Maltais v. Equitable Life Assur. Soc. Of United States .

• Decision Date: 05 December 1944
• Docket Number: No. 3489.,3489.
• Citation: 40 A.2d 837
• Parties: MALTAIS v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES (two cases).
• Court: New Hampshire Supreme Court

40 A.2d 837

MALTAIS

v.EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES (two cases).

No. 3489.

Supreme Court of New Hampshire.

Dec. 5, 1944.

COPYRIGHT MATERIAL OMITTED.

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

Action of assumpsit by Albina Maltais against the Equitable Life Assurance Society of the United States to recover hospital expense on an accident policy. Action of assumpsit by Albina Maltais, administratrix, against same defendant to recover death benefits on a life policy for death of Victor H. Maltais, administratrix' intestate. Judgments for plaintiff in both cases, subject to defendant's exceptions, and cases transferred.

Judgments for defendant.

Two actions of assumpsit, on policies of group insurance issued by the defendant to the New England Briar Pipe Company, one for hospital expense, the other for accidental death and dismemberment. Each policy is labeled ‘non-occupational’ and each expressly provides that ‘no payment shall be made’ for any loss resulting from ‘bodily injuries arising out of and in the course of the employee's employment.’

Victor H. Maltais, the plaintiff's intestate, was an employee of the New England Briar Pipe Company and a participant in both of these policies at the time of his death. He died from injuries received on the premises of the pipe company, at Penacook, on January 22, 1942, when a fellow-employee, in sport, applied a compressed air hose to his rectum. This hose was used by the pipe company to clean sawdust from machines, motors, sand-blast pipes, etc. The workplace wad dusty, and some of the workmen were in the habit of using the hose for the purpose of blowing the sawdust from their clothes. There was no rule forbidding such use.

Fred Cutting, the workman who caused the decedent's fatal injuries, stated that he was sawing maple blocks in the sand blasting room at about quitting time when the decedent came into the room and, after watching him work for a while, went over to the air tank and started cleaning his clothes. Cutting testified: ‘He [the decedent] turned the valve on and held the hose on his clothes just to blow the dust off. * * * As soon as I got done sawing what I was doing, I went over and was waiting to use the hose myself * * * and Victor suggested he would clean my clothes off and I should clean his. It is a little easier that way, you can't clean in back of yourself alone and see what you are doing, so Victor took the hose and started dusting me off and fooling with it, like blowing your hair around and thrusting it at you. * * * So I took the hose and started the same way, playing, dusting him off, belowing his hair around and trying to put it in his pocket and then I trust the hose at him and when I did the hose touched him and he grabbed his stomach and started out of the sand blasting room.’

The witness further stated that the decedent ran into the next room and fell on the floor and that he was then taken to the hospital. He died on the following day. Cutting also testified that the hose was sometimes used in sport and that one of the workmen in particular ‘would stick the hose through the window’ and ‘blow somebody's hat off when they went by.’

There was a trial by jury. The defendant offered to prove, as alleged in its plea and brief statement of defense, that Albina Maltais, as administratrix of her husband's estate, had asserted a claim against the Liberty Mutual Insurance Company, which insured the New England Briar Pipe Company against liability to its employees and had effected a settlement with that insurance company for the approximate amount of the death benefits to which she was entitled under the provisions of the Employers' Liability and Workmen's Compensation Act. R.L. c. 216. In support of this offer, defendant's counsel contended that the settlement in question amounted to an election on the plaintiff's part to treat the accident as ‘arising out of and in the course of’ the decedent's employment (R.L. c. 216, § 4) and that such election constituted a bar to the present proceedings. To the exclusion of the proffered evidence the defendant duly excepted.

At the conclusion of the evidence each party moved for directed verdicts. Subject to the defendant's exception, the plaintiff's motion was granted in each case and the defendant's motions were denied. Further facts are stated in the opinion.

Transferred by Connor, J. Robert W. Upton and Laurence I. Duncan, both of Concord (Laurence I. Duncan, of Concord, orally), for plaintiff.

Wyman, Starr, Booth, Wadleigh & Langdell, of Manchester (Robert P. Booth, of Manchester, orally), for defendant.

MARBLE, Chief Justice.

The plaintiff assumed the burden of proving that the decedent's death was caused by a non-occupational accident or, in other words, by an accident which did not arise out of and in the course of his employment within the meaning of that phrase as used in the policies. Raymond v. Great Indemnity Company, 86 N.H. 93, 163 A. 713; Trepanier v. Mercantile Insurance Co., 88 N.H. 118, 121, 184 A. 866, 185 A. 656. The phrase is common to many workmen's compensation statutes including our own act (R.L. c. 216).

The policies were obviously designed to afford a workman protection (with certain exceptions not here material) in the event of an injury for which his employer was not liable either at common law or under the provisions of chapter 216. But in determining whether or not the plaintiff may recover it should be borne in mind that, although injuries which do not arise out of and in the course of a workman's employment are not compensable under the provisions of our statute, the phrase in question has usually received a very liberal interpretation in recognition of the remedial purpose of the act.

‘The injury arises out of the employment when it occurs in the course of the employment, and is the result of a risk incident to the conditions under which the employment is performed’ (Mascika v. Connecticut Tool & Engineering Company, 109 Conn. 473, 480, 147 A. 11, 13); and, to quote the language of Cardozo, J., in the case of Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 473, 128 N.E. 711, 712, 13 A.L.R. 522: ‘The risks of injury incurred in the crowded contacts of the factory through the acts of fellow workmen are not measured by the tendency of such acts to serve the master's business. Many things that have no such tendency are done by workmen every day.’

‘The phrase ‘in the course of employment’ presents two principal questions. The first concerns the period of employment. When does it begin and end, and, during this period, when is its continuity broken? The second raises the question as to how far the...