Ryerson v. A.E. Bounty Co.

• Decision Date: 28 February 1928
• Citation: 140 A. 728,107 Conn. 370
• Court: Connecticut Supreme Court
• Parties: RYERSON v. A. E. BOUNTY CO. ET AL.

140 A. 728

107 Conn. 370

RYERSON v. A. E. BOUNTY CO. ET AL.

Supreme Court of Errors of Connecticut.

February 28, 1928

Appeal from Superior Court, Fairfield County; Earnest C. Simpson Judge.

Proceeding for workmen's compensation by William Ryerson complainant, opposed by the A. E. Bounty Company and another. From a judgment of the superior court, in trial to the court sustaining an appeal from the Compensation commissioner's finding and award and vacating the award, claimant appeals. Error, and cause remanded, with direction.

Joseph L. Melvin, of Stamford, for appellant.

Arthur B. O'Keefe and Thomas F. Mitchell, both of New Haven, for appellees.

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

HAINES, J.

There are no requests for change in the finding, and it appears that the plaintiff was 72 years of age and was employed at an average weekly wage of $21 as a watchman at the company's stables in Stamford, and was subject to call of his employer at all times during the 24-hour period. He lived above the stables, and it was a part of his duties to mix feed for the horses. In doing so it was the custom to " fix" the feed with saltpeter and nitre before giving it to them, and this was done in one of the rooms in which the plaintiff lived.

At 6 o'clock on the evening of October 23, 1926, while in his room, the plaintiff had finished the mixing of the feed, and before giving the mixture to the horses, he attempted to seat himself in a rocking chair to tie his shoe string, when he slipped and fell to the floor, fracturing his hip.

Before the commissioner, the defendant contended that the injury did not arise out of and in course of the employment, but the commissioner found Against this claim and awarded the plaintiff compensation. Upon appeal by the defendant, the superior court reversed this conclusion and vacated the award.

Two questions are thus presented by this appeal: (a) Whether the injury arose in the course of the employment; and (b) whether it arose out of the employment.

An injury arises in the course of the employment when it takes place (a) within the period of the employment; and (b) at a place where the employee may reasonably be; and (c) while he is reasonably fulfilling the duties of the employment or doing something incidental to it. Larke v. Hancock Mutual Life Ins. Co., 90 Conn. 303, 308, 97 A. 320, L.R.A. 1916E, 584; Harivel v. Hall-Thompson Co., 98 Conn. 753, 755, 120 A. 603; Whitney v. Hazard Lead Works, 105 Conn. 512, 517, 136 A. 105.

The facts found clearly bring the plaintiff within these requirements. He was on duty for his employer 24 hours each day. One of his specific duties was to mix the feed for the horses and give it to them. It further appears that the mixing was done in the plaintiff's room over the stables. No suggestion appears that his employment did not contemplate that he live over the stables and mix the feed there, and it is a fair inference that this was with the knowledge and the tacit assent of the employer. It is true the finding speaks of a custom to " fix" saltpeter and nitre with the feed, but this statement as to the method of making the mixture is not a fact of controlling importance.

An injury is said to arise out of the employment (a) when it occurs in the course of the employment, and (b) when the injury is the result of a risk involved in the employment or incident to it or to the conditions under which it is required to be performed. Marchiatello v. Lynch Realty Co., 94 Conn. 260, 263, 108 A. 799; Harivel v. Hall-Thompson Co., 98 Conn. 753, 757, 120 A. 603. The commissioner held that the facts satisfied these requirements, while the trial court reached the opposite conclusion.

In order to establish these requirements, it was necessary to find a causal connection between the injury and the employment or the conditions incident to it. Marchiatello v. Lynch Realty Co., 94 Conn. 260, 263, 108 A. 799; Gonier v. Chase Companies, Inc., 97 Conn. 46, 49, 115 A. 677, 19 A.L.R. 83. The trial court evidently felt it did not appear that the work was done in the plaintiff's room under a condition which was expressed or implied in the contract of employment. As we have already pointed out, and as will appear from a careful reading of the finding, the " custom" relates rather to the use of saltpeter and nitre than to the place where the food was mixed. It appears from the record that the plaintiff was not represented before the commissioner by counsel, but appeared in person. The established policy of courts requires that such facts as a claimant without counsel may establish shall not be unduly narrowed or minimized.

Properly read, paragraph 4 shows that the duty of the plaintiff was to mix the feed and that this duty was performed in his room. We are justified in concluding therefore that this was his duty at that time and place, and that the work was done in his room, if not with the specific consent, yet with the tacit assent, of the employer, and certainly for the mutual convenience of both parties to the contract of employment. If, under those conditions, a fire had broken out in the building and the plaintiff had been injured thereby, the case would fall directly within the decision in the Harivel Case, and it would have been held a risk arising out of the conditions of his employment.

But the defendant urges that in attempting to sit down for a moment while in the course of his employment he departed from that employment and engaged in an act personal to himself alone. It is obvious that, being in the active performance of his duty up to the moment that he attempted to sit down, and being, moreover, on duty at all times, the shoe string must have become untied during the course of the employment even if the employment had not been the cause of its becoming untied, as to which there is no finding. The fact is within common knowledge that a shoe string in that condition would have been apt to trip the plaintiff had he attempted to go down stairs with the feed without tying it. To hold, then, that sitting down to tie the shoe string was a departure from his duty is to hold that he was not justified in removing the danger which he would otherwise have incurred in the employer's service. But aside from these considerations, it has been many times held that a momentary or brief turning from the specific duty of the employee to other matters necessary or convenient in the ordinary course of things to enable the employee to continue in the performance of his duties does not interrupt the continuity of the employment. Such departures are very properly held to be acts naturally incident to the employment itself.

There is a close though not precise analogy between this case and several others which have been before us. In Richards v Indianapolis Abattoir Co., 92 Conn. 274, 276, 102 A. 604, the claimant's duties were those of a driver of the employer's meat truck, and at this time required him to take some meat to and up an elevator. The elevator being in use, he had 15 minutes to wait, and for the purpose of warming himself, he turned aside about 7 feet and took a seat 4 feet in front of the fire box of the boiler, where he fell asleep. The heat or a flying spark set fire to his apron, and he was burned. It was pointed out in that case that the claimant at the time of the injury was on duty, within his...