Herman Rothfarb v. Camp Awanee, Inc.,

• Decision Date: 07 February 1950
• Docket Number: 1098.
• Parties: HERMAN ROTHFARB v. CAMP AWANEE, INC., ET AL
• Court: Vermont Supreme Court

71 A.2d 569

116 Vt. 172

HERMAN ROTHFARB v. CAMP AWANEE, INC., ET AL

No. 1098

Supreme Court of Vermont

February 7, 1950

Special Term at Rutland, November, 1949.

APPEAL FROM AWARD by the Commissioner of Industrial Relations, John T. Conley, Commissioner, to the Supreme Court, Rutland County. Reversed.

Judgment that the order of the Commissioner of Industrial Relations awarding compensation to the claimant should be and the same hereby is, annulled, set aside and held for naught. Let the defendants recover their costs in this Court. Let the result be certified to the Commissioner of Industrial Relations.

Ryan Smith & Carbine for the defendants.

Bove, Billado & Dick for the plaintiff.

Present: SHERBURNE, C. J., JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.

OPINION

JEFFORDS

This is an appeal from an award by the Commissioner of Industrial Relations under the Workmen's Compensation Act. The commissioner found the following facts: The claimant was employed by the defendant employer on July 23, 1948, the date of the accident, as a pot washer and general kitchen helper at Camp Awanee, a summer camp in Hubbardton, Vermont, and one Anton Boose was employed there as second chef. They slept in separate beds in the same room in a bunk house on the premises provided by the employer and were assigned there by the housekeeper at the camp. The claimant and Boose had known each other for some time, and they worked together in the kitchen at Camp Awanee. Some weeks before the accident the claimant had obtained a flit gun and insecticide from the housekeeper and brought it to the bunk house.

Their hours of work were from 6 A. M. to 7 P. M. with some time off in the afternoon. On the evening in question they left work about 7 P. M., went to the bunk house and had a drink of whiskey, walked about a mile to a place off the camp premises where each had three or four bottles of beer, returned to the bunk house about 11 P. M., had another drink of whiskey and Boose proceeded to undress. The claimant took the spray gun and started spraying insecticide about the room to kill the bugs. Boose requested claimant to stop as it irritated him and told claimant "if you don't stop I'll take it away from you." Claimant continued to spray and Boose knocked the sprayer out of claimant's hand. They both started wrestling, standing first and then falling to the floor between the beds. Another employee came into the room from his adjoining room and asked claimant and Boose to stop, which they did, but afterwards harsh words passed between them and claimant told Boose that he, Boose, got the first grip on him. Then claimant took hold of Boose and they began to wrestle again, falling on the floor between the beds. They rolled and threshed about the floor for a few minutes and during that time claimant's leg struck against the steel leg on the bed and he sustained a compound fracture of the left tibia and a fractured left fibula. There was no willful intention on the part of either claimant or Boose to injure each other. The claimant and Boose were not required to sleep in the bunk house but the contract of employment contemplated that the claimant should sleep there.

The last paragraph in the findings is as follows: "I hold that the claimant received a personal injury by accident arising out of and in the course of his said employment on July 23, 1948". In support of this holding the commissioner set forth certain "Conclusions of Law".

An order was entered in which the insurer and the employer were directed to pay compensation and expenses.

The case is here on the defendants' exceptions which as set forth in their bill of exceptions are to the above quoted ultimate finding on the grounds that it is contrary to law and is not supported by the findings of facts nor by the evidence, and to the order on the same grounds and on the additional ground that it is not supported by the conclusions of law.

The claimant moved to dismiss the defendants' exceptions to the ultimate finding and to the order on the ground that the exceptions fail to point out the particular defects relied upon and therefore present nothing for consideration in this Court.

As no evidentiary exceptions are briefed they are waived. Thus we only need consider whether the exceptions on the other stated grounds are adequate.

The validity of the order depended on the sufficiency of the findings to support it. A. judgment in an action at law must be so supported. The test of the sufficiency of the exceptions is the same in each case. We have repeatedly held that a general exception to a judgment raises the question of the sufficiency of the findings to support the particular judgment rendered. Duchaine v. Zaetz, 114 Vt. 274, 276, 44 A.2d 165, and the numerous cases there cited. Such an exception reaches every question involved in the rendition of the judgment and necessary to its validity, but it does not reach back of the findings. Duchaine v. Zaetz, supra. To the extent, if any, that the holdings in Kennedy v. Robinson, 104 Vt. 374, 379, 160 A. 170, relied on by the claimant, conflicts with the above it is to be disregarded.

The exception here to the order is more than a general exception. It points out reasons why it is claimed that the order is not valid, i.e., that it is not supported by the findings nor by the conclusions of law. Nothing more, nor indeed as much, needed to be stated.

The question whether an injury by accident has arisen out of and in the course of the employment is one of law when there is no dispute as to the facts. Giguere v. Whiting, 107 Vt. 151, 156, 177 A. 313, 98 A.L.R. 196; Workmen's Compensation, 58 Am Jur § 461. Here there is no such dispute. Consequently the above quoted ultimate finding, being a conclusion of law, is reviewable under the exception to the order. Schwarz v. Avery, 113 Vt. 175, 180, 31 A.2d 916; Greenwood v. Lamson, 106 Vt. 37, 42, 168 A. 915. Moreover, the exception did point out the claimed defects in the ultimate finding; that it was contrary to law and not supported by the findings of facts. The motion to dismiss the defendants' exceptions is denied.

The claimant's right to compensation, if any, is a right given him by statute. To be compensable an injury must be the result of an accident to a workman, arising out of and in the course of his employment; neither alone is enough. V. S. 47, § 8072.

In dealing with cases coming under this statute we have said that, speaking generally, an injury arises in the course of an employment when it arises within the period of employment, at a place where the employee may reasonably be, and when he is reasonably fulfilling the duties of his employment; and an injury arises out of an employment when it occurs in the course of it and as the proximate result of it. Brown v. Bristol Last Block Co., 94 Vt. 123, 125, 108 A. 922; Kneeland v. Parker, 100 Vt. 92, 96, 135 A. 8, 48 A.L.R. 1396; Bundy v. State Highway Dept., 102 Vt. 84, 86, 146 A. 68. When an injury is a natural and necessary incident or consequence of the employment, though not foreseen or expected, it arises out of it. A. risk is incidental to the employment when it belongs to it, or is connected with what a workman has to do in fulfilling his contract of service. The Brown and Kneeland cases, supra.

The defendants do not seriously question that the injury arose in the course of the claimant's employment and we will assume, without so deciding, that it did. The question then is whether it arose out of his employment. To obtain an affirmative answer to this question the claimant has the burden of showing a causal connection between the accident which caused his injury and his employment. Bundy v. State Highway Dept., supra; Greenfield v. C. V. Ry., 114 Vt. 440, 442, 48 A.2d 854.

We have no cases with facts similar to the one here. Many cases are cited by both parties from other jurisdictions which each claims to be in point in his or their favor. None of these cases nor many others which we have read are particularly helpful from a factual standpoint.

The claimant cites and quotes from many cases which have applied the so called "Bunk House Rule" in allowing compensation. There is no need to cite and distinguish all of these cases from the one here. It is sufficient to say that nearly all have to do with risks which are ordinarily and reasonably incurred in carrying out the ordinary pursuits and necessities of life provided such are being performed at the time of the accident in the service of the employer. Of these cases the one nearest in point on its facts with the present case is Kaiser Lumber Co. v. Ind. Comm. 181 Wis. 513, 195 N.W. 329. There the claimant was one among sixty employees who were required to sleep in a bunk house. While asleep he was attacked by another employee who had become insane. It was held that the accident arose out of the employment as danger in such sleeping quarters was greater than to the public at large whether by an accident from fire or running amuck, or other cause. In the present case there is no overcrowding in sleeping quarters to provide the additional risk found to exist in the Kaiser case, as from findings it appears that the claimant and Boose occupied one room while the adjoining room was occupied by two other employees. The basis for the holding in the Kaiser case seems to be akin to that in Myott v. Vt. Plywood, 110 Vt. 131, 2 A.2d 204. The case of Miller v. Reisch Co., 132 Neb. 338, 271 N.W. 853 is the only other case cited in support of the Bunk House Rule which involves an assault. In that case the claimant, a ranch hand, had complained about the food. He was assaulted during a meal by the ranch foreman. The opinion in the case is short. Recovery was allowed on the...