Fox v. City of Manchester

• Decision Date: 05 January 1937
• Citation: Fox v. City of Manchester, 88 N.H. 355, 189 A. 868 (N.H. 1937)
• Parties: FOX v. CITY OF MANCHESTER.
• Court: New Hampshire Supreme Court

189 A. 868

FOX

v. CITY OF MANCHESTER.

Supreme Court of New Hampshire. Hillsborough.

Jan. 5, 1937.

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

Proceeding under the Workmen's Compensation Act by Charles J. Fox, by his next friend, Frank M. Fox, employee, opposed by the City of Manchester, employer.On transfer on exceptions by defendant, and also on transfer, without ruling, of question of method of calculating compensation and question of applicability of statute to facts found.

Case discharged.

Petition, for compensation under P.L. c. 178, as amended.The defendant excepted to the denial of its motion to dismiss the petition made at the close of the plaintiff's evidence and renewed at the close of all the evidence.The special grounds on which the motion was based are stated in the opinion.The defendant also excepted to the finding that the plaintiff suffered an accidental injury which arose out of and in the course of his employment.Transferred by Woodbury, J., who also transferred, without ruling, the question of the method to be employed in calculating the plaintiff's compensation and the question of the applicability of Laws 1933, c. 88, to the facts found.

The findings are as follows:

"Charles James Fox, hereinafter called the petitioner, was a temporary employee of the City of Manchester.He was first employed by the City on January 25, 1935.On the evening of that day he presented himself at the defendant's city yard and asked for employment shoveling snow.Employment was given to him, but nothing was said about wages, hours, or conditions of work.After eight hours work he turned in his shovel at the city yard and was paid off at the rate of forty cents per hour.

"About nine P. M. on the night of January 26, 1935, he again presented himself at the city yard and again sought employment shoveling snow.He was again successful and was put to work with about eight others on a snow-loader operated by a gasoline engine.This machine was used on the streets of the city to load snow into trucks.About eleven o'clock that night he was relieved from duty on the snow-loader and sent down to the Granite Street Bridge to shovel snow.

"In the floor of this bridge there was a trap-door opening directly into the Merrimack River below.This door was open and was used to dump snow into the river.Snow was collected from the streets in trucks, hauled to the bridge, and dumped near the trap.It was the duty of the petitioner and about seven others, to shovel this snow down through the open door.He continued at this employment until eight o'clock the following morning with the exception of about half an hour at midnight when he went to a near-by lunch room for a meal.

"During the night of January 26 and 27, 1935, and during the morning of the 27th, the temperature hovered around zero.

"At eight o'clock on the morning of January 27, the petitioner went from the bridge to the city yard, a distance of approximately quarter of a mile, turned in his shovel, and was paid off at the rate of forty cents per hour for eight hours and sixty cents per hour, (being time and a half for overtime), for the additional three hours, making in all, five dollars.He then stood in a building at the city yard near a stove for about half an hour for the purpose of warming himself, and then walked to his home, a distance of about a mile.He did not go out doors again that day.

"The record does not indicate that the petitioner realized that he had suffered any injury until about eleven o'clock that morning when he removed his shoes and discovered that his left foot was frost bitten.He attempted to restore circulation himself but was unsuccessful, and in the early afternoon a physician came and treated the foot.As a result of the frost bite part of the great toe on the left foot, and parts of the two adjoining toes had to be removed.

"I find that the petitioner's eighteenth birthday occurred on January 28, 1935; that he received the frost bite during the night of January 26-27, 1935, and that it occurred while he was employed by the defendant on the Granite Street Bridge.

"I further find that the petitioner's employment on the bridge required him to stand in or near large quantities of snow deposited there by trucks; that it required him to stand in an exposed position near an open trap-door in the floor of the bridge; and that the work was intermittent in that there were occasions during the night when it was necessary for him to wait between trucks.I find that the conditions under which the petitioner worked were such as to expose him to the inclemency of the weather more than persons in general were exposed during the night in question; and that, in freezing his foot, he suffered an accidental injury arising out of and in the course of his employment.The frost bite was caused in part by the cold and in part by his unusual exposure to the cold due to the adverse conditions under which he labored.

"It follows from the foregoing that he is entitled to compensation.

"The petitioner's pay while employed by the defendant before the injury was forty cents per hour for an eight hour period with time and a half for overtime.He was not hired on a weekly basis, but only as the need for snow shovellers arose.There was no established number of hours per week for such employment as that in which the petitioner was engaged when he was injured."

The court further found that the plaintiff was totally disabled until July 4, 1935; that his medical bills for the first 30 days after the injury amounted to $117, and that for 200 weeks after July 4, 1935, his earning capacity would be reduced 25 per cent. as a result of his injury.

Sullivan. & Sullivan and Thomas E. Dolan, all of Manchester, for plaintiff.

Demond, Woodworth, Sulloway, Piper & Jones and Franklin Hollis, all of Concord, for defendant.

MARBLE, Justice.

Since in maintaining its streets a city is engaged in the performance of a governmental duty, it is not liable at common law to a highway laborer injured while in its employ.O'Brien v. Derry, 73 N.H. 198, 60 A. 843;Gates v. Milan, 76 N.H. 135, 80 A. 39, 35 L.R.A.(N.S.) 599.The Workmen's Compensation Act(P.L. c. 178, as amended) presupposes the existence of the common-law incidents of master and servant in those employments within its scope.Consequently a city, by accepting the provisions of the act, does not make itself subject thereto except in respect to those duties which it performs in a private corporate capacity.

It is stated in the plaintiff's brief and was tacitly conceded by defendant's counsel in oral argument that the defense in the present case is being conducted by an insurance company.In answer to the Presiding Justice's inquiry at the trial, and also in answer to inquiries during oral argument in this court, counsel expressed the desire that, so far as the applicability of chapter 178 is concerned, the defendant be bound by the provisions of the act precisely as though the city were a private employer.

The question whether, on appropriate proceedings, the defendant could be enjoined from thus renouncing a legitimate defense or from spending public money "to insure against a non-existent liability"¹ is not here presented.The motion to dismiss the petition is limited to the grounds therein assigned.Puchlopek v. Portsmouth Power Company, 82 N.H. 440, 441, 136 A. 259.

The defendant apparently concedes that the plaintiff's work was in a "place" near power-driven "machinery," as required by the terms of the statute(seeDavis v. W. T. Grant Company, 88 N.H. ——, 185 A. 889, 892), and the only reasons advanced in support of its motion are (1) that the plaintiff's injury did not occur in the course of his employment; (2) that the injury was not an accident within the meaning of the act; and (3) that the plaintiff has failed to show the necessary causal connection between his employment and his injury.

The plaintiff worked all night shoveling snow, and the temperature for the last six hours averaged nearly 4 degrees below zero.Late in the forenoon he discovered that his toes were frozen.He described their appearance as white and hard.He first applied a remedy procured from a drug store and then sent for a doctor.The doctor found that the left foot "was extremely frostbitten."He stated on cross-examination that the toes were black.A physician, called to the stand by the defendant, testified that if the plaintiff's toes were frostbitten that night he would not expect them to be black the next day, but he"would expect possibly a bluish discoloration."This testimony was not controlling.A nonsuit is not ordered on evidence introduced by the defendant.Giroux v. Insurance Co., 85 N.H. 355, 356, 159 A. 142, and cases cited.

Even though the plaintiff did not state that he suffered any pain that night and even though he did not realize that his foot was frozen until he looked at it in the morning, the fact remains that his toes were severely frostbitten when the doctor examined them that afternoon.The evidence clearly warrants the finding of the...