Myott v. Vermont Plywood

• Decision Date: 01 November 1938
• Docket Number: 60
• Parties: LEON MYOTT v. VERMONT PLYWOOD, INC., ET AL
• Court: Vermont Supreme Court

2 A.2d 204

110 Vt. 131

LEON MYOTT v. VERMONT PLYWOOD, INC., ET AL

No. 60

Supreme Court of Vermont

November 1, 1938

October Term, 1938.

Workmen's Compensation Act---1. Inference from Facts Found Assumed by Supreme Court to Have Been Made by Commissioner of Industries---2. Injury Held to Have Arisen out of and in Course of Employment---3. Prior Horseplay by Claimant Held Immaterial---4. P. L. 6485, Subd. IV, Defining Compensable Injury Held Not to Preclude Recovery---5. Unreasonable Construction of Statute to Be Avoided.

1. On appeal from award made by commissioner of industries under Workmen's Compensation Act, where commissioner found that claimant was injured when a fellow employee on another shift who was trespasser in plant at time of accident, placed his hands on claimant while latter was at work and shouted at him, knowing him to be nervous, that such fellow employee and others quite often entered plant at night, from which commissioner inferred that such trespassing was known to night watchman and foreman, that such trespassing created added hazard incidental to claimant's employment and within reasonable contemplation of employer, and that claimant at time of accident was innocent victim of, or unwilling participant in, horseplay by trespasser and not fellow employee, Supreme Court would assume, if necessary to support award, that commissioner also inferred from findings that reasonable probability that such fellow employee would bother claimant was fact creating additional hazard referred to.

2. Where claimant in workmen's compensation proceedings was injured while at work as result of horseplay by fellow employee on another shift, who was trespasser in plant at time of accident, and where it was found by commissioner of industries that claimant met with accident as result of being exposed, by reason of such fellow employee's presence, to additional risk incident to his employment and within reasonable contemplation of employer held that claimant was injured by accident arising out of and in course of his employment.

3. Where claimant in workmen's compensation proceedings was injured while at work as result of being bothered by fellow employee on another shift, who was then trespasser in plant fact that claimant shortly before accident had been bothering fellow employee's companion in somewhat similar manner and fellow employee had seen this, was immaterial since claimant had returned to his work when fellow employee took hold of him.

4. Where claimant in workmen's compensation proceedings was injured while at work as result of horseplay by fellow employee on another shift, who was trespasser in plant at time of accident, and where it was found that commission of such act was within reasonable contemplation of employer and that probability of its commission created additional hazard incident to claimant's employment, claimant was not precluded from recovering by provisions of P. L. 6485, subd IV, that compensable injury includes injury caused by wilful act of third person directed against employee because of his employment, since such construction of the statute would be unreasonable.

5. Unreasonable construction of statute is to be avoided if possible.

APPEAL to Supreme Court, Addison County, from award of commissioner of industries, Howard E. Armstrong, Commissioner. The defendants, the employer and insurance carrier, appealed from an award in favor of the claimant in proceedings under the Workmen's Compensation Act claiming that upon the facts found the accident in which the claimant was injured did not arise out of his employment. The opinion states the case.

Judgment that the award is affirmed, with costs. Let the result be certified to the commissioner of industries.

Clarence R. White for the defendants.

Thomas F. Mangan (James E. Bigelow, of counsel) for the claimant.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

STURTEVANT

This is an appeal from an award of compensation made by the commissioner of industries to Leon Myott, hereinafter referred to as the claimant. The question certified to this Court for review is "Upon the facts found by the Commissioner, as a matter of law, was the claimant injured by an accident arising out of and in the course of his employment by the defendant, Vermont Plywood, Inc.?"

Defendant raises no question as to the alleged accident having occurred in the course of claimant's employment, but insists that the findings made by the commissioner do not sustain claimant's contention that said accident arose "out of" said employment. From the findings of the commissioner appear the following facts material to the determination of the question before us. Claimant was employed on the night shift at defendant employer's plant in Hancock, Vermont, on April 17, 1937. While claimant was doing his work in the usual manner a Mr. Dunn, who was employed on the day shift at said plant, sometime between one and two o'clock a.m. of said day, came into said plant accompanied by one Buttles. As Dunn and Buttles came near the place where claimant was working, claimant stepped up from behind Buttles and took hold of his hands and asked him who it was. Buttles replied "that little Frenchman" and the claimant let go of him. Dunn had stopped to talk with his brother-in-law but saw the claimant take hold of Buttles as above stated. It was right after this that the alleged accident took place. After claimant released the hands of Buttles as above stated, claimant returned to his machine and took up his regular duties, and while claimant was in the performance of these duties in the regular way Dunn came up to him unexpectedly from behind and placed his hands on the small of claimant's back at each side and shouted in his ear. At this time claimant was standing with both hands on a dolly handle of the machine which he was operating, with his left foot up on the right side of the dolly lever, which is released by the foot. His weight was on his right foot, which was placed in a worn depression in the floor about one and one-half inches deep and six inches across. When Dunn shouted at him claimant turned quickly to his right and as he whirled his right heel caught in the depression in the floor and a...