Summary
concluding that if legislature intended statute's coverage to be less inclusive, it would have so provided
Summary of this case from Acadia Insurance Company v. McNeilOpinion
No. 4556.
Argued February 6, 1957.
Decided April 10, 1957.
1. The remedy afforded an employee by the Workmen's Compensation Law is exclusive if the injury for which the employee seeks to recover is within the statute and the employee has not previously elected in accordance with the statute not to accept its provisions.
2. An injury arising out of and in the course of employment is compensable under the Workmen's Compensation Law (RSA ch. 281) notwithstanding the fact that the injury may have resulted from an act which the employer deliberately ordered the employee to perform, where no intention to cause injury is alleged.
3. In an action for wrongful death of the plaintiff alleged to have resulted from an explosion occurring on the defendant's premises the defendant's plea in bar that the plaintiff's rights as an employee of the defendant were governed by the Workmen's Compensation Law presented a preliminary issue of fact as to whether the injury arose out of and in the course of the employment and the plaintiff is entitled to a finding by jury on that issue unless the evidence is conclusive so that it may be determined as a matter of law.
CASE, to recover for the death of the plaintiff's intestate as a result of an explosion alleged to have occurred on the defendant's premises in Laconia on July 30, 1953. The writ contains three counts, the first of which charges a breach by the defendant of a duty to warn the plaintiff's intestate of dangers arising from the presence of escaped gas on his premises of which he knew or should have known, and which exploded, injuring the decedent so that her death resulted on August 7, 1953. The second count alleges that the defendant permitted such gas to escape into the premises where he employed the decedent, in consequence of which the gas exploded, or contributed to an explosion, which caused the decedent's injuries and ensuing death. The third count alleges that by "wilful, deliberate or culpable acts," the defendant, by ordering the decedent as his employee to operate certain electrical equipment when he knew or should have known that explosion of such gas could result, caused the explosion with the aforesaid consequences.
The defendant entered a general denial, and by plea in bar alleged that the injury alleged by the plaintiff to have resulted in his intestate's death was accidental, and occurred in the course of her employment by the defendant, and that the defendant and the plaintiff's intestate were both subject to the provisions of the Workmen's Compensation Law.
Hearing by the Court (Wescott, J.). The parties agreed "that the defendant was an employer subject to the provisions of the Workmen's Compensation Act (Laws 1947, Chapter 266 as amended) and the plaintiff's intestate was an employee within the meaning of the law and had not elected to be excluded from the operation of the act." The plaintiff claims the right to a jury trial "on the issues of whether the injury to his intestate was `accidental' and `arose out of and in the course of her employment,' and . . . whether [it] was due to the defendant's wilful, deliberate and culpable act." Subject to the plaintiff's exception, the Court ruled that these are "questions of law rather than fact."
The following questions were transferred without ruling:
"1) Was the injury caused to plaintiff's intestate by the explosion `accidental' and did it `arise out of and in the course of her employment' within the meaning of the Workmen's Compensation Act?
"2) Does the allegation of a wilful, deliberate, and culpable act on the part of the employer as alleged in Count #3 of plaintiff's declaration take the case out of the Workmen's Compensation Act so as to entitle plaintiff to a jury trial on this issue?"
Normandin Normandin and Thomas P. Cheney (Mr. Cheney orally), for the plaintiff.
Jewett Jewett, Bernard I. Snierson and John P. Chandler (Mr. Chandler orally), for the defendant.
Since the enactment of RSA ch. 281, it has been the law in this jurisdiction that the exclusive remedy against an employer for accidental injury or death of an employee arising out of and in the course of his employment is that afforded by the Workmen's Compensation Law, unless the employee has previously elected not to accept the provisions of the law as provided by the statute. RSA 281:2 III, 12. Porter v. Barton, 98 N.H. 104; Carbonneau v. Company, 96 N.H. 240. Since the parties in the pending action have agreed that the decedent did not so elect, and that the defendant was an employer and the decedent an employee within the meaning of the statute, the plaintiff's rights are governed by it, if the injury was accidental, and arose out of and in the course of the decedent's employment. The plaintiff urges that the questions of whether the injuries were accidental and whether they did or did not arise out of and in the course of the employment are questions of fact upon which he is entitled to the decision of a jury.
The plaintiff has alleged in the third count of his writ that his intestate's death resulted from the defendant's "wilful, deliberate or culpable act," and argues that the injuries which ensued cannot have been "accidental" within the meaning of the statute. There are cases to be found which hold that injuries deliberately inflicted are not within the coverage of workmen's compensation' laws, and some statutes so provide. 2 Larson, Workmen's Compensation, ss. 68.11, 69; note, 26 Ind. L. J. 280; anno. 58 A.L.R. 1379. The plaintiff, however, does not allege an intended injury, but rather a deliberate ordering of the employee to perform an act which produced the explosion. See Duncan v. Perry Packing Co., 162 Kan. 79; Larson, supra, ss. 68:13, 69. Injuries resulting from intentional acts were compensable under the former Workmen's Compensation Law (Newell v. Moreau, 94 N.H. 439) and it is a fair assumption that if the Legislature intended the coverage of the present law to be less inclusive, it would have so provided. Since it did not do so, the second transferred question is answered in the negative. The allegations of the third count of the writ do not take the case out of the Workmen's Compensation Law. On the contrary, count three alleges injuries arising out of and in the course of the decedent's employment, and the first question is answered affirmatively as to that count.
If however, under the other counts of the writ, it should appear from the evidence that the explosion resulted from a cause unrelated to any act by the employee in the course of her duties (Manor v. Pennington, 167 N. Y. S. 424), so that the injury did not arise out of her employment (Dustin v. Lewis, 99 N.H. 404; Zwiercan v. Company, 87 N.H. 196), the action at law would be maintainable because the injury would be noncompensable. Levin v. Twin Tanners, Inc., 318 Mass. 13, 17.
With respect to the first two counts the pleadings present an issue of fact as to whether the injury arose out of and in the course of the employment. Under these counts, the plaintiff is entitled to the finding of a jury on this issue, if there is conflicting evidence upon which there could reasonably be a finding for either party. Dalgleish v. Holt, 108 Cal. App. (2d) 561; Dawson v. Brooks Company, 134 N. J. L. 94. See Battistelli v. Connohio Company, 138 Conn. 646; Wawrzonek v. Central Hudson G. E. Corp., 276 N.Y. 412. On the other hand, if the evidence admits of only one conclusion, the issue will be one of law for the Trial Court. Fike v. Company, 56 Ohio App. 197. See Baugh v. Rogers, 24 Cal. (2d) 200, 206.
In the absence of any allegation that the injury was deliberately inflicted, it is not perceived how any issue of fact is likely to arise as to whether it was accidental. Walter v. Hagianis, 97 N.H. 314, 317.
As to the first two counts, the first question transferred cannot now be answered as a matter of law upon the pleadings. An issue may arise upon the evidence whether the injury can reasonably be found to come within the compensation law; but that question of law must be determined after the evidence has been taken.
Exception sustained as to count one and two of the plaintiff's writ, and overruled as to count three; remanded.
WHEELER, J., took no part in the decision; the others concurred.