In re Caswell

• Decision Date: 27 March 1940
• Citation: 305 Mass. 500,26 N.E.2d 328
• Parties: CASWELL'S CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

305 Mass. 500

26 N.E.2d 328

CASWELL'S CASE.

Supreme Judicial Court of Massachusetts, Suffolk.

March 27, 1940.

Proceeding under the Workmen's Compensation Act by Morris Caswell, claimant, who was employed by the Adams Slipper Company. A single member and reviewing board awarded claimant compensation for total disability, but the superior court dismissed the claim for compensation, and the claimant appeals.

Decree dismissing claim reversed, and decree for employee.Appeal from Superior Court, Suffolk County; Hammond, Judge.

S. B. Horovitz, B. A. Petkun, and J. H. Klein, all of Boston, for employee.

W. W. Jump, of Boston, for insurer.

LUMMUS, Justice.

The single member and the reviewing board awarded compensation for total disability, but the Superior Court dismissed the claim for compensation on the ground that the personal injury received by the employee was not one ‘arising out of * * * his employment.’ G.L.(Ter.Ed.) c. 152, § 26, as amended by St. 1937, c. 370. Higgins' Case, 284 Mass. 345, 347, 348, 187 N.E. 592. The employee appealed.

The employee worked as a stitcher for the Adams Slipper Company, in its factory on the fourth and highest story of a brick building which faced southwest on Hammond Street in Worcester. The building was about sixty feet in width, and was built approximately in the form of a square, with sides nearly or quite three hundred feet long. In the center was a large open space used for parking and delivery. The machine at which the employee worked was near a window in the southeast wall of the building, which adjoined a piece of vacant land occupied only by railroad tracks. There was no finding and no evidence that the building was not well and stoutly built.

What happened was almost if not quite unprecedented in this Commonwealth. In the afternoon of September 21, 1938, a tropical storm described as a hurricane fell upon New England. Worcester was in the path of its greatest fury. The wind blew from the southeast, and attained a velocity of more than seventy-five miles an hour. Many church steeples, buildings and trees were blown down, and many buildings were unroofed. The streets were littered with uprooted trees, broken glass and other débris. In the building in question, at about five o'clock in the afternoon, windows were broken in the fourth story, either by the force of the wind or by flying débris, allowing the wind to enter and to lift the roof, loosening the bolts that anchored the roof to the brick wall on the southeast side, and causing the wall on that side to disintegrate and eventually to fall into the fourth story and upon the employee.

The employee contends that because his station was on the exposed side of the building, on the highest story, and close to the roof, the finding of the board was warranted that he was because of his employment exposed in an unusual degree to the danger of personal injury from the hurricane, and consequently that his injury arose out of his employment. It does not appear that the employee was required to remain at work during the hurricane. Many workmen had left the factory, and the remainder including the employee in question, were preparing to leave. Obviously there was no place of safety. A brick building might well be thought safer than the street.

Where an employee was injured by freezing or sunstroke, dangers more common in this Commonwealth, his right to compensation has been held to depend upon the question whether his employment required exposure, which, because of the nature of his work, the place of his employment, or his inability to stop work, was materially greater or more constant than the exposure to which the ordinary traveller or outdoor worker was subjected. Shute's Case, 290 Mass. 393, 195 N.E. 354, and cases cited; Robinson's Case, 292 Mass. 543, 198 N.E. 760. See now St. 1937, c. 370, § 1, amending G.L.(Ter.Ed.) c. 152, § 26. Compare Ahern v. Spier, 93 Conn. 151, 154, 105 A. 340. Similar considerations applied, prior to St. 1927, c. 309, § 3, to an employee whose work required the use of the streets and who was injured by a danger attendant upon travel in the streets. Cook's Case, 243 Mass. 572, 137 N.E. 733, 29 A.L.R. 114;Hornby's Case, 252 Mass. 209, 147 N.E. 577;Colarullo's Case, 258 Mass. 521, 155 N.E. 425, 51 A.L.R. 508;Higgins' Case, 284 Mass. 345, 187 N.E. 592;Milliman's Case, 295 Mass. 451, 4 N.E.2d 331. The right to compensation of an employee injured by lightning has been held in other jurisdictions to depend upon his ability to show that his employment required unusual exposure to that danger. Matter of Madura v. City of New York, 238 N.Y. 214, 144 N.E. 505;De Luca v. Board of Park Commissioners of Hartford, 94 Conn. 7, 107 A. 611;Newman v. Industrial Commission of Wisconsin, 203 Wis. 358, 234 N.W. 495;State v. District Court of Ramsey County, 129 Minn. 502, 153 N.W. 119, L.R.A.1916A, 344;American Fuel & Clay Products Co. v. Gilbert, 221 Ala. 44, 127 So. 540;Sullivan v. Roman Catholic Bishop of Helena, 103 Mont. 117, 61 P.2d 838;Atlanta v. Parks, 60 Ga.App. 16, 2 S.E.2d 718. But we need not consider whether the finding in the case at bar of unusual exposure to danger from the hurricane was warranted or not.

There is another principle upon which the employee, in our opinion, is entitled to compensation. Unquestionably, the injury was received in the course of his employment. The only other requirement is that the injury be one ‘arising out of’ his employment. It need not arise out of the nature of the employment. An injury arises out of the employment if it arises out of the nature, conditions, obligations or incidents of the employment; in other words, out of the employment looked at in any of its aspects. Thom or Simpson v. Sinclair, [1907] A.C. 127, 142, 143. An employee who, in the course of his employment, is hurt by contact with something directly connected with his employment, receives a personal injury arising out of his employment, even though the force that caused the contact was not related to his employment. Thom or Simpson v. Sinclair, [1917] A.C. 127, 134-136. Lord Atkin, in Brooker v. Thomas Borthwick & Sons (Australasia), Ltd. [1933] A.C. 669, 677, stated the principle thus: ‘If a workman is injured by some natural force such as lightning, the heat of the sun, or extreme cold, which in itself has no kind of connection with employment, he cannot recover unless he can sufficiently associate such injury with his employment. This he can do if he can show that the employment exposed him in a special degree to suffering such an injury. But if he is injured by contact physically with some part of the place where he works, then, apart from questions of his own misconduct, he at once...