(dissenting).
These compensation cases are compelling the Court to abandon, to a large extent, the fundamental rules of law which have been established through the centuries for determination of human rights between men. They have been a lamp unto our feet, and, for my part, I shall forsake them only as required by a validly enacted constitutional statute. However, in my view, the applicable principles, even under the Compensation Act, do not justify the conclusion reached in the majority opinion under the facts of this case. To say the least we have adopted the most extreme, or liberal, views of the courts of the country dealing with the questions.
In order to impose liability on an employer for damages the injury or death must arise “out of and in the course of employment, and includes * * * an injuiy 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.” Ch. 354, Sec. 2(2), Laws of Miss. 1948, and Ch. 412, Sec. 2(2), Laws of 1950.
I will first consider the effect of the first requirement as applied to the facts of this case. What is the test of liability under this provision? Schneider, often cited in the majority opinion, states the rule in these words: “As has already been indicated, it has been held quite uniformly that an injury arises out of the employment when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury”. Again “proximate cause may be defined as that force or cause which is primarily responsible for the disabilitjr which directly or indirectly flows from its acts or occurrences”. Further, “The fact that one is working at the time he is injured, and would not have suffered injury had he not been employed, does not show a causal connection between the employment and the injury, nor will a showing that the employment brought the party to the place where injured and that he *617would not have met with the accident elsewhere show a proximate causal relation between the employment and the injury”. “The risk must be reasonably incidental to the employment * * * There must be some connection between the injury and the employment other than the mere fact that the employment brought the injured party to the place of injury”. Schneider, Vol. 6, pages 7, 32 and 33.
In Schwartz v. Industrial Commission, 379 Ill. 139, 39 N. E. (2d) 980, 983, the court said: “A prerequisite to the right to compensation is that the accidental injury must arise out of, as well as occur, in the course of the employment, and the mere fact that the duties take the employee to the place of the injury and that, but for the employment, he would not have been there, is not, of itself, sufficient to give rise to the rig'ht to compensation. There must be some causal relation between the employment and the injury and the causative danger must be peculiar to the work and not common to the neighborhood”. A hundred cases might be cited in support of the foregoing propositions.
Now as to the facts: Watts’ working for the laundry simply afforded him an opportunity to meet and fulfill his rendezvous with Mrs. Garrett. The same opportunity, and a better one, would have existed had he been a paper hanger or a plumber working at the Garrett home, or a postman passing that way, or had Watts not been employed at all. There was no causal connection between his working for the laundry and being killed because of the illicit relations. The facts bring the case squarely within the stated rule that “# * * the mere fact that the duties take the employee to the place of injury and that, but for the employment, he would not have been there, is not of itself sufficient to give rise to the right of compensation”.
Did Garrett kill Watts because of his employment by the laundry? “Where the moving cause of an assault by a third party upon the employee is personal, or the *618circumstances surrounding tlie assault furnishes no basis for a reasonable inference that the attack ivas made because of the employment, compensation is denied”. 6 Schneider, p. 199, citing McConnell v. Lancaster Bros., 163 Tenn. 194, 42 S. W. (2d) 206. “It is not sufficient that the employment be an incident of the assault, such as the cause of one being at the place of the assault. Neither is it sufficient that the employment be an incident of the cause of the assault * * *. It must be the main cause of the assault to be compensable. ’ ’ “In other words, the assaulted employee must have been set upon by his assailant because he was an employee, or because of his employment, and not for some reason personal to the employee as an individual * * Schneider, supra, pp. 119, 199 and 200. There is not the slightest evidence in this record to support the conclusion that Garrett killed Watts because he was working for the laundry. Garrett had nothing against the laundry. Indeed he was its patron. He would have killed Watts just as quickly had he been a farmer, a merchant or a candlestick maker. He killed the man who was having relations with his wife — a tragedy which has been enacted a million times in the past and will be enacted a million more in the future. Whether Watts was employed or unemployed had nothing in the world to do with the act. As soon as Garrett was sure, from hearing the conversation between his wife and Watts that Watts was the guilty man, he killed him. He killed the man — not the launclryman.
Barry v. Sanders Co., Miss., 52 So. (2d) 493, was a much stronger case in favor of claimant than is the case at bar. In that case Barry was employed by Sanders as a door-to-door salesman on a commission basis, and, as a part of the agency agreement, was furnished by the employer a truck in which he carried the supplies and merchandise for delivery upon sale. About nine o’clock at night Barry had parked the truck at the Magnolia Inn, and had gone to his room in that Inn. *619He heard an outside noise as if someone were trying to break into the truck. He went out to the truck but finding no one there got into the vehicle and rode around in an effort to detect and identify the would-be intruder. Being unable to do that he proceeded to go to a restaurant for a meal. Upon his return to the Inn he was set upon by unknown assailants, beaten into unconsciousness and robbed of fifty-five dollars. The Commission, the lower court and this Court held Barry not entitled to compensation. The inference that the assault upon Barry was because of his employment, his assailants likely reasoning he had money upon his person resulting from that employment, was much stronger than any possible inference in this case that Garrett shot Watts because Watts was working for the laundry.
The majority opinion seemingly refused to accept as a fact that such relation existed between Watts and Mrs. Garrett. That would seem a rather desperate conclusion under the evidence here. It is undisputed that Watts had been in the habit, in the absence of Garrett, of parking his truck in front of, or near, the Garrett home and remaining in the home with Mrs. Garrett alone from thirty to forty minutes on the days he received from her the signal that the husband Avas not at home and the way was clear; one of the neighbors caught them in a compromising position; just prior to the shooting, Garrett heard Mrs. Garrett explaining to Watts why she could not then keep her tryst, and arranging for a future meeting. Mrs. Garrett testified under oath that the relation did exist; and, most conclusive of all, perhaps, was the undisputed fact that immediately after Watts was shot Mrs. Garrett, in the presence of her husband and others assembled there, spontaneously gathered Watts’ head into her lap and tried to comfort him as his soul was wafted to the Great Beyond, at the same time bitterly denouncing those she considered responsible for his death. And the fact that Garrett has never been indicted and tried for the homicide can be explained *620only upon the assumption the hilling was because Watts was. breaking up the Garrett home. There is no pretense in this record of any other reason for the shooting. How, then, can it be said the relation did not exist?
But, from a legal standpoint, it matters not whether such relation existed in fact or whether Garrett merely believed it was a fact. He killed Watts either because it was a fact and he believed it or he believed it and it was not a fact. In either case he did not shoot Watts because he was connected with the laundry. The employment had no bearing whatever in causing the act.
The majority opinion invokes the danger zone theory, and cites the opinion by Judge Rutledge in Hartford Accident & Indemnity Co. v. Cardillo, 72 App. D. C. 52, 112 F. (2d) 11. The case is not, or should not be, applicable here. The case is illustrative of an extreme view, and Schneider says “* * * these holdings represent and express a minority view not generally followed”. 6 Schneider p. 155. But the facts of that case are totally different from the facts of the case at bar. In that case Bridges, the claimant, was employed as a helper in a produce warehouse, along with other employees, and was engaged in loading vegetables onto his employer’s truck, under the direction of Roy Downey, a supervisor of the labor. Downey addressed Bridges as “Shorty”, and Bridges, in turn, called Downey a vile name, whereupon Downey struck Bridges. There may be some slight excuse for holding the employer liable in that case, since the place where Bridges was working brought him into close relationship with the other employees, each with his own personal traits, character, habits, disposition, and the fact that Downey was the aggressor and the injury to Bridges was the result of an attack by his immediate superior, and both were 'servants of the same master, although the conclusion is rather farfetched. But the case has no application to the facts of the case at bar. The route over which Watts was picking up clothing was in no wise a danger zone- — certainly, *621not in the sense there was danger that one so working would become intimate with the wife of some customer and the. husband would take his life. Had Watts been bitten by a vicious watchdog the danger zone theory might have had some application. That might be a risk incident to the employment, since it is generally known many people have such dogs about their homes. But what employer could anticipate an employee would bring about the situation here as an incident of the employment? All the cases allowing compensation under the danger zone theory stress the extraordinary and unusual apparent danger inherent in the discharge by the employee of his required duties, and that the claimant is the victim, not the participant. In the case at bar the zone was not dangerous. Whatever danger existed was produced by Watts himself. He was the danger zone.
To hold the laundry here liable in damages for the death of Watts is, in my humble opinion, a grave injustice, and the holding will plague us in the future.