Newell v. Moreau.

• Decision Date: 04 November 1947
• Citation: 55 A.2d 476
• Parties: NEWELL v. MOREAU.
• Court: New Hampshire Supreme Court

55 A.2d 476

NEWELL

v.MOREAU.

Supreme Court of New Hampshire.

July 2, 1947.

On Rehearing Nov. 4, 1947.

COPYRIGHT MATERIAL OMITTED.

Exceptions from Superior Court, Hillsborough County; Tobin, Judge.

Workmen's Compensation proceeding by Mabel M. Newell, administratrix, opposed by Arthur E. Moreau. On plaintiff's exceptions to findings and rulings of court.

Exception sustained.

Petition, for workmen's compensation under R.L. c. 216. The decedent Newell was employed by the defendant as a boss shipper and it was his duty to supervise truck drivers, one of whom was Oscar Palmer, who had been at odds with his superior over the dilatory manner in which the latter claimed Palmer did his work. ‘About two weeks before the trouble which resulted in Newell's death, an altercation between the two took place in which Palmer backed Newell up against a pile of lumber and threatened to ‘knock his ________ block off.”

Although Newell was shorter, smaller and older, this did not deter him from constantly criticizing the manner in which Palmer performed his work. ‘Palmer resented this criticism and Newell's efforts to expedite the work assigned to Palmer by Newell, [and] the sole reason for Palmer's resentment was Newell's criticism of the manner in which Palmer performed his work.’

On the day of the fatal altercation, the boss shipper criticized Palmer for delay in delivering and locating material. A verbal argument ensued as a result of which Newell physically prodded Palmer down the stairs to hurry him along. Newell told Palmer ‘you are all done.’ Palmer suggested that they ‘come outside and settle it.’ Newell took off his coat, assumed a fighting pose, but did not strike a blow as Palmer first struck him either with his fist or with the heel of his hand. This caused Newell to fall and strike his head on a hard surface, resulting in a fractured skull from which he subsequently died before his version of the altercation could be taken.

The Court ‘found as a fact that Newell was the aggressor and that his conduct was of such a threatening nature as to create a reasonable apprehension of an intent to inflict physical harm to Palmer. While it is true that Palmer did not actually fear Newell, yet the latter's method of approach was such to warrant action on Palmer's part to ward off intended assault.’ The Court in dismissing the petition made the following rulings of law: ‘The Court rules that Newell's injury and subsequent death was caused in whole or in part by his violation of law and/or his own serious or wilful misconduct. It is further ruled that Newell's injury and subsequent death did not arise out of and in the course of his employment.’

Other facts appear in the opinion and see Newell v. John Hancock Life Ins. Co., 94 N.H. 26, 45 A.2d 579, 166 A.L.R. 1111.

The plaintiff's bill of exceptions to the Court's findings and rulings was transferred by Tobin, J.

BLANDIN, J., dissenting on rehearing.

McLane, Davis & Carleton and Stanley N. Brown, all of Manchester, for plaintiff.

Sheehan, Phinney & Bass and W. L. Phinney, all of Manchester, for defendant.

KENISON, Justice.

As a preliminary matter, the findings of fact made by the Trial Court being supported by the evidence are accepted as true. We will consider the legal questions involved in the order in which they have been discussed in the defendant's brief.

It is argued that Newell's death was not ‘by accident’ within the meaning of R.L. c. 216, § 2. The trend of the recent cases regard assaults by design as accidental. From the point of view of the victim and in a popular sense (Moore v. Rumford Printing Company, 88 N.H. 134, 138, 185 A. 165), Newell's death was sudden, unexpected and truly accidental. The majority of the cases, particularly those decided in the last three years, support this view. Horovitz, ‘Modern Trends in Workmen's Compensation,’ 21 Ind.L.J. 473, 491-493 (1946); Duncan v. Perry, Packing Co., 1946, 162 Kan. 79, 174 P.2d 78; Hagger v. Wortz Biscuit Co., Ark., 1946, 196 S.W.2d 1; Kaiser v. Reardon Co., Mo.Sup., 1946, 195 S.W.2d 477; Echols v. Chattooga Mercantile Company, Ga.App., 1946, 38 S.E.2d 675, 678.

The next question is whether Newell's injury did not ‘arise out of’ his employment as ruled by the Trial Court. ‘The statutory phrase ‘arising out of and in the course of employment,’ which appears in most workmen's compensation laws, is deceptively simple and litigiously prolific.' Cardillo v. Liberty Mut. Ins. Co., 1947, 330 U.S. 469, 67 S.Ct. 801, 806. However, according to the great weight of modern authority, assaults are compensable if the assault arises out of a work matter and not out of a purely personal quarrel unrelated to the employment. ‘Current Trends in Basic Principles of Workmen's Compensation’ 12 Mass.L.Soc'y.J. (May-Aug. 1947). Note, 386. In this case it is clear that the ill feeling between Newell and Palmer occurred because of the work relations, while at work and as a result of the work done. Hegler v. Cannon Mills Co., 224 N.C. 669, 671, 31 S.E.2d 918, 919;

‘While the assault may have resulted from anger or revenge, still it was rooted in and grew out of the employment.’ For an adequate collection of cases and able discussion sustaining this proposition, see Horovitz ‘Assaults and Horseplay under Workmen's Compensation Laws, 41 Ill.L.R. 311 (1946).

The contention that the claimant's death did not occur ‘in the course of [his] employment’ cannot be sustained in view of the liberal interpretation given to this phrase in our law. Whitham v. Gellis, 91 N.H. 226, 16 A.2d 703; Bernier v. Greenville Mills, 93 N.H. 165, 37 A.2d 5; Maltais v. Equitable Life Assurance Society, 93 N.H. 237, 240, 40 A.2d 837, 839. While it is true that the assault in the Maltais case, supra, was sportive in nature, the reasoning of that decision is not so limited. An assault whether by design or in sport is in the course of employment where, as here, it was caused by or resulting from working conditions.

It is contended that Newell's death was caused in whole or part by violation of law or by serious and wilful misconduct. R.L. c. 216, § 10, reads as follows: ‘Employee's Fault. The employer shall not be liable for any injury to the workman which is caused in whole or in part by the intoxication, violation of law, or serious or wilful misconduct of the workman.’ Although Newell committed no battery, the court has found that he committed an assault. At most it was the misdemeanor of simple assault, R.L. c. 455, § 22, and not the felony of aggravated assault. R.L. c. 455 § 23. In determining whether the assault is serious or wilful within the meaning of the statute, we consider the misconduct and not the result. The misconduct must be grave and not trivial. Here, as in Maltais v. Equitable Life Assurance Society, supra, we hold that a simple assault or a battery is not serious or wilful misconduct within the meaning of the Workmen's Compensation Law.

In Newell v. John Hancock Life Ins. Co., 94 N.H. ante 26, 45 A.2d 579, 166 A.L.R. 1111, it was decided that Newell's assault was a violation of law within the meaning of an exclusionary clause in the policy. Of course that contract decision is not res adjudicata of this compensation case. There we were dealing with a private agreement between two parties; here we have a public statute embodying remedial legislation which has and will continue to receive a liberal interpretation to effectuate its purpose. No public policy was involved in the former case of contract but it is involved in the instant case of master and servant relationship. This was so even at common law, see Richard v. Amoskeag Mfg. Company, 79 N.H. 380, 109 A. 88, 8 A.L.R. 1426. ‘For it is not out of line with the common law to deal with causes where the relation of master and servant exists differently from causes where there is no such relation.’ Pound, ‘The Spirit of the Common Law’ (1921) 30.

We need not now decide how serious a crime must be committed by the employee to preclude his widow and children receiving benefits under the Workmen's Compensation Law. We do decide that the Legislature did not intend that any and every violation of the Law was meant. It would come as a surprise to labor, industry and the Legislature to rule that every violation of law, including the technical and trivial, barred recovery.

Any such construction would bar an employee, on an authorized errand for his employer, from compensation if he were injured as a result of committing the statutory crime of expectoration. R.L. c. 165, § 17. If a workman should receive the maximum fine of $1 for the first offense of cursing, R.L. c. 448, § 2, and should receive injuries in the course of his employment while causally violating this statute, his injury would not be compensable under such a construction. If these examples may be extreme, they serve to indicate that the Legislature did not intend to include all misdemeanors. We conclude under the circumstances of this case that Newell's technical and simple assault was not a violation of law under R.L. c. 216, § 10.

Compensation was also denied because Newell was an ‘agressor.’ There is much conflict in the decisions on this point (School v. Industrial Commission, 366 Ill. 588, 10 N.E.2d 360, 112 A.L.R. 1254, 1258, 1270), but the trend of the modern authority is to allow recovery. In order not to bludgeon the bar into insensibility by copious citations and prolix footnotes we refer to the discussion and collection of cases in the articles cited in the first part of the opinion. The defense of ‘aggression’ is not to be found in our statute or in other compensation laws. By the application of tort reasoning the defense has been judicially inserted in some compensation cases. We have already refused to read in a similar defense in sportive assaults (Maltais v. Equitable Life Assurance Society, supra) and we see no reason for its judicial insertion in this assault. It reaching this result we have endeavored...