Summary
In Maltais v. Equitable Life Assur. Soc'y of the United States, 93 N.H. 237, 40 A.2d 837 (1944), two workers, while cleaning each others' clothes off with an airhose, began fooling around with it, causing claimant's death.
Summary of this case from Carvalho v. Decorative Fabrics Co.Opinion
No. 3489.
Decided December 5, 1944.
A non-occupational group insurance policy containing a provision that no payment shall be made for loss resulting from bodily injuries arising out of and in the course of the policyholder's employment affords no coverage to an insured who sustains an injury on the premises of his employer when a fellow-employee in the act of blowing off dust from insured's workclothes with an air hose caused the injury complained of, when such use of the air hose was reasonably to be anticipated by the employer and not forbidden. Brief lapses from duty on the part of employees and their engagement in "horseplay, kidding and teasing" are conditions incident to their employment and "part and parcel" of the working environment. In such case, the prior conduct of the insured, although it may have prompted his fellow-employee to do what he did, does not necessarily constitute serious misconduct within the meaning of the Workmen's Compensation Act.
TWO ACTIONS OF ASSUMPSIT on policies of group insurance issued by the defendant to the New England Briar Pipe Company, one for hospital expense, the other for accidental death and dismemberment. Each policy is labeled "non-occupational" and each expressly provides that "no payment shall be made" for any loss resulting from "bodily injuries arising out of and in the course of the employee's employment."
Victor H. Maltais, the plaintiff's intestate, was an employee of the New England Briar Pipe Company and a participant in both of these policies at the time of his death. He died from injuries received on the premises of the pipe company, at Penacook, on January 22, 1942, when a fellow-employee, in sport, applied a compressed air hose to his rectum. This hose was used by the pipe company to clean sawdust from machines, motors, sand-blast pipes, etc. The workplace was dusty, and some of the workmen were in the habit of using the hose for the purpose of blowing the sawdust from their clothes. There was no rule forbidding such use.
Fred Cutting, the workman who caused the decedent's fatal injuries, stated that he was sawing maple blocks in the sand blasting room at about quitting time when the decedent came into the room and, after watching him work for a while, went over to the air tank and started cleaning his clothes. Cutting testified: "He [the decedent] turned the valve on and held the hose on his clothes just to blow the dust off . . . . As soon as I got done sawing what I was doing, I went over and was waiting to use the hose myself . . . and Victor suggested he would clean my clothes off and I should clean his. It is a little easier that way, you can't clean in back of yourself alone and see what you are doing, so Victor took the hose and started dusting me off and fooling with it, like blowing your hair around and thrusting it at you . . . . So I took the hose and started the same way, playing, dusting him off, blowing his hair around and trying to put it in his pocket and then I thrust the hose at him and when I did the hose touched him and he grabbed his stomach and started out of the sand blasting room."
The witness further stated that the decedent ran into the next room and fell on the floor and that he was then taken to the hospital. He died on the following day. Cutting also testified that the hose was sometimes used in sport and that one of the workmen in particular "would stick the hose through the window" and "blow somebody's hat off when they went by."
There was a trial by jury. The defendant offered to prove, as alleged in its plea and brief statement of defense, that Albina Maltais, as administratrix of her husband's estate, had asserted a claim against the Liberty Mutual Insurance Company, which insured the New England Briar Pipe Company against liability to its employees, and had effected a settlement with that insurance company for the approximate amount of the death benefits to which she was entitled under the provisions of the Employers' Liability and Workmen's Compensation Act. In support of this offer, defendant's counsel contended that the settlement in question amounted to an election on the plaintiff's part to treat the accident as "arising out of and in the course of" the decedent's employment (R. L., c. 216, s. 4) and that such election constituted a bar to the present proceedings. To the exclusion of the proffered evidence the defendant duly excepted.
At the conclusion of the evidence each party moved for directed verdicts. Subject to the defendant's exception, the plaintiff's motion was granted in each case and the defendant's motions were denied. Further facts are stated in the opinion.
Transferred by Connor, J.
Robert W. Upton and Laurence I. Duncan (Mr. Duncan orally), for the plaintiff.
Wyman, Starr, Booth, Wadleigh Langdell (Mr. Booth orally), for the defendant.
The plaintiff assumed the burden of proving that the decedent's death was caused by a non-occupational accident or, in other words, by an accident which did not arise out of and in the course of his employment within the meaning of that phrase as used in the policies. Raymond v. Company, 86 N.H. 93; Trepanier v. Insurance Co., 88 N.H. 118, 121. The phrase is common to many workmen's compensation statutes including our own act (R. L., c. 216).
The policies were obviously designed to afford a workman protection (with certain exceptions not here material) in the event of an injury for which his employer was not liable either at common law or under the provisions of chapter 216. But in determining whether or not the plaintiff may recover it should be borne in mind that, although injuries which do not arise out of and in the course of a workman's employment are not compensable under the provisions of our statute, the phrase in question has usually received a very liberal interpretation in recognition of the remedial purpose of the act.
"The injury arises out of the employment when it occurs in the course of the employment and is the result of a risk incident to the conditions under which the employment is performed" (Mascika v. Company, 109 Conn. 473, 480); and, to quote the language of Cardozo, J., in the case of Leonbruno v. Mills, 229 N.Y. 470, 473, "The risks of injury incurred in the crowded contacts of the factory through the acts of fellow-workmen, are not measured by the tendency of such acts to serve the master's business. Many things that have no such tendency are done by workmen every day."
"The phrase `in the course of employment' presents two principal questions. The first concerns the period of employment. When does it begin and end, and, during this period, when is its continuity broken? The second raises the question as to how far the servant during the period of employment places himself outside thereof by doing that which he is not employed to do, or by doing his appointed work at a place other than that which his master has appointed for that purpose, or by deliberately adopting a method of performing the work other than that prescribed by his master or forbidden by him." Bohlen, "The Drafting of Workmen's Compensation Acts," 25 Harv. Law Rev. 401, 402.
It is definitely settled in this jurisdiction that the words of the statute do not limit its application to the periods during which the workman is actually engaged upon the work he is hired to perform. Whitham v. Gellis, 91 N.H. 226, 227, and cases cited. See, also, Bernier v. Mills, ante, 165.
The witness Cutting stated that he had "an exceptionally dusty job" and that there was no blowing system in the room where he worked; that he had been employed by the New England Briar Pipe Company for three years and that whenever he was working on maple pipes he had to remove sawdust from his clothing before lunch and before he went home at night, and that he did this by means of the air hose. He testified: "I used to dust myself off alone if there wasn't anybody around. If there was somebody around I would ask them to help me. I suppose the others did likewise. . . . I would use it [the hose] because it was necessary on my job, I got so dusty."
The hose was used only for the purpose of removing dust, and it was but natural to suppose that the workmen would use it as they did. Although the pipe company's foreman professed not to know of the workmen's practice of "brushing each other off," he admitted that there was no rule against it, and he couldn't remember whether he had ever "told anyone not to use the air hose to clean themselves off or somebody else off."
As stated in the defendant's brief, the pipe company's workmen were permitted to clean up on company time, the injury to the decedent occurred on the company's premises and before quitting time, and the method of cleaning up was not forbidden. The following language of the opinion in Whitham v. Gellis, supra, is particularly applicable: "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."
The decedent's injuries arose out of his employment if the danger of being injured by the sport of a fellow-workman was "a risk to which he was subjected by the defendant." Zwiercan v. Company, 87 N.H. 196, 198. See, also, Fox v. Manchester, 88 N.H. 355, 359.
Whatever workmen are commonly understood to do when associated together in a shop or factory is "part and parcel of the working environment" (Hartford c. Co. v. Cardillo, 112 F.2d 11, 17) and therefore one of the perils of the service. That workmen are apt "to indulge in a moment's diversion from work to joke with or play a prank upon a fellow workman, is a matter of common knowledge to everyone who employs labor." Hulley v. Moosbrugger, 87 N. J. Law, 103, 105. Cardozo, J., quotes these words in the course of his opinion in Leonbruno v. Mills, 229 N.Y. 470, 472, and then continues: "The claimant was injured, not merely while he was in a factory, but because he was in a factory, in touch with associations and conditions inseparable from factory life. The risks of such associations and conditions were risks of the employment."
The trend of our decisions is clearly in accord with these views. See Donovan v., Mills, 90 N.H. 450, 452; Bernier v. Mills, ante, 165.
Many authorities hold, however, that although an injured workman can recover compensation when he is the innocent victim of another workman's prank, his injury cannot be said to arise out of his employment if he was a participant in the sport by which he was injured. Other courts allow recovery despite such participation. The conflicting views are discussed by Rutledge, J., in the case of Hartford c. Co. v. Cardillo, supra.
As defendant's counsel have pointed out, the decedent was not actively participating in the sport at the moment when the accident occurred, and the most that can be said in the plaintiff's favor on this issue is that the example set by the decedent may have prompted Cutting to do what he did.
The pipe company knew as a matter of common knowledge that there might be brief "lapses from duty" on the part of its employees as in "horseplay, kidding and teasing" (Hartford c. Co. v. Cardillo, supra, 16). Such lapses are conditions incident to the service, and for this court to hold that an injury arises out of the employment if it is inflicted on a workman attentive to duty by the sportive conduct of a fellow-employee, but that it does not so arise if the injured workman participates, however slightly, in the sport is to draw a distinction based on the injured workman's fault, when the only faults specifically named in the statute as precluding recovery are intoxication, violation of law, and serious or wilful misconduct (R. L. c. 216, s. 10).
It could not be found on the evidence that the decedent was guilty of serious misconduct or of any other of the enumerated derelictions. "He was guilty at most of contributory fault." Hartford c. Co. v. Cardillo, supra, 18. But this was not sufficient, in view of the provisions of section 10, to defeat his right to compensation under the act.
It follows that the plaintiff's motions for directed verdicts should have been denied and the defendant's motions granted. This conclusion makes it unnecessary to consider the defendant's exception to the exclusion of evidence.
Judgments for the defendant.
All concurred.