Marsigli's Estate v. Granite City Auto Sales, Inc., No. 1932

• Docket Nº: No. 1932
• Citation: 197 A.2d 799, 124 Vt. 95
• Case Date: February 04, 1964
• Court: United States State Supreme Court of Vermont

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197 A.2d 799 124 Vt. 95 In re ESTATE of Paul MARSIGLI and Olga Marsigli
v.
GRANITE CITY AUTO SALES, INC., Travelers Insurance Company. No. 1932. Supreme Court of Vermont. Feb. 4, 1964.
Reargument Denied Feb. 27, 1964.

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[124 Vt. 96] Monti & Free, Barre, for plaintiffs.

Richard E. Davis, Barre, for defendant.

Before [124 Vt. 95] HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and SYLVESTER, JJ.

[124 Vt. 96] HOLDEN, Chief Justice.

This is a workman's compensation proceeding. The initial award by the commissioner of industrial relations was appealed to the Washington County Court under 21 V.S.A. § 670. After an extended trial by jury, four special verdicts were returned favorable to the plaintiffs, the workman's widow and his estate. From the judgment that was entered on these verdicts, the defendants bring the cause to this Court for review of several assignments of error.

Paul Marsigli was the president and general manager of the defendant Granite City Auto Sales, Inc. of Barre, Vermont. This enterprise was an automobile agency and maintained showrooms on North Main Street in that city. On December 12, 1959, about 10 o'clock in the forenoon, the decedent slipped on some ice. His feet went out from under him in a forward direction and he fell backwards on his side and back. At the time of the fall he was crossing the yard of his employer's premises. He got up after his fall [124 Vt. 97] and continued across the yard on to North Main Street and departed from the premises.

Marsigli's destination at the time was not known. There was evidence that it had been his custom to leave the premises about this time of day to obtain a cup of coffee in a nearby dairy bar. There were several other places in and about the immediate neighborhood that Mr. Marsigli visted frequently in connection with his employer's business.

After leaving the premises, Mr. Marsigli shortly returned and continued to work for the remainder of the day. Following his fall, he developed a pain in his right hip. The pain persisted. Medical attention was sought on the day of the fall but the family doctor was not reached until December 14th. After consultation with a urologist, the

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patient was admitted to the Barre City Hospital on December 16, 1959 for further examination. After a temporary release from the hospital over the holiday period, Mr. Marsigli underwent extensive surgery and deep x-ray therapy. He never returned to active service of his employer. His death from cancer occurred April 10, 1960.

At the trial the defendants moved for a directed verdict in their favor on the ground that the plaintiffs had failed to establish that the employee's fall on December 12, 1959, was an accident arising out of or in the course of his employment. The defendants contend there was no evidence in the case to establish that, at the time of the fall, Mr. Marsigli was leaving the premises in order to carry out any duty connected with his employment.

It is of substantial significance that the accident which befell the decedent occurred on the premises of his employer. Kenney v. Rockingham School District (1963) 123 Vt. 344, 347, 190 A.2d 702. See Larson, The Law of Workmen's Compensation, § 15.10. It is also of importance that Mr. Marsigli's duties as president and general manager of the defendant corporation required his attention to both automobile service and sales. These duties took him from building to building and in and about the neighborhood of the defendant's principal location in Barre. It is obvious that his duties did not confine him to any particular station in performing his employment. To the contrary, the marketing and purchase of new and used cars might well have carried the president and general manager [124 Vt. 98] of the business many miles from his base of operation which could be traveled in the 'course of his employment.'

It is enough to say that an injury arises in the course of the employment when it occurs within the period of time when the employee was on duty at a place where the employee may reasonably be expected to be while fulfilling the duties of his employment contract. Brown v. Bristol Last Block Co., 94 Vt. 123, 125, 108 A. 922. As to this issue there was no conflict in the evidence. It is undisputed that the accident occurred during working hours and on the garage property, where the employer could reasonably expect Marsigli to be in carrying out the duties assigned.

The fact that it had been the employee's custom to depart from the property to obtain coffee at about this time is insufficient to make a jury question of whether or not the decedent was fulfilling the duties of his employment. Even before the present statute, under principles of common law, the law afforded the worker some latitude in releasing the servant from the confines of his work bench. Thus, it was held that an employee did not forfeit his right of recovery against his master because he had departed from his station to obtain a glass of milk. Our Court went on to point out that the master's duty will attend the servant for incidental trips across the premises to and from his working place for purpose not strictly connected with the master's business. Ingram's Adm'x v. Rutland Railroad Co., 89 Vt. 278, 281, 95 A. 544, Ann.Cas.1918A, 1191. This concept has persisted in recent authorities, particularly where injury occurs during a rest period on the employer's premises. Nagle's Case, 310 Mass. 193, 37 N.E.2d 474, 477; 1 Larson, supra, § 15.50.

There is a notable distinction in the present case, where the accident occurred on the premises and the situation which prevailed in Greenfield v. Central Vt. Rwy. Co., 114 Vt. 440, 48 A.2d 854, where the injury was inflicted off the employer's property on a public highway. See Larson, Workmen's Compensation, supra, § 15.12 and § 15.51.

Since the evidence on this point was not disputed, nor subject to opposing inferences, there was no error in the trial court's taking this question from the jury by way of a binding instruction. We affirm the trial court's ruling, as a matter of law on the facts presented, that the fall sustained by Paul Marsigli was an accident arising out of [124 Vt. 99] and in the course of his employment by the Granite City Auto Sales, Inc. This

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engages the principal question raised by the defendants' appeal.

By special verdict, the jury found that Paul Marsigli suffered a fall on December 12, 1959, which materially aggravated or accelerated the development of a cancerous condition existing in his body on that date so as to cause his death earlier that it would otherwise have occurred. The medical testimony presented a sharp conflict on this question. Despite the divergence in highly competent medical authority on the issue, the jury's verdict must stand if supported by substantial evidence. And we are required to test the sufficiency of the facts from a point of view favorable to the award, if this can reasonably be done. Gillespie v. Vermont Hosiery & Machinery Co., 109 Vt. 409, 415, 199 A. 564.

The presence of cancer at the time of the fall is undisputed. It is equally undisputed that the pain which ensued directly after the fall on the ice was the compelling reason for Mr. Marsigli to seek medical attention from his family doctor.

Up to that time, Mr. Marsigli had pursued a strenuous life in the service of the Granite City Garage. He supervised the work in the repair and paint shops, directed sales operations, demonstrated cars and his usual workday was from eight or nine o'clock in the morning to nine at night. He appeared physically healthy and rugged to his fellow employees and made no complaints about physical ailments or discomfort. His work pace had not slackened before the accident in question.

Following the fall on the ice, pain developed in his back and hips. This condition persisted and caused him to seek medical attention on the day of the accident. The pain persisted to the time he reached medical care and afterward.

Physical examination at that time disclosed the presence of an abnormal growth in the prostate gland, involving a questionable hardness in the region of the right groin. In reporting medical history to the urologist to whom he was referred by the family doctor, the employee stated he had experienced frequent nocturnal urination accompanied by burning sensation, rectal pressure during the previous two or three weeks and had noticed some lameness in the inner aspect of the right thigh. Hospitalization for further clinical study [124 Vt. 100] was prescribed. This examination disclosed extensive evidence of cancer, involving both prostate and the bladder with some destructive change indicated in the pelvic bone structure. After further consultation between Dr. Charles Goyette, the family physician, and Dr. John A. Zagroba, specialist in diseases of the kidney, bladder and male reproductive organs, the patient's life expectancy was estimated at from three to five years.

On January 17, 1960, Mr. Marsigli was re-admitted to the Barre City Hospital and radical surgery was performed. He was discharged from the Barre Hospital on January 28, 1960. He remained at home until February 8th when he entered a hospital in Burlington where he received radiation...