Brousseau v. Blackstone Mills, Inc.

• Decision Date: 26 March 1957
• Citation: 130 A.2d 543,100 N.H. 493
• Parties: Josephine BROUSSEAU v. BLACKSTONE MILLS, Inc. et al.
• Court: New Hampshire Supreme Court

Page 543

130 A.2d 543

100 N.H. 493

Josephine BROUSSEAU v. BLACKSTONE MILLS, Inc. et al.

Supreme Court of New Hampshire.

Argued Jan. 3, 1957.

Decided March 26, 1957.

Danais, Loughlin & Danais, Manchester, Martin F. Loughlin, Manchester, orally, for plaintiff.

McLane, Carleton, Graf, Greene & Brown and Jack B. Middleton, Manchester, Jack B. Middleton, Manchester, orally, for the defendants.

KENISON, Chief Justice.

There are literally hundreds of cases that purport to lay down a general going-and-coming rule to the effect that injury sustained going to and from work does not arise out of and in the course of the employment. Voehl v. Indemnity Ins. Co. of North America, 288 U.S. 162, 53 S.Ct. 380, 77 L.Ed. 676; Moosebrugger v. Prospect Presbyterian Church, 12 N.J. 212, 96 A.2d 401; Risenfield, Forty Years of American Workmen's Compensation, 35 Minn.L.Rev. 525, 544. The so-called rule has proved to be of doubtful utility and is riddled with various exceptions. 'However, the rule as originally laid down was soon discovered to be an unjust one when applied in all cases of travel to and from the home of the employee, and exceptions began to multiply in form and number.' 8 Schneider, Workmen's Compensation (Perm.Ed.1951) § 1710, p. 7. Some authorities considered that there were four well recognized exceptions to the going-and-coming rule, Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469, 67 S.Ct. 801, 91 L.Ed. 1028; Schneider, supra, while others considered that there were scores of exceptions which were multiplying from year to year. 14 NACCA Law Journal 36-46. Other commentators have recognized that the going-and-coming rule tended to be arbitrary and artificial in many aspects. 1 Larson, Workmen's Compensation, § 15.11. In this jurisdiction we do not regard the going-and-coming rule as either necessary or particularly useful in deciding coverage under the Workmen's Compensation Law.

It has been suggested that employees should be covered for a reasonable period of time prior to or after working hours and for a reasonable distance before reaching or after leaving the employer's premises. Horovitz, Workmen's Compensation, p. 161; 21 Ind.L.J. 473, 553. 'This only leads to a new question: by what standard do you judge the reasonableness of the distance? If you are on your way to a downtown office building, and slip on the ice, it is difficult to see how a distinction could be drawn between a fall twenty feet from the door, twenty yards, or twenty blocks. Something more tangible than reasonable nearness is needed.' 1 Larson, Workmen's Compensation, § 15.12. Larson maintains that injuries off the premises of the employer are covered under the Workmen's Compensation Law only if they occur at a point where the employee is within range of dangers associated with the employment, using as an example the case of a claimant who is subjected to a particular risk in crossing railway tracks near the plant entrance. Larson, supra, § 15.15. See annotation 50 A.L.R.2d 363.

The employment status may exist before actual work begins or continue after actual work has ceased. Gallienne v. Becker Bros. Shoe Co., 88 N.H. 375, 190 A. 274; Sullivan v. Sullivan, 141 Conn. 235, 104 A.2d 898. The fact that the employee is traveling to or from work on a public way does not necessarily exclude coverage under the Workmen's Compensation Law. Snook v. Portsmouth, 90 N.H. 441, 10 A.2d 654; Whitham v. Gellis, 91 N.H. 226, 227, 16 A.2d 703. 'Injury on such highway is governed by the principles to be applied in any other case where injury occurs when plaintiff is injured off the premises while coming to or returning from work, i.e., by whether what caused the injury could properly be considered a hazard of the employment.' E. I. Du Pont De Nemours Co. v. Hall, 4 Cir., 237 F.2d 145, 150. See annotation 85 A.L.R. 97; 8 Schneider, Workmen's Compensation (Perm.Ed.1951) pp. 7, 8, 37.

There are cases which have allowed compensation for falls on an icy sidewalk or street when the employee was going to or coming from work. Barnett v. Britling Cafeteria Co., 225 Ala. 462, 143 So. 813, 85 A.L.R. 85; Bales v. Service Club No. 1, 208 Ark. 692, 187 S.W.2d 321. In a greater number of cases recovery has been denied. Gullo v. American Lead Pencil Co., 119 N.J.L. 484, 196 A. 438; Donzelot v. Park Drug Co., Mo.App., 239 S.W.2d 526; Otto v. Independent School District, 237 Iowa 991, 23 N.W.2d 915; Amento v. Bond Stores, Inc., 274 App.Div. 863, 82 N.Y.S.2d 1; annotation 85 A.L.R. 97. Generally speaking, however, recovery has been allowed in off-the-premises cases only where there has been some particular risk which the employer could be said to have caused or allowed to exist. Smith v. Camel Mfg. Co., 192 Tenn. 670, 241 S.W.2d 771. 'It is significant that practically all successful...