Lybolt v. W. H. Hinman, Inc.

• Decision Date: 01 December 1931
• Citation: 157 A. 579
• Parties: LYBOLT v. W. H. HINMAN, Inc.
• Court: New Hampshire Supreme Court

157 A. 579

LYBOLT

v. W. H. HINMAN, Inc.

Supreme Court of New Hampshire. Merrimack.

Dec. 1, 1931.

Transferred from Superior Court, Merrimack County; Sawyer, Judge.

Petition under the Workmen's Compensation Act by Raymond V. Lybolt against W. H. Hinman, Incorporated. Case transferred without ruling.

Petition dismissed.

Petition for compensation under the Workmen's Compensation Act (P. L. c. 178).

The plaintiff was employed by the defendant as the operator of a steam shovel, and by reason of the vibration of the machine suffered a gradual breaking down of blood vessels, which resulted in a cerebral hemorrhage. This occurred at about nine o'clock in the evening, several hours after he had completed his day's work, and while he was about his own affairs.

The question, whether he was entitled to compensation, was transferred without ruling by SAWYER, C. J.

David F. Dudley, of Concord, for plaintiff.

Warren, Howe & Wilson and Robert P. Bingham, all of Manchester (Mr. Bingham, orally), for defendant.

PEASLEE, C. J.

In order to establish a claim under the Workmen's Compensation Act it is necessary that three elements be proved. The injury must be accidental (Guay v. Brown Co., 83 N. H. 392, 142 A. 697, 60 A. L. R. 1284), it must arise out of the employment, and it must occur in the course of that employment. P. L. c. 178, § 4. Assuming that the first two elements were shown in this case, the plaintiff fails as to the third. The incident relied upon as an accident was a cerebral hemorrhage, and it occurred several hours after the plaintiff had completed his day's work, and while he was about his personal business.

The provisions that the disability complained of must have arisen through accident and in the course of the employment are common to many statutes of this class; and the decisions thereunder are unanimous to the effect that the accident must have occurred in the course of the employment. If it happens at another time and place, it is not compensable under such an act, even though it be shown that the employment was the cause of the misfortune. Out of the employment is not an equivalent for in the course of the employment.

"There must be a conjunction of the two requirements, 'in the course of the employment' and 'out of the employment,' to permit compensation. The former relates to the time, place, and circumstance of the accident, while the latter refers to the origin and cause of the accident." Stakonis v. United Advertising Corp., 110 Conn. 384, 389, 148 A. 334, 336.

Local cases are in harmony with the foregoing. In Boody v. K. & C. Mfg. Co., 77 N. H. 208, 90 A. 859, L. R. A. 1916A, 10, Ann. Cas. 1914D, 1280, the issue, whether the decedent was in the course of his employment when accidentally drowned, was treated as vital in a proceeding under section two of the original act. (Laws 1911, c. 163, § 2.) It was held that there might be a recovery, since "it can be found that he was killed 'by accident arising * * * in the course of the employment.'" Id., 214 of 77 N. H., 90 A. 859, 862. It was also said that the test "to determine whether the employee was injured by accident arising in the course of the employment" is to inquire whether he "was acting within the scope of his employment when he was injured." Id., 213 of 77 N. H., 90 A. 859, 862.

The subject received consideration in another case involving liability under the same section, and it was there said: "The succeeding section (section 3) [now sec. 4] provides for compensation by an employer who has accepted the act to employees who also accept it for 'any injury arising out of and in the course of their employment.' This expression appears to be taken from the English act, and has been the subject of numerous decisions, determining whether the servant is entitled to the compensation provided in the act. No such question has arisen here as yet, but elsewhere no construction has been given to the language which would extend the master's liability from what it would be at common law if negligence were shown. 'An injury is received "in the course of" the employment, when it comes while the workman is doing the duty which he is employed to perform.' * * * McNicol's Case, 215 Mass. 497, 498, 102 N. E. 697, L. R. A. 1916A, 306. See L. R. A. 1916A, pp. 40, 232. Although these decisions strictly relate to the use of the language in granting compensation under section 3, their principle has been adopted here in the construction of section 2,...