Donovan v. Abbott Worsted Mills, Inc.

• Decision Date: 02 January 1940
• Docket Number: No. 3131.,3131.
• Citation: Donovan v. Abbott Worsted Mills, Inc., 90 N.H. 450, 10 A.2d 456 (N.H. 1940)
• Parties: DONOVAN v. ABBOTT WORSTED MILLS, Inc.
• Court: New Hampshire Supreme Court

10 A.2d 456

DONOVAN

v. ABBOTT WORSTED MILLS, Inc.

No. 3131.

Supreme Court of New Hampshire. Hillsborough.

Jan. 2, 1940.

Transferred from Superior Court, Hillsborough County; Lorimer, Judge.

Proceeding under the Workmen's Compensation Act (Pub.Laws 1926, c. 178) by Dennis R. Donovan, claimant, opposed by the Abbott Worsted Mills, Incorporated, employer. Hearing by the court with decree for plaintiff. The defendant excepted to the denial of its motion to dismiss. Transferred by Lorimer, J.

Decree affirmed.

Richard F. Upton and Robert W. Upton, both of Concord, for plaintiff.

Alvin A. Lucier, of Nashua, for defendant.

ALLEN, Chief Justice.

By the trial court's findings, the plaintiff was an overseer in the defendant's mill at Wilton. It was a part of his work "to order and have on hand when needed supplies and parts required to keep the looms in good workable condition and repair or supervise repairs to the looms when necessary." He was hurt while driving his son's automobile from Wilton to Manchester where he was going to buy some material needed to correct a defective process in the manufacture of cloth at the mill.

The defendant's exception rests on two grounds, one, that the plaintiff was not acting within the scope of his employment when he was hurt, and two, that his injuries did not arise out of the course of his employment even if they were incurred in the course of it.

In respect to the first ground, the court found that the plaintiff "had the duty and authority" to obtain the material "in a reasonable manner", that he adopted a reasonable manner and "acted within the scope of his employment." Treating the defendant's exception as the plaintiff has done, with effect to raise the issue of the sufficiency of the evidence to warrant the finding, it may not be said that the finding was erroneous as matter of law.

It is conceded that a part of the plaintiff's work as overseer was his charge of materials, supplies and parts kept on hand for use as needed in repairing machinery and facilitating its operation and that he was to keep track of the supply so that its adequacy would be maintained. His authority to make purchases for this purpose was properly found from his testimony in cross-examination as follows:

"Q. You were the sole boss in your department? A. Yes.

"Q. Now if you wanted a part for a machine—or any thing else, how did you get it? A. I got it through the office.

"Q. You mean you would—make a request at the office? A. Make an order.

"Q. You didn't then go and take your own or somebody else's car and go off and get that, did you? A. When I didn't have it on hand, I would have to. I didn't have to do it when I had it on hand; I would order it before.

"Q. That is, it was part of your job to keep the necessary equipment and materials and things on hand? A. Yes."

The material which the plaintiff planned to obtain in Manchester was out of stock at the mill, the supply having been exhausted, as he testified, by the loom fixers without his knowledge until the special need of it on the day of the accident developed. There was therefore special occasion for going to Manchester, as the court found. If the occasion was an unusual one, it was yet one within his authority to meet. This might be found from the following testimony elicited from him:

"Q. There was nothing extraordinary about the fact that you were going to get some new sandpaper and replace that old sandpaper with new: that is something you had to do with routine? A. That is my work to do it, as a buyer.

"Q. That is, that was your work? A. Yes."

The situation was one "that might be expected to arise" (New Hampshire Wholesale Fruit Co. v. Paine, 80 N.H. 540, 120 A. 78, 79), and authority to act therefore existed, although occasion thus to act might be infrequent. His conduct was findably within the reasonable implications of the terms of his employment. It was not an improper...