Reeves v. Dady Corporation , 95 Conn. 627 ( 1921 )

I am unable to agree with the opinion of the majority. The commissioner held that the injury arose "in the course of the employment" but did not "arise out of" the employment, and denied compensation. The plaintiff appealed and the trial court dismissed the appeal. The plaintiff appeals from this judgment, for error of the trial court in deciding that the injury did not arise out of and in the course of the employment, and from the judgment dismissing her appeal.

Plaintiff is mistaken in assigning as an error of the trial court, its holding that the injury did not arise in the course of the employment. Both the trial court and the commissioner held that the injury did arise in the course of the employment, but did not arise out of the employment. The sole question in the case is, did the injury arise out of the employment?

The room in which the accident happened was a large room occupying the entire second floor of the Dady Corporation silk mill. The decedent fell from an open doorway, protected not otherwise than by a three-inch bar across the doorway some three feet from the floor. The place in front of the doorway was one where the employees in this room and the decedent overseer of this room had the right to be in the course of their employment. A fall from this doorway to the hard-surface walk fifteen feet below, was almost certain to be dangerous to the life or body of whoever should so fall. If any employee, or the overseer, were close to and looking out of this doorway and became faint, or if he unexpectedly tripped while near the doorway, he was liable to fall under or over this narrow bar. It was an existing condition of the employment and a risk incident to the employment and the condition under which it was carried on.

"An injury arises out of an employment when it occurs in the course of the employment and is the result of a risk involved in the employment or incident to it, or to the conditions under which it is required to be performed."Marchiatello v. Lynch Realty Co., 94 Conn. 260,263, 108 A. 799. When we say the injury is the result of a risk involved in the employment, or incident to it, or to the conditions under which it is required to be performed, we mean a risk connected with the employment or incident to it, or to the conditions under which it is required to be performed. The injury is involved in or connected with the employment, when there be present in the circumstances of the accident some causal connection between the employment, or the conditions under which it is required to be performed, and the injury. Larke v. Hancock Mut. LifeIns. Co., 90 Conn. 309, 97 A. 320; McNicol's Case,215 Mass. 497, 102 N.E. 697. The faintness had nothing to do with the risk involved or connected with the condition of danger from the open doorway under which this business was conducted. The proximate cause of the decedent's injury was his fall, the proximate cause of his fall was his physical condition. That may have been idiopathic, or due to his own fault, or to something that had occurred while he was outside the course of his employment. In each case if, as a result of his physical condition, he fell and injured himself, the fall caused the injury and the physical condition the fall.

In Wicks v. Dowell Co., L. R. (1905) 2 K. B. 225, a workman employed in unloading coal from a ship was seized with an epileptic fit while at work, and fell into the hold and was injured. Collins, M. R., thus discusses the point as to whether the injury sustained "arose out of the employment": "But those authorities are in my judgment directly in point. A man is picked up at the bottom of the hold of a ship suffering from injuries; what is the cause of his condition? The proximate cause obviously is that he has fallen from a height. But it is suggested that if the occurrence is analyzed, it will be seen that the accident was caused by the idiopathic disease from which the man was suffering, and that therefore the accident did not arise out of the employment. At that point the authorities come in, to the effect that, although the cause of the fall was a fit, the cause of the injuries was the fall itself, and they are direct authorities that the injury in the present case was caused by an accident. Then did the accident arise out of the man's employment? When we get rid of the confusion caused by the fact that the fall was originally caused by the fit and the confusion involved in not dissociating the injury and its actual physical cause from the more remote cause, that is to say, from the fit, the difficulty arising from the words `out of employment' is removed."

In Robinson v. State, 93 Conn. 49, 51, 104 A. 491, Robinson left his work of supervising the repair of a highway and while crossing the highway diagonally in order to speak to a friend who had hailed him, he was struck and killed by a touring car. That the injury arose out of the employment was not contested before us. And we said the case differed from other cases cited in which the injury did not arise from a risk incidental to the performance of the contract of employment. In other words, that where the injury did arise from a risk incidental to the performance of the contract it might arise out of the employment. If Robinson, at the time he was hit, was engaged in his employment or something reasonably incidental to it, the risk did arise out of the employment. In Merlino v. Connecticut Quarries Co.,93 Conn. 57, 59, 104 A. 396, we disposed of a like question thus: "The injury arose out of the employment, at a place within the danger zone created by the business of the employer. That being so, the only question remaining is whether it was fairly consistent with the performance of the contract of employment that Merlino should be at or about the place at or about that time."

Our question is like that in the Merlino case, Was Reeves, when at the doorway, engaged in his employment or in something incidental to it? If while Reeves was supervising the work of his room he had either tripped or became faint, no matter whether due to his idiopathic condition, or from something said to him, and had fallen upon a machine in motion and suffered injury, beyond question the injury suffered would be held to arise in the course of the employment, and also out of the employment, because there was a causal connection between the employment and the injury which was a risk of the employment. If while Reeves was at work he had become faint and had gone to the doorway to get air, and had fallen through the open doorway, the accident would have arisen in the course of the employment, because his going to get air was an incident of the employment. He had not turned aside from the employment for his own purposes, he was getting himself into condition so as to be able to continue his employment. Hence there was a causal connection between the employment and the injury. In each of these instances the injury was due to the fall, and the fall to the faintness or to the tripping in a place where his employment took him, and from a risk which was one of the conditions of the employment. The risk from the open doorway was the same in each case.

In Wicks v. Dowell Co., L. R. (1902) 2 K. B. 225, the employment compelled the decedent to stand on the edge of the hold of the ship, hence the injury arose in the course of the employment, and the risk connected with the employment was imminent, and the causal connection between employment and injury present, hence the injury arose out of the employment. In the case at bar the decedent was not at the doorway because some of his work took him there. But that is not all. Was he there because something incidental to the employment took him there? While he engaged in a talk with his superintendent, which was unrelated to the employment, he had for the moment, ceased from his employment, not wholly, but partially, but this was not a turning from his employment for his own purposes. He was the overseer of the room and he may have continued his work of supervision, in part, at least, while he talked. His work necessarily was not continuous and he had leisure moments in the intervals of his work. How long he talked with the superintendent does not appear. But the finding is far from justifying the conclusion or inference that he had turned away from his employment to engage in some pursuit of his own. It is an almost necessary inference of this record that this conversation was a brief one. Employees not infrequently turn from their work to talk momentarily of matters unconnected with their employment. A superintendent, or the overseer under him, not infrequently does the same thing. In industrial communities these are facts of common knowledge. Conversations of this character are incidents of the work. "An employee is not, like a part of a machine operated by him, fixed to precisely the mechanical movements he must perform in order to discharge his industrial function. He may do whatever a human being may reasonably do while in the performance of his duty without such acts placing him outside of the course of his employment." 1 Honnold on Workmen's Compensation, § 105, p. 349.

Our immediate question is whether, as matter of law, an overseer who, while in the course of his employment engages in the place of his work, for a short time, with his superintendent in a conversation unrelated to the employment, and this makes him faint, and in consequence he walks to an open doorway to get air and there meets with an accident from a risk of his employment, — has so far turned from his employment for his own purposes that the accident cannot be said to have arisen out of the employment. We think the question, upon these facts and this record, is a much plainer one than that in Robinson's case. The injury to Reeves happened at a place where an overseer might reasonably be, consistently with the due performance of his duties as overseer. They did not require his uninterrupted attention, nor was he stationed in any particular part of this room. Therefore, when he went to a place in the room where he might reasonably be, temporarily, in order to restore his physical condition, he cannot be said to have turned from his employment for his own purposes any more than did Robinson who left his work, temporarily, and crossed the road to chat with a friend, and was killed while on the way.Robinson v. State, 93 Conn. 49, 104 A. 491; Wheelock v.Zevitas, 229 Mass. 167, 118 N.E. 279; Sundine's Case,218 Mass. 1, 105 N.E. 433. Such a holding is too narrow a construction of the contract of employment of this overseer. He was injured at a time when he was intent upon restoring his physical condition so that he might continue his work. But when an employee for his own purposes and not for those directly or indirectly related to or connected with the conditions of his employment ceases from his employment, though it be temporarily, and is injured through a risk connected with the employment, his injury cannot be held to have arisen out of his employment. There was then no causal connection between that and his injury. For example, employees who engage in fighting during working time are in the course of their employment, but if injury occurs it does not arise out of the employment. This is a clear departure from their work to serve exclusively their own ends. The risk was not a risk of the employment. There was no reasonable connection between the injury suffered in consequence of a voluntary fight and the employment. Neither the employment nor the conditions under which it was pursued was responsible for the injury. Jacquemin v. Turner Seymour Mfg. Co., 92 Conn. 382, 387, 103 A. 115. But in the case before us the open doorway was a continuing risk under which this employment was pursued. Reeves was injured during the period of his employment, in the place of his employment, and while he was seeking to recover from the fainting condition into which his voluntary talk, unconnected with the employment, had plunged him, and this was an incident of his employment.

I agree with the commissioner and with the trial court in holding that this injury occurred in the course of Reeve's employment, but I think that the fair application of our decisions to the case in hand should lead to the conclusion that the injury arose out of the employment.

In this opinion CURTIS, J., concurred.