Summary
during lunchtime, employee was operating machine of employer, who was toy manufacturer, to fashion checkerboard for own use
Summary of this case from N.E. Telephone Co. v. AmesOpinion
No. 4866.
Argued October 4, 1960.
Decided October 28, 1960.
1. An injury suffered by a workman at his place of employment while operating the employer's machinery to fashion a checkerboard for his own use during his lunch hour was properly found to have arisen out of and in the course of his employment within the meaning of the workmen's compensation law (RSA 281:2 III) where the workman could reasonably infer that such practice was not only known to the employer but that it was consistent with customary practice and encouraged as a condition of the employment.
APPEAL, to the Superior Court under the Workmen's Compensation Law (RSA 281:37) from a decision of the Commissioner of Labor denying compensation to the plaintiff. On October 9, 1957, the plaintiff suffered permanent injury to his left eye while engaged at his place of employment during the noon lunch hour in operating a table saw to manufacture a checkerboard for his own use. Trial by the Court (Sullivan, J.) with a decree for the plaintiff.
The Court found that the plaintiff "had never been told not to use any machine for personal use during the noon hour" and that "for several months prior to . . . the accident" such use had been made by employees who ate their lunch at the factory. The Court further found "it was a custom or practice [for such employees] . . . to use their employer's machines during the lunch hour for individual projects," and that the defendant employer "had through the knowledge of its owner, Mr. Brown, and that of a supervisory employee, Mr. Abbott, notice of this practice or custom." The Court ruled that the plaintiff's injury was suffered in the "course of" and "arose out of his employment" by the defendant. The defendant excepted to the findings and rulings and to the denial of its motion to set aside the decree and grant a new trial.
The defendant corporation was engaged in the manufacture of water skis, games, toys, organ parts and other wood products and employed eight men. The plaintiff had been in its employ for seven months. The evidence tended to establish the following facts: The plaintiff had been hired as an "all around" employee "to do all kinds of different jobs." In the course of his employment he had learned to operate a swing saw, a moulder, a clipping saw, and a sander but had never before used the table saw upon which he was injured.
The superintendent of the shop was president, treasurer and principal stockholder of the corporation. His office adjoined the shop and at times he himself worked in the shop. The shop foreman customarily had his lunch away from the shop and a "straw boss" Mr. Abbott, was in charge in his absence. Four or five employees usually ate lunch on the premises and the machines were used by such employees during the lunch hour, both for overtime work for the defendant and for projects of the individual employees themselves, who would make jewelry boxes, cribbage boards and handles for water skiing, using the machines daily until a project was finished. If occasion arose such employees customarily helped employees working for the defendant during the lunch hour. An employee named Levesque testified that he had made jewelry boxes during the noon hour as well as many cribbage boards which the shop foreman had varnished for him and which were given to veterans' hospitals. He assisted the plaintiff in setting up the saw in use when the accident occurred, after another employee had finished using it.
The straw boss was in the shop at the time, saw the plaintiff using a planer during the noon hour and spoke to him while he was working on the checkerboard to find out what he was doing. He did not prohibit use of the machine for the purpose and testified that he himself had occasionally used a planer for his own purposes during the noon hour.
Mr. Brown, the owner, testified that in 1956 use of the machinery for making cribbage boards "became burdensome" when he "found these boards lying all over the shop" and that he had asked the foreman and subforeman to "request" the men to stop using the electricity, machinery and equipment at noon. The evidence was, however, that the plaintiff had never been forbidden use of the machinery for his own purposes and that no written notice forbidding such use was ever posted. The power which operated the machinery was never turned off at noon. The plaintiff testified that in a telephone conversation with Mr. Brown after the accident, Mr. Brown told him that he advised his insurer that he "had always allowed [his] help to use the machines during the noon hour."
The case was reserved and transferred by the Presiding Justice upon the defendants' exceptions.
Harold E. Wescott and Peter V. Millham (Mr. Wescott orally), for the plaintiff.
Sullivan Gregg and Sherman D. Horton, Jr. (Mr. Horton orally), for the defendants.
The exceptions in this case present the issue of whether upon the record the plaintiff's injury could properly be found to have arisen out of and in the course of the employment. RSA 281:2 III.
It is undisputed that when the plaintiff was injured he was engaged in a project of his own, upon his own time, during his noon lunch hour. He was, however, on his employer's premises, and using his employer's machinery, electricity, and stock, in an enterprise which had never expressly been forbidden to him, but on the contrary could be found consistent with customary practice, and impliedly sanctioned on the particular occasion by his immediate superior then in charge of the plant.
The evidence was that the plaintiff was hired to work as an "all around man . . . to do all kinds of different jobs," and it could be found that he reasonably understood that he was expected to become familiar with the operation of the various machines in the establishment. There was evidence that employees were expected, upon request, to work for the employer during part of their lunch hour, or as occasion arose to assist other employees so engaged.
In short, it could be found that although the plaintiff was not required to remain at his workplace during the noon hour, by voluntarily doing so he continued to be subject to the control of his employer; and that he was injured as a result of defective equipment furnished and controlled by the employer, which he reasonably understood he might use for the purpose for which he was using it.
It is settled in this jurisdiction that activities of a personal nature, not forbidden, but reasonably to be expected, may be a natural incident of the employment, so that injury suffered in the course of such activities is compensable. Whitham v. Gellis, 91 N.H. 226. See also, Perkins v. Company, 91 N.H. 211, 212. The fact that the injury is suffered during the noon hour when the employee is not required to be on the premises, does not alter this principle. Gallienne v. Company, 88 N.H. 375, 380. The controlling issue is whether the activity is reasonably expectable, so as to be an incident of the employment, and thus in essence a part of it. Newell v. Moreau, 94 N.H. 439, 445.
In the circumstances disclosed by the record, the finding and ruling that the plaintiff's injury "arose out of" his employment was warranted, since the injury resulted from a risk to which the plaintiff's employment subjected him. Zwiercan v. Company, 87 N.H. 196; Maltais v. Assurance Society, 93 N.H. 237, 241; Walter v. Hagianis, 97 N.H. 314. See 1 Larson, Workmen's Compensation Law, s. 6.00.
The further finding and ruling that the injury occurred "in the course of" the plaintiff's employment was also warranted by the record. "While engaged in employment an employee's conduct in matters of a personal nature reasonably to be undertaken and not expressly forbidden is as much in the course of the employment as when he is actually performing the work of the employment, and accidents sustained in such conduct arise as much out of the employment as when he is actually doing the work for which he is hired." Whitham v. Gellis, supra, 91 N.H. 226, 227. The plaintiff's activity was findably of an "ordinary and usual nature" which could not "rightly be called a leaving of the employment." Perkins v. Company, supra, 91 N.H. 211, 212. See Bernier v. Mills, 93 N.H. 165; Maltais v. Assurance Society, supra; 1 Larson, supra, s. 20.20.
The plaintiff could fairly infer not only that the use which he was making of the employer's machinery was known to the employer and so a permitted use (see Vitas v. Grace Hospital Society, 107 Conn. 512, 517), but also that under the terms upon which he was hired, it was a use encouraged by the employer as a condition of the employment. Wamhoff v. Wagner Electric Corp., 354 Mo. 711; Torrey v. Midland Cooperatives, 253 Minn. 489; Matter of Penzara v. Maffia Bros., 307 N.Y. 15. See anno. 161 A.L.R. 1461; Puffin v. General Electric Co., 132 Conn. 279; Thomas v. Manufacturing Co., 104 Kan. 432; 1 Larson, supra, s. 27.31 (b). That the plaintiff did not depart from his employment by doing what. he was doing when injured was a finding sustainable upon the record. 1 Larson, supra, s. 21.21 (a), (c); 7 Schneider, Workmen's Compensation, s. 1670.
Exceptions overruled.
All concurred.