LaBonte v. National Gypsum Co.

• Decision Date: 30 June 1970
• Docket Number: No. 5952,5952
• Citation: 110 N.H. 314,269 A.2d 634
• Parties: Dorothy LaBONTE v. NATIONAL GYPSUM COMPANY. William A. LaBONTE v. NATIONAL GYPSUM COMPANY.
• Court: New Hampshire Supreme Court

Page 634

269 A.2d 634

110 N.H. 314

Dorothy LaBONTE v. NATIONAL GYPSUM COMPANY.

William A. LaBONTE v. NATIONAL GYPSUM COMPANY.

No. 5952.

Supreme Court of New Hampshire.

June 30, 1970.

As Modified for Denial of Rehearing Oct. 30, 1970.

Shaines, Madrigan & McEachern and Duncan A. McEachern, Portsmounth, for plaintiffs.

Calderwood, Silverman, & Ouellette and William B. Cullimore, Dover, for defendant.

LAMPRON, Justice.

Plaintiff William A. LaBonte, husband of plaintiff Dorethy LaBonte was injured on June 13, 1968, in the plant of defendant National Gypsum Company by whom he was employed. His injury allegedly resulted from a blow about the neck willfully and maliciously inflicted by a co-worker. On Jury 1, a memorandum of an agreement for compensation was filed with the labor commissioner under the provisions of RSA 281:36 (supp). On Jury 2 the agreement was approved by the deputy commissioner and William thereafter received compensation payments of $58 per week and medical benefits.

On August 27, 1968, William instituted a common law acion based on defendant's negligence in which he sought damages from the employer for the alleged assault and battery committed against him. His declaration alleges in part that the injury which the defendant negligently failed to prevent resulted from a cause unrelated to his employment and was the result of a purely personal matter. On the same day, Dorothy, his wife, began an action for loss of consortium resulting from the injury to her husband negligently caused by defendant. Defendant filed a motion to dismiss William's action on the ground, among others, that his exclusive remedy was under the Workmen's Compensation Law. RSA 281:12 (supp). Defendant argues that having accepted benefits thereunder he may not maintain a common law action. It moved to dismiss Dorethy's action because her 'cause of action is dependent upon her husband's cause of action and if that action is barred so is the plaintiff's.' Both of these motions were granted and plaintiff's exceptions thereto were reserved and transferred by Dunfey, J.

Under the provisions of RSA 281:12 (supp), if William's injury was an accidental injury arising out of and in the course of his employment he was conculsively presumed to have accepted the provisions of the law and 'to have waived his rights of action at common law to recover damages for personal injuries against his employer.' If, however, his injury did not arise out of his employment, but rather from a cause unrelated thereto, he could maintain an action at law because his injury would be noncompensable. Wilkinson v. Achber, 101 N.H. 7, 10, 131 A.2d 51.

Since William's injury occurred after July 15, 1959 when the employee's privilege to choose his form of relief for accidents arising in the course of his employment (Laws 1959, 187:4) was abolished, his receipt of compensation would not constitute a bar, under the doctrine of election of remedies, to his common law action as it did previously when a choice existed. Gordon v. Amoskeag Mfg. Company, 83 N.H. 221, 223, 140 A. 704; Churchill v. Exeter Mfg. Company, 86 N.H. 415, 170 A. 10; Davis v. W. T. Grant Company, 89 N.H. 520, 2 A.2d 448. Defendant takes the position, however, that the agreement for compensation filed and approved under RSA 281:36 is a bar on a theory of res adjudicata or preclusion of remedy. Prassas v. J. F. McElwain Company, 100 N.H. 209, 123 A.2d 157; Strong v. New Hampshire Box Company, 82 N.H. 221, 131 A. 688; Vestal, Res Judicata/Preclusion, 43 (1969).

If, after notice to the parties and a hearing at which 'full consideration shall be given to all evidence' (See REA 281:37) (supp), the labor commissioner had determined that William's injury was compensable, this determination, in the absence of an appeal, would constitute a bar to his common law action. Fidelity & Casualty Co. of New York v. Deshone, 17 Mich.App. 556, 170 N.W.2d 172; Russell v. Industrial Commission, 104 Ariz. 548, 553, 456 P.2d 918; 100 C.J.S. Workmen's Compensation § 657. However, where, as in this case, there has been no such determination of that issue in a proceeding apporximating the decisional process of courts, the plaintiff is not precluded from maintaining a common law action if his injury is in fact noncompensable. 2 Davis, Administrative Law Treatise, ss. 18.01-18.06; Vestal, Res Judicata/Preclusion, 224 (1969). See Newell v. Moreau, 94 N.H. 439, 441, 442, 55 A.2d 476.

On defendant's motion to dismiss William's action at law, the allegations in his pleadings must be taken to be true and construed most favorable to him. Aldrich v. Charles Beauregard & Sons, 105 N.H. 330, 339, 200 A.2d 14. The only count in his declaration alleges in part that his injury did not result from a risk to which his employment subjected him; that it resulted from a cause unrelated to any act by him in the course of his employment; and that it was the result of a purely personal matter unrelated to his employment.

The law is well established that 'if the assault arose from a personal quarrel unrelated to the employment or its environment, the resulting injury did not arise out of the employment.' Horovitz, Workmen's Compensation: Half Century of Judicial Developments, 41 Neb.L.Rev. 1, 22. 'If the friction and strain arises not because of the enforced contacts resulting from the duties of the employment, but rather because the two employees, who met each other on the job, choose to enter a purely private relationship just as they might if they had met elsewhere' and quarrels develop they do not arise out of the employment. 1 Larson's, Workmen's Compensation Law, s. 11.22. To be compensable the injury received in a quarrel must result from 'the conditions and obligations of the employment' and not merely from 'the bare existence of the employment.' Id., Wilkinson v. Achber, 101 N.H. 7, 9, 131 A.2d 51; Martin v. J. Lichtman & Sons, 42 N.J. 81, 199 A.2d 241; See Newell v. Moreau, 94 N.H. 439, 445, 55 A.2d 476; In re Tripp's Case,355 Mass. 515, 246 N.E.2d 449 (1969); 99 C.J.S. Workmen's Compensation § 226. Consequently the above allegations in plaintiff's action would tend to establish that his injuries resulted from the negligence of the defendant under circumstances which do not make them compensable under the Workmen's Compensation Law. Wilkinson v. Achber, supra.

However, plaintiff's declaration, like any other document, must be construed as an entirety. Steinberg v. Steinberg, 95 N.H. 461, 462, 65 A.2d 874; 71 C.J.S. Pleading § 53, p. 120. Despite his allegations that his injury was noncompensable and to establish his common law action, plaintiff makes the following additional allegations in his declaration: The defendant employer had known for about six months that the co-worker who assaulted plaintiff 'sought and intended to inflict' this injury on him; the employer owed plaintiff the duty to take all reasonable precautions to avoid that occurrence and failed to take affirmative action to insure the safety of the plaintifff and, on the contrary, with knowledge of this employee's evil and malicious intent required them to continue to work together in the same area of the plant which resulted 'in the wilful and malicious injury upon the plaintiff.'

We hold that construing plaintiff's declaration as a whole most favorably to him it 'admits of only one conclusion' (Wilkinson v. Achber,101 N.H. 7, 10, 131 A.2d 51), that is, that his injury resulted from 'the conditions and obligations of the employment.' 1 Larson's, Workmen's Compensation Law, s. 11.12. In other words, plaintiff's declaration established as a matter of law that his injury resulted from the employer's negligent supervision of his employees and was an accidental injury arising out of and in the course of his employment and compensable under RSA Ch. 281. Newell v. Moreau, 94 N.H. 439, 441, 55 A.2d 476. Plaintiff, being conclusively presumed to have accepted the provisions of the Workmen's Compensation Law (RSA 281:12 (supp)), cannot maintain an action at common law against his employer for his injury. Wilkinson v. Achber, supra. The Trial Court properly granted defendant's motion to dismiss plaintiff's action at law and his exception thereto is overruled.

We consider next the dismissal of the action of William's wife, Dorothy, for her loss of consortium. "Consortium,' as a general description, represents reciprocal rights inherent in the marital relationship of husband and wife, including such undefined elements as comfort, companionship, and commitment to the needs of each other.' Thill v. Modern Erecting Company, 284 Minn. 508, 170 N.W.2d 865, 867-868 (1969). It 'embraces love, companionship, affection, society, sexual relations, services, solace.' Moran v. Quality Aluminum Casting Co., 34 Wis.2d 542, 150 N.W.2d 137.

Prior to 1950, no court, except one, had held that the wife had a cause of action for loss of consortium due to negligent injury to her husband. Restatement, Second, Torts, s. 695, Note p. 18 (Tent. Draft No. 14, April 15, 1969). The reasons given for denying such an action are numerous and varied and can be found in Restatement, Second, Torts, supra, Arguments, pp. 14-16; 44 Notre Dame Law 264, 265-267 (1968): Annot. 23 A.L.R.2d 1378, 1380, 1391-1395. 'Since the decision of Hitaffer v....