 1151 (1920); 57 A.L.R. 614 (1928).

In our view the unquestioned facts compel the conclusion that the accident which caused Commander Bartlett's untimely death did not arise out of his employment. The decision of the Court of Appeals is reversed with directions that it remand the cause to the Industrial Commission for the entry of an award in accordance with this opinion.

Reversed.