Gallienne v. Becker Bros. Shoe Co.

• Decision Date: 02 February 1937
• Citation: Gallienne v. Becker Bros. Shoe Co., 88 N.H. 375, 190 A. 274 (N.H. 1937)
• Parties: GALLIENNE v. BECKER BROS. SHOE CO.
• Court: New Hampshire Supreme Court

190 A. 274

GALLIENNE

v. BECKER BROS. SHOE CO.

Supreme Court of New Hampshire. Rockingham.

Feb. 2, 1937.

[Copyrighted material omitted.]

Exceptions from Superior Court, Rockingham County; Johnston, Judge.

Proceeding under the Workmen's Compensation Law by Dorothy Johnson Gallienne, employee, opposed by the Becker Brothers Shoe Company, employer. Judgment was rendered for the employee, and the employer brings exceptions.

Exceptions overruled.

Petition, for compensation under P. L. c. 178. Trial by the court.

It appears from the findings that the defendant's factory is "situated between a river and a canal, the length of said factory being parallel with them in a northerly-southerly direction. Directly west of the canal and running parallel thereto is a Boston and Maine Railroad right-of-way containing four sets of tracks running to and from the town of Somersworth. West of the Railroad right-of-way and running parallel to both it and the canal is Main Street, so-called, in Somersworth. West of Main Street lie the business and residential districts of Somersworth. Between Main Street and the Railroad right-of-way lies a strip of land owned by the Somersworth Realty Company. This land is approximately one hundred feet wide and extends northward to the Boston and Maine Railroad's passenger station in Somersworth and southward a long distance between Main Street and the Railroad right-of-way preventing access directly to the factory from the highway. At a point directly opposite the main entrance to the defendant's factory a footpath begins. Its course is substantially direct, easterly, across the strip of land owned by the Somersworth Realty Company, down a flight of five steps, approximately eight feet in width with iron pipe handrails at either side to the railroad right-of-way; thence across the four sets of railroad tracks, filled in at that point for the convenience of foot travellers, to the canal; thence across the canal by a foot bridge to the factory yard and thence directly to the aforementioned main entrance."

In addition to this footpath, and about a quarter of a mile north of it, there "is a road designed for vehicular traffic likewise leading from a public highway in Somersworth across the Railroad right-of-way, across the canal by another bridge and thence to the factory."

The court found that the footpath was "the only conveniently located and readily accessible method for pedestrians, including employees, to use in reaching the defendant's factory from Somersworth," that it was commonly so used by a majority of the defendant's employees, and that the defendant and the Somersworth Realty Company, which, in addition to owning the strip of land described above was the defendant's lessor, "understood and agreed that the defendant's employees were to have the use of the footpath as a right-of-way to and from their work in the factory."

During the noon hour on August 3, 1933, the plaintiff and a friend, a coemployee, left the defendant's factory upon business of their own. Between five and ten minutes before 1 o'clock, while returning over the footpath for her afternoon's work, the plaintiff fell on the stairs and was injured. As a result of this injury, the court finds that "the plaintiff has been and will be incapacitated for more than three hundred weeks from August 3, 1933."

In conclusion the court ruled that the plaintiff "sustained a compensable injury arising out of and in the course of her employment," that, in addition to her medical expenses for the first thirty days after injury, "she is entitled to receive the minimum compensation payment of seven dollars per week for a period of three hundred weeks from the date of the accident less the amount she earned while working on part time," and "that sums earned after the date of the accident do not show conclusively future earning power."

On the basis of the foregoing findings and rulings the court awarded compensation in the sum of $2, 192.32 and gave judgment for the plaintiff in that amount.

The defendant's bill of exceptions to the foregoing findings and rulings, and to the admission and exclusion of certain evidence, was allowed by Johnston, J.

McLane, Davis & Carleton and George F. Nelson, all of Manchester, for plaintiff.

Hughes & Burns, of Dover, and Charles F. Hartnett, of Boston, Mass, for defendant.

WOODBURY, Justice.

The plaintiff's employment by the defendant as a "fancy stitcher" brought her in proximity to power-driven machinery in a factory where five or more persons were engaged in manual or mechanical labor. This is not disputed. She was, therefore, engaged in an employment described in P. L. c. 178, § 1, cl. 2, and it follows that she is entitled to compensation "whenever and wherever" she was injured, provided her injury arose "out of and in the course of her employment." White v. Boulia-Gorrell Lumber Co, 85 N.H. 543, 544, 161 A. 801.

The defendant contends that the plaintiffs injury cannot be found to have arisen "out of and in the course of her employment" because it occurred upon private property over which her employer had no control, and because it occurred, not at a time when the plaintiff was working at her machine, but when she was returning to her work after having been engaged during the noon hour upon business of her own. These contentions are not supported by the authorities.

The rule applicable to the facts of this case was stated by the Supreme Court of the United States in Bountiful Brick Co. v. Giles, 276 U.S. 154, 158, 48 S.Ct. 221, 222, 72 L.Ed. 507, 66 A.L.R. 1402 (a case in which the employee was killed when going to his work across a railroad right of way), in the following language: "And employment includes not only the actual doing of the work, but a reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done. If the employee be injured while passing, with the express or implied consent of the employer, to or from his work by a way over the employer's premises, or over those of another in such proximity and relation as to be in practical effect a part of the employer's premises, the injury is one arising out of and in the course of the employment as much as though it had happened while the employee was engaged in his work at the place of its performance. In other words, the employment may begin in point of time before the work is entered upon and in point of space before the place where the work is to be done is reached. Probably, as a general rule, employment may be said to begin when the employee reaches the entrance to the employer's premises where the work is to be done; but it is clear that in some cases the rule extends to include adjacent premises used by the employee as a means of ingress and egress with the express or implied consent of the employer."

This statement is in harmony with the authorities elsewhere. Sundine's Case, 218 Mass. 1, 105 N.E. 433, L.R.A.1916A, 318; Latter's Case, 238 Mass. 326, 130 N.E. 637; Jeffries v. Pitman-Moore Company, 83 Ind.App. 159, 147 N.E. 919; John Stewart and Son (1912) Limited v. Longhurst, [1917] A.C. 249; Procaccino v. E. Horton & Sons, 95 Conn. 408, 111 A. 594; Ross v. Howieson, 232 N.Y. 604, 134 N.E. 589; Judson Mfg. Co. v. Industrial Accident Commission, 181 Cal. 300, 184 P. 1.

In all of the cases cited above the employee was injured while either going to or coming from his work over private property not in his employer's control. In a majority of them the argument was made, as it was in the case at bar, that this lack of control over the property where the injury was suffered was fatal to the employee's right to recover under the Workmen's Compensation Act. In each instance, however, this argument was expressly repudiated, the test established being whether or not the employee was injured while using a way of ingress or egress which the employer either contemplated his employees would use or one which the employee used with either the express or implied consent of the master.

We do not now need to consider whether contemplation or consent is the true basis for the rule, because, in the case before us, it is clear that the defendant not only contemplated that the employees would use the footpath, but also that it consented to such use, and consent is the work of narrower implication. The evidence conclusively establishes that the defendant's local managing officer had actual knowledge of the use made of the footpath, that he did not object to it, and that he even posted a "checker" upon the bridge where the path crosses the canal for the purpose of examining the employee's passes.

Furthermore, the court found that the defendant and its lessor "understood and agreed" that the former's employees "were to have the use of the footpath as a right-of-way to and from their work in the factory." This finding is supported by the evidence of the oral lease. That understanding will not bear a construction so limited as to exclude from its terms the right of the lessee and its employees to use the only "conveniently located," usual and "readily accessible" means of approach by pedestrians to the leased premises. Latter's Case, supra. It is material because, having understood that the employees had a right to use the path, the defendant must not only have contemplated, but also consented that it would, in fact, be so used.

The cases principally relied upon by the defendant (Hills v. Blair, 182 Mich. 20, 148 N.W. 243; McInerney v. Buffalo & S. R. Corp., 225 N.Y. 130, 121 N.E. 806; Haggard's Case, 234 Mass. 330, 125 N.E. 565; Fumiciello's Case, 219 Mass. 488, 107 N.E. 349), are to be distinguished upon the ground that in them the employee was not using a way which his employer either contemplated or expected that he would use.

In Bell's Case, 238 Mass. 46, 130 N.E. 67, also cited by the defendant, the employee was killed by a train on a railroad right of way while crossing it on...