Opinion
Decided January 5, 1937.
An employee engaged in shoveling snow off trucks and throwing it through a trap door on a bridge could properly be found to be exposed to greater risk of freezing his feet than the ordinary person then engaged in out-door work; and this extra risk being one arising out of his employment rendered his injury compensable. The employers' liability act (P. L., c. 178) does not exclude from its benefits a workman whose employment is temporary, irregular or occasional. Where the employment is casual or intermittent the basis of compensation within the meaning of s. 19 of the act is the sum which the plaintiff working full time at the established hourly rate would have received from the employer in the course of a week if the accident had not occurred. In determining the amount of compensation the average weekly earnings received from another employer cannot be considered. The law ordinarily takes no cognizance of fractions of days, and one becomes of full age the first moment of the day before his twenty-first anniversary. A nonsuit is not ordered on evidence introduced by the defendant.
PETITION, for compensation under P. L., c. 178. The defendant excepted to the denial of its motion to dismiss the petition made at the close of the plaintiff's evidence and renewed at the close of all the evidence. The special grounds on which the motion was based are stated in the opinion. The defendant also excepted to the finding that the plaintiff suffered an accidental injury which arose out of and in the course of his employment. Transferred by Woodbury, J., who also transferred, without ruling, the question of the method to be employed in calculating the plaintiff's compensation and the question of the applicability of Laws 1933, c. 88, to the facts found.
The findings are as follows:
"Charles James Fox, hereinafter called the petitioner, was a temporary employee of the City of Manchester. He was first employed by the City on January 25, 1935. On the evening of that day he presented himself at the defendant's city yard and asked for employment shoveling snow. Employment was given to him, but nothing was said about wages, hours, or conditions of work. After eight hours work he turned in his shovel at the city yard and was paid off at the rate of forty cents per hour.
"About nine P. M. on the night of January 26, 1935, he again presented himself at the city yard and again sought employment shoveling snow. He was again successful and was put to work with about eight others on a snow-loader operated by a gasoline engine. This machine was used on the streets of the city to load snow into trucks.
"About eleven o'clock that night he was relieved from duty on the snow-loader and sent down to the Granite Street Bridge to shovel snow.
"In the floor of this bridge there was a trap-door opening directly into the Merrimack River below. This door was open and was used to dump snow into the river. Snow was collected from the streets in trucks, hauled to the bridge, and dumped near the trap. It was the duty of the petitioner and about seven others, to shovel this snow down through the open door. He continued at this employment until eight o'clock the following morning with the exception of about half an hour at midnight when he went to a nearby lunch room for a meal.
"During the night of January 26 and 27, 1935, and during the morning of the 27, the temperature hovered around zero.
"At eight o'clock on the morning of January 27, the petitioner went from the bridge to the city yard, a distance of approximately quarter of a mile, turned in his shovel, and was paid off at the rate of forty cents per hour for eight hours and sixty cents per hour, (being time and a half for overtime), for the additional three hours, making in all, five dollars. He then stood in a building at the city yard near a stove for about half an hour for the purpose of warming himself, and then walked to his home, a distance of about a mile. He did not go out doors again that day.
"The record does not indicate that the petitioner realized that he had suffered any injury until about eleven o'clock that morning when he removed his shoes and discovered that his left foot was frost bitten. He attempted to restore circulation himself but was unsuccessful, and in the early afternoon a physician came and treated the foot. As a result of the frost bite part of the great toe on the left foot, and parts of the two adjoining toes had to be removed.
"I find that the petitioner's eighteenth birthday occurred on January 28, 1935; that he received the frost bite during the night of January 26-27, 1935, and that it occurred while he was employed by the defendant on the Granite Street Bridge.
"I further find that the petitioner's employment on the bridge required him to stand in or near large quantities of snow deposited there by trucks; that it required him to stand in an exposed position near an open trap-door in the floor of the bridge; and that the work was intermittent in that there were occasions during the night when it was necessary for him to wait between trucks. I find that the conditions under which the petitioner worked were such as to expose him to the inclemency of the weather more than persons in general were exposed during the night in question; and that, in freezing his foot, he suffered an accidental injury arising out of and in the course of his employment. The frost bite was caused in part by the cold and in part by his unusual exposure to the cold due to the adverse conditions under which he labored.
"It follows from the foregoing that he is entitled to compensation.
"The petitioner's pay while employed by the defendant before the injury was forty cents per hour for an eight hour period with time and a half for overtime. He was not hired on a weekly basis, but only as the need for snow shovellers arose. There was no established number of hours per week for such employment as that in which the petitioner was engaged when he was injured."
The court further found that the plaintiff was totally disabled until July 4, 1935; that his medical bills for the first thirty days after the injury amounted to $117, and that for two hundred weeks after July 4, 1935, his earning capacity would be reduced twenty-five per cent as a result of his injury.
Sullivan Sullivan (Mr. Thomas E. Dolan orally), for the plaintiff.
Demond, Woodworth, Sulloway, Piper Jones (Mr. Franklin Hollis orally), for the defendant.
Since in maintaining its streets a city is engaged in the performance of a governmental duty, it is not liable at common law to a highway laborer injured while in its employ. O'Brien v. Derry, 73 N.H. 198; Gates v. Milan, 76 N.H. 135. The workmen's compensation act (P. L., c. 178) presupposes the existence of the common-law incidents of master and servant in those employments within its scope. Consequently a city by accepting the provisions of the act does not make itself subject thereto except in respect to those duties which it performs in a private corporate capacity.
It is stated in the plaintiff's brief and was tacitly conceded by defendant's counsel in oral argument that the defence in the present case is being conducted by an insurance company. In answer to the presiding justice's inquiry at the trial, and also in answer to inquiries during oral argument in this court, counsel expressed the desire that, so far as the applicability of chapter 178 is concerned, the defendant be bound by the provisions of the act precisely as though the city were a private employer.
The question whether, on appropriate proceedings, the defendant could be enjoined from thus renouncing a legitimate defence or from spending public money "to insure against a non-existent liability" is not here presented. The motion to dismiss the petition is limited to the grounds therein assigned. Puchlopek v. Company, 82 N.H. 440, 441.
Borchard, "Recent Statutory Developments in Municipal Liability in Tort," 2 Legal Notes on Local Government, 89; 3 Current Legal Thought, 113, 121.
The defendant apparently concedes that the plaintiff's work was in a "place" near power-driven "machinery," as required by the terms of the statute (see Davis v. Company, ante, 204), and the only reasons advanced in support of its motion are (1) that the plaintiff's injury did not occur in the course of his employment, (2) that the injury was not an accident within the meaning of the act, and (3) that the plaintiff has failed to show the necessary causal connection between his employment and his injury.
The plaintiff worked all night shoveling snow, and the temperature for the last six hours averaged nearly four degrees below zero. Late in the forenoon he discovered that his toes were frozen. He described their appearance as white and hard. He first applied a remedy procured from a drug store and then sent for a doctor. The doctor found that the left foot "was extremely frostbitten." He stated on cross-examination that the toes were black. A physician, called to the stand by the defendant, testified that if the plaintiff's toes were frostbitten that night he would not expect them to be black the next day but he "would expect possibly a bluish discoloration." This testimony was not controlling. A nonsuit is not ordered on evidence introduced by the defendant. Giroux v. Insurance Co., 85 N.H. 355, 356, and cases cited.
Even though the plaintiff did not state that he suffered any pain that night and even though he did not realize that his foot was frozen until he looked at it in the morning, the fact remains that his toes were severely frostbitten when the doctor examined them that afternoon. The evidence clearly warrants the finding of the trial court that the plaintiff received the frostbite "during the night of January 26-27, 1935, and that it occurred while he was employed by the defendant on the Granite Street Bridge." It was "an accident within the statute." Zwiercan v. Company, 87 N.H. 196, 197, and cases cited.
The finding that the plaintiff was exposed to a greater danger than persons in general were exposed to that night is a reasonable inference from the evidence. He was required to stand on a bridge near a trap door opening directly into the river. The thermometer registered eleven above zero when he began work at the bridge at eleven o'clock; it registered four below zero when he finished work at eight the next morning. His station on the bridge exposed him to something "beyond the ordinary normal risk, which ordinary people run" and the "extra danger" to which he was thus exposed was "something arising out of his employment." Andrew v. Society [1904] 2 K. B. 32, 35. Furthermore "it could be found that he was exposed to a greater risk of freezing, because more constant, than the ordinary person engaged in outdoor work." Shute's Case (Mass.), 195 N.E. Rep. 354, 356. See Annotation, 13 A.L.R. 974. The case differs in these respects from Zwiercan v. Company, supra.
Up to 1911, the year of the passage of our workmen's compensation act, "no statute upon this subject had been adopted in this country, except the New York act of 1910. N. Y. Laws 1910, c. 674." Guay v. Company, 83 N.H. 392, 393. There is no provision in our statute which definitely excludes from the benefits of the act a workman whose employment is temporary, irregular, or occasional. This is true also of the New York act of 1910, from which many provisions of chapter 178 were derived. On the other hand, the English act of 1897, as amended in 1906, expressly provides that the word "workman," as there used, shall not include "a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business." 6 Edw. VII, c. 58, s. 13.
It has been said that in the absence of "any express provision, or general limitation in the scope of its operation," a workmen's compensation act "should be held to include employees whose engagement is not usual and continued, but merely casual or intermittent." 28 R. C. L. 766. The English act of 1897, as originally drawn, was construed to include daily laborers. 14 Chitty, English Statutes, p. 942, note q. Thus the case of Lysons v. Knowles, [1901] A. C. 79, holds that a collier employed by the day and working only two days before being injured is entitled to compensation under the act.
Apparently defendant's counsel do not question this rule of construction. They concede that if the plaintiff suffered a compensable injury he is entitled to the payment of his doctor's bills under section 13 relating to remedial care, but in computing the amount due him under sections 21 and 23 they contend that if there is any full-time employment by which to measure his average weekly earnings it must be found in his employment at the Manchester Country Club, where he worked as caddy the summer before. The answer to this contention is that the statute does not authorize consideration of the earnings received from another employer. Abbott v. Company, 80 N.H. 301; Freeman v. Mills, 84 N.H. 383, 386.
The amount of compensation to which a workman was entitled under the English act of 1897 depended on his "average weekly earnings during the previous twelve months, if he has been so long employed, but if not, then for any less period during which he has been in the employment of the same employer." 60 61 Vict. 6. 37, First Schedule, 1 (b). In a case involving injury to a casual dock laborer "engaged for a day at a certain rate of wages per hour, but subject to discharge on an hour's notice" it is said: "Where there is no antecedent employment by the same employer from which average weekly earnings can be arrived at, the workman is still entitled to compensation though the word average in the schedule is not applicable." The standard is the amount of wages that the employer "paid, or would have paid one week with another, to the injured workman while in his employment. . . . We cannot take into consideration employment under any other employer." Bartlett v. Tutton, [1902] 1 K. B. 72, 75.
By section 19 of our own act the amount of the workman's compensation depends on "the average weekly earnings of such workman when at work on full time during the preceding year during which he shall have been in the employ of the same employer, or, if he shall have been in the employment of the same employer for less than a year, . . . his average weekly earnings on full time for such less period." In the case of Cote v. Company, 85 N.H. 444, it was held that a factory employee working the entire time that his employer had work for him to do was entitled to compensation computed on the basis of the wages he would have received if the factory had been in operation at its full normal running time.
It follows as a logical extension of this rule that the basis of computation in the present case is the sum which the plaintiff, working at full time, at the rate of forty cents an hour, would have received from the defendant in the course of a week if the accident had not occurred. See Boyd, Workmen's Compensation, s. 542. The plaintiff was employed by the street commissioner as one of a crew engaged in necessary highway work. The length of time required to perform this work is unimportant. Full time in work of this kind comprises the normal number of working hours a week for day labor in the Manchester street department. When, after the introduction of further evidence, full time as thus defined has been determined, the trial court can readily compute the exact amount of the award.
Chapter 88 of the Laws of 1933 relating to the employment of minors under eighteen years of age is inapplicable. The alleged violation of P. L., c. 176, s. 16, prohibiting night work for more than eight hours, did not occur until after five o'clock on the morning of February 27. The plaintiff completed his seventeenth year on that day, and the law usually disregards fractions of a day. See Monroe Loan Society v. Nute, ante, 13. "The law ordinarily" takes "no cognizance of fractions of days, one becomes of full age the first moment of the day before his twenty-first anniversary." United States v. Wright, 197 Fed. 297, 298, and cases cited.
Case discharged.
WOODBURY, J., did not sit: PAGE, J., was absent: the others concurred.