Cleona M. Bundy v. State of Vermont Highway Department

• Decision Date: 08 May 1929
• Parties: CLEONA M. BUNDY ET AL. v. STATE OF VERMONT HIGHWAY DEPARTMENT ET AL
• Court: Vermont Supreme Court

146 A. 68

102 Vt. 84

CLEONA M. BUNDY ET AL. v. STATE OF VERMONT HIGHWAY DEPARTMENT ET AL

Supreme Court of Vermont

May 8, 1929

February Term, 1929.

Master and Servant---Workmen's Compensation Act---Purpose of Act---Test for Determining Whether Injuries Come within Act---Requisites That Injury Arose Out of and in Course of Employment---When Injury Arises "in Course of" Employment---When Injury Arises "Out of Employment"---Insufficiency of Facts To Show That Injury Arose out of and in Course of Employment.

1. Ultimate purpose of Workmen's Compensation Act is to treat cost of personal injuries incidental to employment as part of cost of business.

2. Workmen's Compensation Act does not afford compensation for injuries or misfortunes which are merely contemporaneous or coincident with employment, or collateral to it, but essential connecting link of direct causal connection between injury and employment must be established before act becomes operative, and injury must be result of employment and flow from it as inducing proximate cause.

3. To make a claim compensable under Workmen's Compensation Act, injury must "arise out of" the employment, and it must be received "in the course of" the employment, neither alone being enough.

4. Under Workmen's Compensation Act, an injury arises in course of employment, at place where employee may reasonably be, and when he is reasonably fulfilling duties of his employment.

5. Under Workmen's Compensation Act, an injury arises out of an employment when it occurs in the course of it and as proximate result of it.

6. Where highway employee, when quitting work for day, found it impossible to reach his room on account of high water, and as a consequence went to a boarding house, 75 or 80 rods distant from his place of work, for the night, it then being an apparently safe place, but during the night such house was carried away by a flood, causing his death by drowning, held that accident causing his death did not arise out of and in course of his employment, notwithstanding that, but for his having been required to work on that day, he would have been in place of safety.

APPEAL from findings and order of commissioner of industries Washington County, awarding compensation to dependents of deceased workman under Workmen's Compensation Act. Order vacated, award set aside, and claim dismissed with costs.

Order vacated, award set aside, and claim dismissed with costs. Let the judgment be certified to the commissioner of industries.

Theriault & Hunt for defendants.

Porter Witters & Longmoore for the petitioners.

Present WATSON, C. J., POWERS, SLACK, MOULTON, and WILLCOX, JJ.

OPINION

SLACK

This is an appeal from an order of the commissioner of industries awarding compensation to the dependents of Clyde Bundy who was drowned in the great flood of November, 1927.

The material facts upon which the order was predicated are these: For some time prior to his death Bundy was employed by the Vermont Highway Department as engineer on a steam shovel which was used in highway construction work and was located about one-half mile south of Bolton toward Waterbury. He boarded and roomed at Waterbury which was conceded in argument to be a place of his own selection. It was "so rainy" November 3 that only a few men, out of about two hundred who were employed on the same job that Bundy was, worked. Those men were engaged in an attempt to keep the main road from Waterbury to Richmond, via Bolton, in passable condition. Bundy reported for work that morning and asked to be permitted to return to Waterbury, but was told that his services were needed at the shovel to provide gravel for emergency work on the highway. As a result of that talk he remained at the shovel until about five-thirty o'clock in the afternoon. After that time he was "a free agent to go where he saw fit." He tried to get to Waterbury, but failing to do so on account of the high water he went to the Hayes boarding house, so-called, which was located 75 or 80 rods from the steam shovel and put up for the night. This house was a private institution with which the State was in no way connected. Sometime during the night (the claimants say in their brief about ten-thirty o'clock) this house was carried away by the flood and all of its occupants (several in number), except one, were drowned.

It is fairly inferable from the findings, though not expressly so stated, that this house was swept away by the "sudden rush of water" that followed the collapse of the railroad embankment which was west of and in close proximity to said house.

At the time Bundy attempted to get to Waterbury the highway was passable for four or five miles in each direction from the Hayes boarding house and the commissioner says that possibly he could have escaped to the hills or taken refuge in some building which was not carried away. That this was so is apparent from the fact that a witness, who testified before the commissioner that he saw Bundy enter the boarding house, sought shelter elsewhere and escaped.

It is further found that Bundy's work kept him in that neighborhood until it was impossible for him to reach Waterbury or any public house except the one where he went; that in going to that house he did the natural and reasonable thing and was in no way negligent in so doing; that the average reasonable man could not then have foreseen that a flood of unprecedented proportion was impending.

It is also found that faithful work under trying conditions and performance of duty in an emergency exposed Bundy to an unusual and unexpected hazard from the elements, and made it impossible for him to seek safety by the accustomed routes and means of travel; that his work was the cause of his remaining in this extremely hazardous neighborhood, so that he was subjected to greater danger from the elements than other men employed in the construction work; and that his...