Novack v. Montgomery Ward & Co.
| Citation | 198 N.W. 290,158 Minn. 495 |
| Decision Date | 28 March 1924 |
| Docket Number | 23,904 |
| Parties | HOLGER NOVACK v. MONTGOMERY WARD & COMPANY |
| Court | Supreme Court of Minnesota (US) |
Action in the district court for Ramsey county by the father and natural guardian of Gudrund Novack, a minor, to recover $35,000 for injuries received by the minor while in the employ of defendant. From an order, Hanft, J., sustaining defendant's demurrer to the amended complaint, plaintiff appealed. Affirmed.
"Injury arising out of" "employment."
1. Decline to make a comprehensive definition of the language in Workmen's Compensation Act, "injury arising out of the course of the employment."
General characteristics indicated.
2. Some general characteristics indicated: (1) Employe is "in course of employment" when he does those reasonable things which his contact with his employment expressly or impliedly permits him to do. (2) It "arises out of" the employment when it reasonably appears from all the facts and circumstances that there is a causal connection between the conditions which the employer puts about the employe and the resulting injury. (3) It excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the employe would have been equally exposed apart from the employment. (4) It need not have been foreseen or expected but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.
Employe protected by act while upon premises of employer.
3. Where the employe enters the premises of the employer on her way to her work and pursues the proper course to the place of her labor, while there in the performance of her duties, and until she leaves the premises by the ordinary means of exit, she is engaged in the ordinary pursuit of her employment, and is entitled to the protection and is subject to the limitations of the compensation act.
Necessary use of elevator an incident of the employment.
4. An employe necessarily using an elevator on premises of employer is at common law an employe and not a passenger, and under the compensation act the use of the elevator is an incident to the employment, and an injury occurring to her while using such elevator arises out of and in the course of employment. Where an employe is in, on and about the premises where her services are performed, and is also at a place where she is required to be by her employment, she is included in the act.
When accident arises out of the employment.
5. Where the work, or an incident thereto, exposes the employe to the happening of an event causing an accident, the accident arises out of the employment.
Relation of servant exists while going to work on eighth floor of employer's building.
6. Where an employe is required to use a certain elevator, on premises of employer, in going to and from the eighth floor, where she works, the relation of master and servant applies while employe is on the premises at all times reasonable to her time of coming or going.
Use of elevator 20 minutes before beginning work reasonable.
7. Such employe, using such elevator 20 minutes before time to begin work, is there within a reasonable time, and on the premises "during the hours of service."
Minor over 16 years is lawfully employed and cannot maintain common law action for injury.
8. Employer used such elevator without guards as provided by law, and the employe, a minor over 16 years old, was injured thereon; held, that, the language "minors who are legally permitted to work under the laws of the state" excludes from the act minors whose employment is prohibited by law; i.e. Child Labor Law -- they being disqualified from the operation of the act by age only, and that the injured employe being over 16 years of age was "legally permitted" to be employed, and notwithstanding the illegal operation of the elevator, she is included in the statute and cannot maintain an action at common law to recover for her injuries.
George G. Chapin, for appellant.
Ernest E. Watson, for respondent.
Gudrund Novack was, at the age of 16 years and a few months, an employe of Montgomery, Ward & Company in St. Paul. She began her work at 8 o'clock a.m. She was required to use a freight elevator in going to and from the eighth floor where she worked. The elevator was not guarded as provided by law; it was unlawfully used. At 7:40 o'clock a.m. February 1, 1923, while riding in said elevator, and because it was not guarded as provided by law, she was severely injured, resulting in the loss of one leg. Her other leg was broken and she was otherwise severely injured. These statements are made as facts because they are alleged and for the purposes of this case, as against a demurrer, we accept them as true.
This action is brought by the father in behalf of his minor daughter, under the statute, to enforce the remedy which the common law gave the minor, to recover for her pain, suffering and loss of ability to earn money. The defendant has demurred to the complaint on the ground that the facts stated do not constitute a cause of action. This demurrer is predicated upon the proposition that, upon the facts disclosed, the daughter was under the Workmen's Compensation Act; and that that act has taken away the common law action.
Upon oral argument it was stipulated by counsel as a fact in the case, that no election was made not to be within the act. The plaintiff has appealed from the order of the trial court sustaining the demurrer.
The plaintiff in this action takes the position that the action at common law may be prosecuted, and that she is not precluded therefrom by reason of the Workmen's Compensation Act, because, as she says, it does not cover her for the reasons: (1) That at the time of her injury she was not engaged in, on or about the premises where her services were performed, nor was she, at the time of her injury, at a place where her services required her presence as a part of that service as an employe. Section 66 J, chapter 82, p. 126, Laws 1921. (2) That the language "including minors who are legally permitted to work under the laws of the state" (Laws 1921, c. 82, § 66, subd. 2 [page 126]), prevents the compensation act from applying to her, as she claims, because she, as a minor, was not "permitted to work" in or about an elevator that was operated without being equipped as provided by law.
1. Did this injury arise out of and in the course of the employment of the minor?
We have heretofore declined to attempt to give a comprehensive definition of this language which should include all cases embraced therein and with precision exclude those outside of its terms. We shall not attempt to do so now. It is sufficient to say that each case that comes to us must stand on its own facts. There are, however, some general characteristics that must exist.
The injury is received "in the course of" the employment when it comes while the employe is doing his work. It may be received "in the course of the employment" and still have no causal connection with it. State ex rel. v. District Court, 129 Minn. 176, 151 N.W. 912. "In the course of" refers to the time, place and circumstances under which the accident takes place. It may be "in the course of the employment" and yet the employe may be standing still and not physically moving in his work. Kaletha v. Hall Mercantile Co. 157 Minn. 290, 196 N.W. 261. He is still included when he does those reasonable things which his contact with his employment expressly or impliedly permits him to do. It "arises out of" the employment when it reasonably appears from all the facts and circumstances, that there is a causal connection between the conditions which the employer puts about the employe and the resulting injury. If the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises "out of" the employment. It excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the employe would have been equally exposed apart from the employment. The moving cause of danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business of the employer and not independent of the relation of employment. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence. Good illustrations are found in State ex rel. Anseth v. District Court, 134 Minn. 16, 158 N.W. 713, L.R.A. 1916F, 957; Mahowald v. Thompson-Starrett Co. 134 Minn. 113, 153 N.W. 913, 159 N.W. 965; Kaletha v. Hall Mercantile Co. 157 Minn. 290, 196 N.W. 261; State ex rel. McCarthy Bros. Co. v. District Court, 141 Minn. 61, 169 N.W. 274.
These general observations are supported by authority. Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 P. 212, L.R.A 1916F, 1164; McNicol's Case, 215 Mass. 497, 102 N.E. 697, L.R.A. 1916A, 306; Kimbol v. Industrial Acc. Com. 173 Cal. 351, 160 P. 150, L.R.A. 1917B, 595, Ann. Cas. 1917E, 312; Larke v. John Hancock Mut. Life Ins. Co. 90 Conn. 303, 97 A. 320, L.R.A. 1916E, 584; Jacquemin v. Turner & Seymour Mnfg. Co. 92 Conn. 382, 103 A. 115, L.R.A. 1918E, 496; Mueller Const. Co. v. Industrial Board, 283 Ill. 148, 118 N.E. 1028, L.R.A. 1918F, 891, Ann. Cas. 1918E, 808; Milliken's Case, 216 Mass. 293, 103 N.E. 898, L.R.A. 1916A, 337; Tarpper v. Weston-Mott...
To continue reading
Request your trial