Decided December 3, 1940.
An accident happening to an employee while engaged in the employment, though occurring during a brief interval when the employee's conduct was of a personal nature reasonably undertaken and not expressly forbidden, is as much in the course of his employment and arising out of it as if he was then performing the work he was employed to do.
PETITION, for workmen's compensation. The plaintiff's intestate had charge of a filling station of the defendant located at the side of the highway between West Lebanon and Hanover. He lived at the premises and was in service during daytime. While alone at the station and on duty he crossed the highway to make a purchase for his personal use at a store opposite the station. On his return, while in the highway and nearly reaching the grounds of the station he was struck by an automobile and killed. His personal errand was one not forbidden by the defendant and was one reasonably expected to be permitted. It was found that the errand was "a natural incident" of the decedent's employment.
Without ruling, the court (Johnston, J.) transferred the question whether the accident arose out of and in the course of the decedent's employment.
Norris Cotton and Atlee Zellers, by brief, for the plaintiff.
Albert D. Leahy, for the defendant, filed no brief.
While the decedent's errand was not a part of his work, the finding that it was a natural incident of it is construed to mean that it was not a departure from it. Taking into account the nature of his errand which called for no time or distance amounting to an absence in breach of the terms of his employment, the conclusion is that the accident arose out of as well as in the course of the employment. It was his duty to be on hand, and it was while on duty and in connection with the duty that the accident occurred. While engaged in employment an employee's conduct in matters of 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. The service is not interrupted. One, though not the only, cause of the decedent's accident was his employment within the course of which he was acting at the time. The case of Gallienne v. Company, 88 N.H. 375, affirmed in Snook v. Portsmouth, 90 N.H. 441, supports this view of the incidents of an employee's service. The case of Perkins v. Company, ante 211, is also in accord on this point.