Summary
discussing same provision in former Workers' Compensation Law
Summary of this case from In re PhillipsOpinion
No. 4241.
Argued December 1, 1953.
Decided January 29, 1954.
The fact that the claimant in a workmen's compensation case had been drinking alcoholic liquor prior to the accident in which he was injured did not preclude recovery under the provisions of the Workmen's Compensation Law (Laws 1947, c. 266, s. 13) relating to "Employee's Fault" where the injuries he sustained had no causal relationship with his drinking and the proximate cause of the accident was the intoxication of the foreman-driver of the employer's truck in which the claimant was a passenger. Where the accident in which the employees sustained their injuries occurred during working hours and while they were returning in their employer's truck by the usual route and at the usual time to their destination to do further work for their employer the accident arose out of and in the course of their employment notwithstanding the fact that there had been a prior deviation from their employment and a violation of company rules on that day. Certain requested findings, inconsistent with the general conclusions reached by the trier of facts and supported by the evidence, were properly denied.
PETITIONS, for workmen's compensation (four cases) under Laws 1947, c. 266, brought by or in behalf of Joseph Allison, Clayton G. Jewett, Francis Hanna and William A. Allicon. The first three named employees were injured and the fourth was killed on the afternoon of October 21, 1950, when the defendant's truck returning from Portsmouth to its warehouse in Rochester, New Hampshire, ran off the righthand side of the highway and crashed against a tree. The four cases were consolidated for trial and pursuant to agreement of counsel were referred to a master who was given the same authority as a Justice in the Superior Court in making rulings. It was agreed that his report would be approved by the Superior Court as submitted and that all parties reserved their right of appeal to the Supreme Court. The master found for the plaintiffs and the defendant excepted to the findings and rulings of the master, and to the admission and exclusion of evidence. Defendant's bill of exceptions was allowed and transferred by Wheeler, C. J.
While separate findings and rulings were made in each of the four cases the master's report in the Allison case, which is quoted below with omissions of immaterial matter, gives a composite picture of the factual situation in these cases.
Allison "left Rochester, New Hampshire, on the morning of October 21, 1950, at about 7 A. M. He was then in the employ of Brown Horsch who carried on an insulation business from that city, and with others started for Kittery, Maine, where they were to insulate a house. They rode in a company truck driven by one Howard Banks, who was the foreman in charge of this truck and of this gang. Banks, Joe Allison, and Hanna were in the truck. Roland Gagne, another member of this crew, was to meet them in Portsmouth . . . . Another truck on a like errand left Rochester at about the same time in charge of another driver and crew. The second truck was also to do an insulation job in Kittery, Maine. Neither truck reached Kittery. The Allison truck drove from Rochester to Portsmouth, where the men as was the practice stopped for breakfast at Huddy's on the Rocks. They next visited a beer joint (Roger's) nearby where all, including Allison, drank beer. They reached Roger's at about 9:30, and stayed there forty-five minutes or so. Joe Allison then took some of his own money and with some from Banks went to a nearby liquor store and bought three pints of hard liquor, two for himself and one for Banks. Allison did not open his bottles. There was no evidence that the men had done like drinking on other trips, and Robert Allicon and Horsch both testified that pretty strict orders had been given against such acts.
"The truck then drove to the house of one Tibbetts, who had previously worked for the defendant company, arriving there at about 11 A. M. Tibbetts was not at home and did not arrive until about noon. It is not clear that everybody went into the house at the same time, but those who did enter including Banks, the driver and crew foreman, drank what is described in the testimony as coffee royals — a mixture of coffee and whisky . . . . Banks, Hanna, William Allicon, Joe Allison, and Jewett drank at the Tibbetts house. The men left here at about 1 o'clock and the evidence is that they were all about in the same condition, except Banks, who admits that he was not in good condition. The others were not noticeably under the influence of liquor.
"Banks, the crew boss and operator of the truck, had great difficulty in telling a plausible story on the witness stand; and the master was unable to determine whether he was unable or unwilling to tell the full truth. He did say that he drank a considerable amount of liquor before and after he arrived at the Tibbetts house, and that he was `fairly well under the influence' when he left there. This condition on the part of Banks was the chief cause of the accident that occurred on Woodbury Avenue at about 1:30 in the afternoon of Saturday, October 21, 1950. Such drinking as the evidence shows took place at Roger's and at Tibbetts was wholly contrary to the instructions of the company.
"The reason given by some witnesses for the visit to Tibbetts was to re-engage him as a member of the insulating crew. Banks, the foreman, does not say he had any authority to hire Tibbetts and was not asked to do so. His testimony is substantiated by that of Horsch the treasurer of the company, and Robert Allicon, who denied that Banks had any such general or special authority. Robert Allicon, the foreman and superintendent in Rochester, who had charge of hiring and firing, did have some talk with Banks about seeing Tibbetts, and he knew that Banks would probably stop there. The master finds, upon an examination of all the evidence, that Banks may have implied authority to see Tibbetts but nothing further. He finds also that from the time these men left the lunch room at Huddy's until they left the Tibbetts house at about 1 P. M. on Saturday, October 21, 1950, their acts were not within the scope of their employment.
"The truck left the Tibbetts house at around 1 o'clock in the afternoon to return to Rochester and did not go to Kittery at all. Banks was the driver and the evidence is not too clear as to his exact condition; although he admits that he was `fairly well under the influence' when he left the Tibbetts house on the return trip to Rochester. The master finds from all the evidence, and especially that of a disinterested witness that Banks, who had a women leg, was not in the proper condition to operate this large truck with three passengers in the cab and with a heavy load . . . .
"The crew was changed somewhat on the return trip to Rochester. On the morning trip Banks was the driver and Joe Allison and Frank Hanna were with him. On the return trip Banks was still driving with Joe Allison in the body of the truck and Jewett, William Allicon and Hanna in the cab with Banks. Allison says it was not unusual for four men to ride in the cab, and Allicon, the superintendent at the Rochester plant, said that men went from one crew to another. Jewett and William Allicon were really members of the other crew but the crews sometimes changed. Horsch testified that neither the driver nor the employees had the right to shift from one crew to the other; but Robert Allicon, superintendent of crews, knew of this practice and he was the one who made the assignments . . . .
"The master finds as a fact that such drinking occurred wholly contrary to the orders of the company. He finds also that such drinking on the part of Banks, the driver of the truck and the foreman of this crew, contributed to the accident. If Banks were a claimant here, he would be denied compensation; but there is no evidence of any injury to him, and he makes no claim in this action . . . Here the intoxication of Banks, the driver, which probably contributed to the accident and to the injury of the plaintiff Allison, is not of itself a defense to Allison's claim to recover.
"Allison had been drinking, but the master cannot find that he was intoxicated, or that his drinking contributed to his injury; and his claim to recover is not barred by the provisions of section 13 [of the compensation law] . . . . .
"He was certainly acting in the course of his employment when he reported for work at Rochester, and during the trip to Portsmouth and his breakfast there. He then spent some time in the beer joint and at Tibbetts' house doing some drinking at both places. During these periods, and especially during the two-hour period at Tibbetts, he was doing acts not contemplated by or consistent with the course of his employment. If the injury had occurred at the beer joint or at Tibbetts' house, he probably could not recover.
"The master thinks the situation changed upon the beginning of the homeward journey. The great weight of the evidence was to the effect that at or toward the end of each day the trucks usually returned to the storehouse in Rochester, where unloading or reloading for the next day's job would take place. The men also at the end of the day cleaned out the warehouse, carried the waste to the dump, and in general made the necessary preparations for the work of the next day. Allison was one of the crew that left the Tibbetts' house and headed for Rochester by the usual travelled route to the company warehouse to do there the work above described. The fact that Allison had departed from the course of his employment at the beer joint and at Tibbetts' house does not prevent him from resuming the course of that employment, and he had boarded the company's truck and began the journey back to Rochester by the usual route to do the company work that he would normally do on like occasions. The master finds as a fact and rules as a matter of law that Allison at the time of the accident on October 21, 1950, was doing work in the course of his employment and may recover for injuries, if any, he received in the truck accident of that day."
Burns, Calderwood Bryant and Robert E. Hinchey (Mr. Hinchey orally), for the plaintiffs, Allison, Jewett and Allicon.
John DeCourcy (by brief and orally), for the plaintiff Hanna.
Charles F. Hartnett (by brief and orally), for the defendant.
One of the principal issues in these cases is whether drinking by the plaintiffs constitutes a bar to compensation under the intoxication provision of the Workmen's Compensation Law. The governing provisions (Laws 1947, c. 266, s. 13) are as follows: "EMPLOYEE'S FAULT. The employer shall not be liable for any injury to a workman which is caused in whole or in part by the intoxication, or serious and wilful misconduct of the workman. The provisions as to intoxication shall not apply, however, if the employer knew that the employee was intoxicated."
The plain wording of section 13 makes intoxication a defense if the "injury to a workman" is caused in whole or in part by the intoxication "of the workman." The right of the workman to recover compensation for his injury is determined by his own conduct and not by the conduct of his fellow workmen. It is not necessary that intoxication be the sole cause of the injury but there must be a causal relationship between the claimant's intoxication and his resulting injury to constitute a defense under the Workmen's Compensation Law. See Bolduc v. Company, 97 N.H. 360. The statute clearly contemplates that the "injury to a workman" be "caused in whole or in part" by his own intoxication. Connor Company v. Industrial Commission, 374 Ill. 105; England v. Fairview School District, 58 Idaho 633. The master so interpreted the statute and we believe correctly according to its literal terms and consistent with its evident purpose. To rule otherwise we would have to disregard the language of the statute, employ a doctrine of implied fault and hold that the misconduct of the driver is to be imputed to the passenger workmen. In this state the doctrine of imputed negligence has been limited and not extended. Clough v. Schwartz, 94 N.H. 138, 140. It has no application to this case.
It is not seriously disputed that the foreman-driver of the defendant's truck was under the influence of liquor and an examination of the record shows this was the proximate cause of the accident. He was in charge of the crew and in sole charge of the operation of the truck. The master found that the plaintiffs were not intoxicated and that their drinking did not contribute to their injuries and the record supports his findings. Martin v. Biddeford, 138 Me. 26, 29. Intoxication of the foreman-driver was not intoxication of his fellow workmen who were passengers. Vicarious intoxication is not a defense under section 13 of the Workmen's Compensation Law. 4 NACCA Law Journal 27-29. The defendant had the burden of proof on the defense of intoxication and it was not met on the facts of this case. Birch v. Malvern Cold Storage Co., 230 Iowa 357; 6 Schneider, Workmen's Compensation (perm. ed.) s. 1588.
The second principal issue raised in these proceedings is the defendant's contention that the accident did not arise out of and in the course of the employment. For the purposes of this case we will assume, without deciding, that the plaintiffs were not acting in the course of their employment when they followed the foreman's orders and actions by (a) not proceeding to their place of work in Kittery, Maine, (b) visiting the residence of the prospective employee Tibbetts and (c) drinking while on duty. If the accident had occurred when these conditions existed, compensation would be denied as the master has indicated. However this deviation from the course of their employment was terminated when they were returning to the warehouse where it was customarily required that further work be completed before the end of the day. While they had previously deviated from their employment and violated company rules, they had resumed the course of their employment at the time of the accident. When the accident occurred they were in the same conveyance at approximately the same time and place they would have been had they returned from Kittery, Maine, in the normal course of their duties at that time. There was no dereliction on the part of the plaintiffs which contributed to the resulting injuries. It is well established that an employee's prohibited deviation while traveling to or from his work may be cured by a return to the usual traveled route. In this case the truck was on the direct and usual traveled route to the warehouse and was at that time being used in the business of the employer. Marriott v. National Mut. Cas. Co., 195 F.2d 462; Parotto v. Standard Paving Co., 345 Ill. App. 486. Where the employee's deviation has ceased, ". . . with a completed personal errand put behind, and a business destination remaining to be reached, you have the clearest kind of coverage." 1 Larson, Workmen's Compensation, s. 19.25. Since the accident occurred during working hours while the employees were returning to their home base for further work for the employer, the accident arose in the course of employment. A collision of the truck with the tree was a "street risk" (Katz v. Kadans Co., 232 N.Y. 420) to which employees riding on the defendant's truck were constantly exposed and therefore arose out of the employment. Irwin-Neisler Co. v. Industrial Commission, 346 Ill. 89.
The defendant urges that the plaintiffs' drinking in violation of company rules is serious and willful misconduct which bars compensation. If the drinking could have been found to be such misconduct, it was not causal of the injuries to the plaintiffs and does not preclude recovery. 1 Larson, Workmen's Compensation, s. 34.20; Ginther v. J. P. Graham Transfer Co., 348 Pa. 60; Weidt v. Brannan Motor Co., (Wyo.) 260 P.2d 757; Hopwood v. Pittsburgh, 152 Pa. Super. 398. If the plaintiffs were guilty of willful and serious misconduct before their return trip they were not so guilty at the time of the accident. See Newell v. Moreau, 94 N.H. 439. This conclusion is particularly fortified in the present case where the plaintiff passengers were injured as a result of the foreman's intoxication.
The defendant has taken many exceptions to the admission and exclusion of evidence and to the failure of the master to grant certain requested findings and rulings. Many of the requested findings were inconsistent with the general conclusions reached by the master and since the general conclusions were supported by the evidence, these requests were properly denied. Chabot v. Shiner, 95 N.H. 252. Other requests for specific findings, where the testimony was conflicting and where the master could properly make contrary findings, were properly denied. Vallee v. Company, 89 N.H. 285, 288; Steinberg v. Steinberg, 95 N.H. 461, 462. A detailed examination of the record discloses no errors in rulings made or denied, and no finding has been made that is not supported in the record. Consequently the defendant's exceptions to the trial procedure must be overruled. Walter v. Hagianis, 97 N.H. 314; Bohan v. Company, 98 N.H. 144. In the case of the injured employees the verdicts are affirmed. In the death case the lump sum verdict must be modified in accordance with the decision in Diamond v. Employers' c. Company, 97 N.H. 510.
Case discharged.
All concurred.