Brown v. Conway Electric Light & Power Co.

• Decision Date: 05 May 1925
• Citation: 129 A. 633
• Parties: BROWN v. CONWAY ELECTRIC LIGHT & POWER CO.
• Court: New Hampshire Supreme Court

129 A. 633

BROWN

v. CONWAY ELECTRIC LIGHT & POWER CO.

Supreme Court of New Hampshire. Carroll.

May 5, 1925.

Exceptions from Superior Court, Carroll County; Kivel, Judge.

Petition by Dana J. Brown, as administrator, against the Conway Electric Light & Power Company. Decree for plaintiff, and defendant excepts. Exception sustained, and petition dismissed.

Petition in equity under Laws 1911, c. 163. The plaintiff's intestate was electrocuted while present at and in control of some work at a transforming station of the defendant. He was the defendant's treasurer and general manager. A decree awarded compensation. The defendant excepted to the denial by Kivel, C. J., of its motion to dismiss the petition. Further facts appear in the opinion.

George T. Hughes, of Dover, for plaintiff.

William J. Britton, of Wolfeboro, for defendant.

ALLEN, J. The exception presents the inquiry whether there was sufficient evidence to sustain an award of compensation. The plaintiff's position is understood to be that the evidence warrants a finding that the decedent, as the defendant's general manager, was engaged in labor at the time of his fatality, which brought him within the application of the act, or, if the evidence does not support such a finding, it tends to show that the decedent was then acting in a dual capacity, and as general manager had assigned to himself work of manual or mechanical character in the undertaking on hand and which he was engaged in doing.

The act applies "only to workmen engaged in manual or mechanical labor" in certain employments (Laws 1911, c. 163, § 1), injured "by accident arising out of and in the course of the employment." Id., § 2. It follows that, unless the decedent was such a workman and so injured, his dependents are not entitled to the benefit of the act. If an officer or executive agent of an employer has no duties of manual or mechanical labor, the act does not constitute him a workman within its provisions.

While the act is liberally construed (Lizotte v. Nashua Mfg. Co., 78 N. H. 354, 100 A. 757; Morin v. Nashua Mfg. Co., 78 N. H. 567, 103 A. 312; Mulhall v. Nashua Mfg. Co., SO N. H. 194, 115 A. 449), "it cannot be given 'a meaning plainly repugnant to its terms'" (Lizotte v. Company, supra). Much less can a meaning be given which is not only inconsistent with its terms but also outside of its purpose and spirit. Situations not within its object are not to be included and embraced within its terms, unless the language admits of no other meaning.

Officers and executive agents do not have the occasion for the benefit of the act which ordinary workmen have, and the legislation was not passed in their interest. Their need of such relief as the act gives is negligible compared with the need of ordinary workmen and the latters' dependents. The economic and industrial history on account of which such legislation has been promoted calls for no or but slight protection in favor of such service.

The phraseology of the act confirms its essential purpose as to those who may enjoy its benefit. The language is of exclusion and not of inclusion. The limitation of its application to "workmen engaged in manual or mechanical labor" refutes argument that officials and executive agents come within its shelter. Their expressed exclusion would hardly make the act clearer and more definite. While such persons render service, the service is of a kind outside of the act. Neither its purpose nor terms place control and management on the same footing with work done subject thereto.

The exclusion of an employer's officers and executive agents having no duties as workmen from the benefit of compensation acts is supported by authority. Recognition is made of the principle that such persons may at the same time be acting in a dual capacity with both the status of agent and employe, and in the latter capacity be within the application of the legislation. The question resolves itself into one of construction of the particular statute under which relief is sought, and differences of wording in the different statutes make some difference in the scope of its benefits. But the weight of authority gives general support to the distinctions herein made. Skouitchi v. Chic Cloak & Suit Co., 230 N. Y. 296, 130 N. E. 299, 15 A. L. R. 1285; Kolpien v. O'Donnell Lumber Co., 230 N. Y. 301, 130 N. E. 301; Hubbs v. Addison Electric Light & Power Co., 230 N. Y. 303, 130 N. E. 302; Bowne v. S. W. Bowne Co., 221 N. Y. 28, 116 N. E....