In re Harbroe

• Decision Date: 02 March 1916
• Citation: 223 Mass. 139,111 N.E. 709
• Parties: In re HARBROE. In re FIDELITY & DEPOSIT CO. OF MARYLAND.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

223 Mass. 139

111 N.E. 709

In re HARBROE. In re FIDELITY & DEPOSIT CO. OF MARYLAND.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1916.

Appeal from Superior Court, Suffolk County.

Proceedings under the Workmen's Compensation Act by the dependents of William A. Harbroe to recover for his death, opposed by the Fidelity and Deposit Company of Maryland, insurer. From an award to dependents, insurer appeals. Reversed.

Albin L. Richards, of Boston, for appellant.

Charles Sumner Morrill, of Boston, for appellees.

DE COURCY, J.

The employé Harbroe was night watchman for the Furst-Clark Construction Company, which was engaged in work on the Cape Cod Canal, at Buzzard's Bay in Barstable county. This company had buildings, machinery and other property on both the northerly and southerly side of the canal, and on the easterly and the westerly side of the tracks of the New York, New Haven & Hartford Railroad Company-which tracks extended in a northerly and southerly direction on a bridge over the canal. At about 3 a. m. on October 9, 1914, one Hart, a deputy sheriff at Buzzard's Bay, was notified that ‘yeggmen’ had robbed the safe at the Bourne post office. Later Albert L. Trench, the bridge operator employed by the Railroad Company, and whose station was near the buildings of the Construction Company, notified the deputy sheriff that the robbers had just crossed the bridge. Hart and his brother, fully armed, started in pursuit. In the vicinity of the company's office building, they saw, and were seen by, Trench and Harbroe. Each party, thinking that the others were acting in a suspicious manner, mistook them for the ‘yeggmen’ in the darkness and fog, shots were exchanged, and Harbroe was fatally injured.

1. The insurer contends that the employé was ‘injured by reason of his serious and willful misconduct.’ St. 1911, c. 751, pt. 2, § 2. According to the findings of the Industrial Accident Board he was defending himself from attack by men whom he thought to be desperate criminals. There was some evidence that he did not use his revolver until after they had given the command ‘hands up,’ and had fired upon him and his companion, Trench. We cannot say, as matter of law, that the facts show such misconduct as would deprive an employé of compensation under the statute. And assuming that section 2 is applicable where the employé is killed (see part 5, § 2, defining ‘employé’), the same is true as to his dependents. Nickerson's Case, 218 Mass. 158, 105 N. E. 604; Johnson v. Marshall, Sons & Co., Ltd. (1906) A. C. 409.

2. The finding of the board that Harbroe's injury arose in the course of his employment has some support in the evidence. It occurred during his working hours, and on the path between the office and the machine shop of his employer. The fact that he and Trench had left the office after seeing the supposed ‘yeggmen’ approaching is not conclusive that he had abandoned the care of his employer's property. He may have been on his way to some other part of the plant, where he would be in less apparent danger of bodily harm. At the time of the shooting he was in a place where he was accustomed to go in the performance of his duties. It is merely conjecture to say that he intended subsequently to leave the premises of his employer. Pigeon's Case, 216 Mass. 51, 102 N. E. 932, Ann. Cas. 1915A, 737. See Ross v. John Hancock Mut. Life Ins. Co., ante, 111 N. E. 390.

3. The doubtful question is whether the injury arose out of the employment. It cannot reasonably be said that the risk of being shot by trespassing law-breakers is incidental to or has its origin in, the nature of a night watchman's ordinary employment. Undoubtedly there are particular instances where the occupation of a night watchman exposes him to risks substantially beyond the ordinary normal ones, and where the employment involves and obliges the employé to face such perils. Where the employé's injury is the result of such special risk incident to the employment, where there is ‘a causal connection between the conditions under which the work is required to be performed and the resulting injury,’ the injury ‘arises out of’ the employment, within the meaning of the Workmen's Compensation Act. McNicol's Case, 215 Mass. 497, 102 N. E. 697.

In the application of this principle to cases of assault upon employés in the course of their employment the authorities are not in harmony. Some of these cases are referred to in McNicol's Case. In Challis v. London & Southwestern Ry. (1905) 2 K. B. 154, where an engine driver was struck by a stone thrown willfully by a boy from an overhead bridge; and in Nisbet v. Rayne & Burn (1910) 2 K. B. 689, where a cashier employed regularly to carry wages by train to a colliery, was robbed and murdered in the course of the journey, it was held that the injury arose out of the employment. On the other hand, in Blake v. Head, 106 L. T. 822, 5 B. W. C. C....