Flanagan v. Webster & Webster

• Decision Date: 04 May 1928
• Citation: 142 A. 201,107 Conn. 502
• Parties: FLANAGAN v. WEBSTER & WEBSTER ET AL.
• Court: Connecticut Supreme Court

142 A. 201

107 Conn. 502

FLANAGAN v. WEBSTER & WEBSTER ET AL.

Supreme Court of Errors of Connecticut.

May 4, 1928

Case Reserved from Superior Court, New Haven County; Isaac Wolfe Judge.

Proceeding under the Workmen's Compensation Act by John Flanagan claimant, opposed by Webster & Webster, employer, and another. A finding and award of the compensation commissioner in favor of plaintiff was, on appeal to the superior court reserved by that court on the finding of the commissioner for the advice of the Supreme Court of Errors. Judgment advised dismissing appeal.

Maltbie and Banks, JJ., dissenting.

Harold K. Watrous, of West Hartford, for appellants.

Frank P. McEvoy, of Waterbury, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

WHEELER, C.J.

The commissioner made an award of compensation to the plaintiff claimant, from which defendants appealed. The superior court reserved the case upon the finding of the commissioner for the advice of this court. On December 23, 1926, the plaintiff was and had been for less than two weeks prior to this date in the employ of the defendant employer and at work upon the state highway in the town of Cheshire. The plaintiff lived in the village of West Cheshire. The only way in which he could reach his work was through transportation furnished by the defendant employer in one of its trucks which stopped for him in the morning usually at a point on the state road and carried him to his place of work. It ordinarily came along in time to get the men to their work at 6:30 a. m. On the stated morning the plaintiff left his home and walked to the state road where the truck usually picked him up. It was late on this morning; the weather was cold and because of this the plaintiff walked along the road in order to keep warm, and upon its left side. The truck came up with him, and stopped on the right-hand side of the road for him to board it. While plaintiff was crossing the highway to board the standing truck, he was struck by an automobile and sustained a fracture of the femur. The commissioner held upon these facts that the plaintiff when injured was doing something incidental to his employment, and that the injury arose out of and in the course of his employment. The defendants claimed that, as the plaintiff had not actually boarded the truck, he was not on premises controlled by the employer, and consequently, the injury did not arise out of and in the course of his employment. If plaintiff's injury occurred in the course of his employment, manifestly it must have arisen out of the employment. The sole question for our determination is, Did plaintiff's injury arise in the course of his employment? " In the course of points to the place and circumstances under which the accident takes place and the time when it occurred." An injury is " said to arise in the course of one's employment when it occurs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment, or engaged in doing something incidental to it." Larke v. Hancock Mut. Life Ins. Co., 90 Conn. 303, 308, 97 A. 320, L.R.A. 1916E, 584; Whitney v. Hazard Lead Works, 105 Conn. 512, 517, 136 A. 105. As a general rule employees will not be regarded as in the course of their employment while going to or returning from the place of their employment. We note in Lake v. Bridgeport, 102 Conn. 337, 128 A. 782, that the rule is subject to many exceptions. Four of these we specify in Whitney v. Hazard Lead Works, supra, and all of the four exceptions find illustration in our decided cases. Two of these exceptions are:

" Where the employer contracts to and does furnish transportation to and from work," and " where the employee is using the highway in doing something incidental to his employment, with the knowledge and approval of the employer."

The award made to the plaintiff claimant must be brought within these exceptions if it is to be sustained.

The defendant employer furnished the plaintiff transportation to and from his place of work. The work began when the employee reached the place of work. The employment certainly included the period of transportation, for that was by the terms of the employment made incidental to it by the express agreement of the employer. And we have held that the relation of master and servant exists during the period of transportation, whether the transportation be under the express agreement of the employer, or by his implied consent inferred from his knowledge of the practice of transporting the employee and his expectation that this practice would continue. Swanson v. Latham, 92 Conn. 87, 101 A. 492, and Sala v. American Sumatra Tobacco Co., 93 Conn. 82, 105 A. 346, were cases involving injuries to an employee while riding, pursuant to his contract of employment, to and from his work, in a conveyance furnished by his employer. Saba v. Pioneer Contracting Co., 103 Conn. 559, 131 A. 394, was a case involving injury to an employee while riding to and from his work with the knowledge of the employer of the practice, and his continued acquiescence in it, resulting in affixing to the contract of employment as an incident the obligation of transporting the employee. In re Donovan, 217 Mass. 76, 104 N.E. 431, Ann.Cas. 1915C, 778; article by Professor Bohlen, 25 Harv. Law R. 401 et seq. Under the common law, as we have applied it, the relation existing between the employee and employer under a like transportation was that of master and servant. Pigeon v. Lane, 80 Conn. 237, 67 A. 886, 11 Ann.Cas. 371.

In all of the cases we have had before us, raising the question whether the transportation was an incident of the employment, the injury to the employee occurred while he was being transported in the conveyance furnished by the employer with his express or implied consent. Our attention is particularly directed by defendants' counsel to the statement in Swanson v. Latham, supra, that, " the employment [of Swanson] began when the decedent boarded the automobile at Willimantic," and from this counsel argue that the employment of the plaintiff had not begun when he was injured while crossing the highway for the purpose of boarding the truck upon which the employer furnished plaintiff transportation to his work. Upon the facts in that case the statement was correct; the employment did begin when the employee boarded the automobile. We did not intend by this statement to exclude other conditions which the employer might expressly or impliedly have attached to the employment, and which had their inception prior to the boarding of the automobile. Thus the employer might designate the place where the automobile was to be boarded; it might be on private property or on a public highway. If the employee went to the designated place within a reasonable time prior to the time when he was to board the automobile, he would, from the time he reached the designated place, be then carrying out the direction of his employer, and that direction would become an incident of the employment and a part of the means of transportation, just as a railway station, or a bus waiting room, is a necessary incident of the transportation of the passengers of the railway or bus line. Similarly when an employee is directed to report each morning at a given place, or to a certain person, to receive instruction as to where he is required to work that day, the relation of master and servant has been held to commence at the time he reported, and his employment to have begun at that time, and that the injury thereafter occurring, prior to the time of actually beginning work, was suffered in the course of his employment. Milwaukee v. Althoff, 156 Wis. 68, 145 N.W. 238, L.R.A. 1916A, 327; Milwaukee v. Industrial Com., 185 Wis. 311, 201 N.W. 240. So it has been held that the fact that the injury occurs while the employee was in the act of boarding the train and not while being transported does not relieve the employer of liability for compensation. Fisher v. Tidewater Building Co., 96 N.J.Law, 103, 114 A. 150. Nor does it relieve the employer where the employee is injured when upon his employer's premises and engaged in the preparation necessary for beginning the work of his employment. Terlecki v. Strauss, 85 N.J.Law, 454, 89 A. 1023. Other illustrations of the underlying principle of these cases are found in the class of cases represented by Procaccino v. Horton & Sons, 95 Conn. 408, 111 A. 594; Merlino v. Conn. Quarries Co., 93 Conn. 57, 104 A. 396; Corvi v. Stiles & Reynolds B. Co., 103 Conn. 449, 130 A. 674; Cudahy Packing Co. v. Parramore, 263 U.S. 418, 423, 44 S.Ct. 153, 68 L.Ed. 366, 30 A.L.R. 532; and Bountiful Brick Co. v. Giles, 48 S.Ct. 221, 72 L.Ed. 507, decided February 20, 1928. " It is clear," said Collins, M. R., " that you cannot look at the moment when he begins his work as the moment when he gets into the employment." Sharp v. Johnson & Co., Limited (1905) 92 L. T. 675, 7 W. C. C. 28, 30.

If the plaintiff had, when he walked from his home to the state road where his employer's truck usually picked him up remained at this point, and was there injured while...