Allison v. Brown & Horsch Insulation Co.

• Court: New Hampshire Supreme Court
• Writing for the Court: KENISON
• Citation: Allison v. Brown & Horsch Insulation Co., 102 A.2d 493, 98 N.H. 434 (N.H. 1954)
• Decision Date: 18 February 1954
• Parties: ALLISON et al. v. BROWN & HORSCH INSULATION CO., Inc. et al.

Page 493

102 A.2d 493

98 N.H. 434

ALLISON et al. v. BROWN & HORSCH INSULATION CO., Inc. et al.

Supreme Court of New Hampshire.

Argued Dec. 1, 1953.

Decided Jan. 29, 1954.

Rehearing Denied Feb. 18, 1954.

John DeCourcy, Portsmouth, for plaintiff Hanna.

Charles F. Hartnett, Dover, for defendants.

KENISON, Chief Justice.

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, § 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's 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. Somersworth Shoe Company, 97 N.H. 360, 89 A.2d 538. The statute clearly contemplates that the 'injury to a workman' be 'caused in whole or in part' by his own intoxication. Connor Co. v. Industrial Commission, 374 Ill. 105, 28 N.E.2d 270; England v. Fairview School District, 58 Idaho 633, 77 P.2d 655. 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, 48 A.2d 921. 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. City of Biddeford, 138 Me. 26, 29, 20 A.2d 715. 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, 297 N.W. 818; 6 Schneider, Workmen's Compensation (Perm.Ed.) § 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., 10 Cir., 195 F.2d 462; Parotto v. Standard Paving Co., 345 Ill.App. 486, 104 N.E.2d 102. Where the employee's deviation has ceased, '* * * with a completed...