Ohmen v. Adams Bros.

• Decision Date: 10 July 1929
• Citation: 109 Conn. 378,146 A. 825
• Court: Connecticut Supreme Court
• Parties: OHMEN v. ADAMS BROS. ET AL.

146 A. 825

109 Conn. 378

OHMEN v. ADAMS BROS. ET AL.

Supreme Court of Errors of Connecticut.

July 10, 1929

Appeal from Superior Court, Litchfield County; Alfred E. Baldwin Judge.

Proceedings under the Workmen's Compensation Act by L. Alfred Ohmen claimant, opposed by Adams Bros., employers, and others. Award of the compensation commissioner in favor of claimant was affirmed by the superior court on trial to the court, and the appeal dismissed, and, from the judgment of the superior court, defendants appeal. No error.

The plaintiff-claimant is a carpenter, and had worked for defendants Adams Bros. off and on for some four years next before October 3, 1927, at which time a contract of employment existed between him and Adams Bros., who were carpenters engaged in erecting and repairing buildings having their headquarters at New Preston, and doing a general line of carpenter work at various points where they might have employment, principally in the town of Washington. The employees of Adams Bros. had no fixed place of employment but went to such points as their employers instructed them to go and where they had work for them. The plaintiff lives in the town of Warren near Waramaug Lake, on a side road connecting with the main highway running along the easterly side of Waramaug Lake to New Preston and New Milford, and going from its juncture with this main highway to the north to the village of Warren. It was the plaintiff's custom during the entire term of his employment with Adams Bros. to go from his residence to such points as his employment called him, driving his own car and receiving no allowance for transportation. This custom was known to and acquiesced in by his employers. It was his custom to be at the place of his employment ready for work at 8 a. m., except on occasions when he could not reach his work at this time, owing to its distance from his residence. His wages began at 8 a. m. whether he had reached the job or not. If his employers had not notified the plaintiff where he was to work, or if he did not know his place of work, he would proceed from the branch road on which he lived to the main highway leading from Warren to New Preston, where he would stop at his employers' office and receive directions where to go.

If, however, he knew before leaving his home where he was to work, he would go there by the most direct route. During his employment with Adam Bros., the plaintiff had asked and received permission from them to go to Warren village at all elections and town meetings. October 3, 1927, was the annual town meeting day in Warren, and his employers, at the request of the plaintiff, had given him permission to go there to vote. He was paid as usual from 8 a. m., while the polls did not open until 9 a. m. On this morning the plaintiff went from his home to the village of Warren, a distance of three and one-half miles, and was the first voter of the day, and then immediately proceeded towards the place of his employment in Washington Green some six to seven miles from his home, which he knew to be his place of work for that day. When he reached the southerly end of Waramaug Lake, he took the highway known as Flirtation avenue, which connects with the state highway from New Milford to Washington; this route was a material saving in time and distance traveled over the route to New Preston. It was practically taking one side of a triangle instead of two. When the plaintiff reached the junction of Flirtation avenue with the state highway, his route required him to cross the state highway to its right side, and then proceed about five miles to his place of work at Washington Green. It was then about 9:20. As he approached the junction of these roads, he saw a car approaching from his left, and, in the exercise of a reasonable judgment, believed he had time to cross before the other car from the left would reach there, and he believed it was safer to undertake to cross the highway than to bring his car to a stop before crossing. The car from the left approached rapidly, collided with plaintiff's car, wrecking it, and inflicting serious injuries upon him which will incapacitate him for an indefinite time in the future. The commissioner found that the plaintiff sustained a personal injury by accident arising in the course of and out of his employment.

Maltbie and Banks, JJ., dissenting.

Harold K. Watrous, of West Hartford, for appellants.

William A. Kelly, Raymond E. Hackett, and John D. Walker, all of Stamford, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

WHEELER, C.J. (after stating the facts as above).

The appeal is predicated upon the alleged error of the trial court in holding that the injury to the plaintiff arose out of and in the course of his employment with the defendants Adams Bros. The General Assembly in chapter 307, Pub. Acts 1927, in an amendment to the Compensation Act, re-enacted in substance the fundamental provision of this act that compensation can only be a warded for personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained. We had in a series of decisions defined and explained the terms arising out of and in the course of one's employment in consonance with the definition of these terms in the states having the contractual form of Compensation Act. Section 7 of this chapter amended section 5388, Gen. St. 1918, and incorporated in it this definition of these terms: " The words ‘ arising out of and in the course of his employment,’ as used in said chapter 284, shall mean an accidental injury happening to an employee or an occupational disease of such employee originating while he shall have been engaged in the line of his duty in the business or affairs of the employer upon the employer's premises, or while so engaged elsewhere upon the employer's business or affairs by the direction, express or implied, of the employer. A personal injury shall not be deemed to arise out of the employment unless causally traceable to the employment other than through weakened resistance or lowered vitality."

The first of these sentences purports to define both the arising in the course of the employment and the arising out of the employment. If it stood alone, we fear it would be necessary to hold that it at most defined the term arising in the course of the employment, and did not even attempt a definition of arising out of the employment. To reach the legislative intent, it is necessary to read the second sentence with the first and to...