Herbst v. Hat Corp.. Of America

• Decision Date: 19 March 1943
• Citation: 31 A.2d 329,130 Conn. 1
• Court: Connecticut Supreme Court
• Parties: HERBST v. HAT CORPORATION OF AMERICA et al.

130 Conn. 1

31 A.2d 329

HERBST

v.HAT CORPORATION OF AMERICA et al.

Supreme Court of Errors of Connecticut.

March 19, 1943.

Appeal from Superior Court, Fairfield County; King and Daly, Judges.

Proceeding under the Workmen's Compensation Act by Anna D. D. Herbst, claimant, opposed by the Hat Corporation of America, employer, and another. The Compensation Commissioner for the Fourth District dismissed the claim and claimant appealed to the Superior Court in Fairfield County. From a supplemental judgment dismissing claimant's appeal from the action of the commissioner and again dismissing her claim on remand, claimant appeals.

Error and case remanded with directions.

John Keogh, Jr., of South Norwalk (William O. Keene, of South Norwalk, on the brief), for appellant (plaintiff).

Francis J. Moran and John E. McNerney, both of New Haven, for appellees (defendants).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

JENNINGS, Judge.

The amended finding of the commissioner, as corrected, discloses the following facts: The plaintiff is the widow of Julius Herbst, who for fifteen years before his death worked as a maintenance man at the East Norwalk plant of the Hat Corporation of America, hereinafter referred to as the defendant. At about 9:40 a.m. during the regular working hours of Herbst on August 31, 1939, he secured a requisition for five pounds of nails and took it from plant 3 of the defendant to plant 1, situated some little distance away. When Herbst arrived at plant 1 the nails were not obtainable and he started to return to plant 3. There were three possible routes between plant 1 and plant 3: One by the public highways, one through an adjoining coal-yard and the other up a pathway to a spur track on the property of the New York, New Haven and Hartford Railroad Company and then along the track to another path which descended to plant number 3. The last route was the shortest and this Herbst took. The defendant, by signs posted in its plant and by personal instruction to its employees, had forbidden the use of this path along the spur track. In spite of this the path, to the knowledge of the defendant was frequently used by its employees in going back and forth between the plants, and while the defendant had put up signs not to use railroad property, and sporadically had forbidden employees to use it, it had made no great or successful effort to stop that use.

When Herbst reached the track he was carrying a length of pipe. The pipe was not for use in his work or for use in the plant. Where or how he procured the pipe did not appear. While Herbst was walking along the track with this pipe, it got into the path of a passing train and was struck by the train, and as a result Herbst was killed. The train did not strike Herbst and he would not have been hurt if he had not been carrying the pipe. Herbst was not guilty of serious and wilful misconduct. On these facts the commissioner concluded that Herbst did not sustain an injury arising out of and in the course of his employment which resulted in his death.

[1] [2] [3] [4] [5] There is considerable question whether the conclusion that the injury did not arise in the course of the employment is supported by the finding as corrected. Whether the injury arose out of the employment depends upon the determination of the intent and purpose with which the acts were performed by Harbst. A finding of a fact of this character is the finding of a primary fact. Herbst was instantaneously killed and no information as to his purposes or intent was available from his lips. Since there is no direct evidence of these facts, the question is whether they can reasonably be inferred from all of the evidence in the case. Howe v. Watkins Bros., 107 Conn. 640, 644, 142 A. 69; Conn.App.Proc., § 77 et seq., § 123. Perusal of the evidence has convinced us that the misapprehension of the commissioner of the true standards and applicable rules of law, perhaps unconsciously but nevertheless effectively, resulted in a finding of which the plaintiff justly complains. The burden of proving that the injury arose in the course of and out of Herbst's employment was on the plaintiff. This ordinarily and in this case presents a question for the determination of the commissioner and we have no intention of usurping his function. Rosenberger v. Mar-Bern Coal Co., Pa.Super., 30 A.2d 153, 158; Fiengo v. E. Vitale, Inc., 125 Conn. 559, 562, 7 A.2d 385. It should appear, however, beyond question, that in determining this issue the correct standards were applied. The very recent case of Jones v. Town of Hamden, 129 Conn. 532, 534, 29 A.2d 772, is exactly in point. In that case this issue was held to be one of fact but the case was remanded because it appeared that the wrong standard was applied. ‘Cases under the Workmen's Compensation Act * * * are upon s different basis from actions between ordinary litigants. No case under this act should be finally determined when the trial court, or this court, is of the opinion that, through inadvertence, or otherwise, the facts have not been sufficiently found to render a just judgment. When this appears, the case must be returned to the commissioner for a finding in accordance with the suggestions made by the trial court or this court, and for an award to be made upon the corrected finding.’ Cormican v. McMahon, 102 Conn. 234, 238, 128 A. 709, 710.

In Larke v. John Hancock Mut. Life Ins. Co., 90 Conn. 303, at pages 308, 309, 97 A. 320, at page 321, L.R.A.1916E, 584, the rule was stated to be: ‘* * * an injury to an employee is said to arise in the course of his 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. ‘In the course of’ points to the place and circumstances under which the accident takes place and the time when it occurred. * * * The term ‘arising out of,’ in this act, points to the origin or cause of the injury. * * * It presupposes a causal connection between the employment and the injury.' See General Statutes, § 5223. This definition has been applied many times since but, as is usual in such cases, its formulation has been easier than its application.

The commissioner apparently decided that Herbst was not in the course of his employment because he was taking a forbidden route and was a trespasser on railroad property. This result does not necessarily follow. See Procaccino v. E. Horton & Sons, 95 Conn. 408,...