St. John v. U. Piccolo & Co., Inc.

• Citation: 128 Conn. 608,25 A.2d 54
• Court: Connecticut Supreme Court
• Decision Date: 06 March 1942
• Parties: ST. JOHN v. U. PICCOLO & CO., Inc., et al.

25 A.2d 54

128 Conn. 608

ST. JOHN

v. U. PICCOLO & CO., Inc., et al.

Supreme Court of Errors of Connecticut.

March 6, 1942.

[Copyrighted material omitted.]

Appeal from Superior Court, New Haven County; Dickenson, Judge.

Proceeding under the Workmen's Compensation Act by Ralph St. John, claimant, opposed by U. Piccolo & Company, Incorporated, and others. From a judgment sustaining an appeal from a finding and award of the compensation commissioner for the third district, which dismissed the claim for compensation, and setting aside the commissioner's award, the defendants appeal.

Error; the judgment set aside and case remanded with directions.

Before MALTBIE, C. J., and AVERY, BROWN, JENNINGS, and ELLS, JJ.

Martin E. Gormley, of New Haven, for appellants (defendants).

Joseph Weiner, of New Haven, for appellee (plaintiff).

MALTBIE, Chief Justice.

The plaintiff in this case claimed compensation from his employer for a hernia claimed to have been incurred in the course of his employment. The case was heard by the commissioner, who found these facts: The plaintiff was in the employ of the named defendant. His duties were to load and unload produce from trucks and deliver it to his employer's customers. On March 19, 1941, he was directed by his superior to put a one hundred pound bag of potatoes on the delivery truck he was loading. He put the bag on a hand truck, wheeled it over to the delivery truck, lifted the bag of potatoes from the hand truck and put it on the back of the delivery truck, got on to the delivery truck and moved the bag of potatoes to the front. He then went to the rear of the truck and got down on the ground. As he was walking back from the delivery truck to the defendant's store, he felt a burning sensation in his lower left abdomen. He told his superior about the pain and on the latter's advice sat down for about five orten minutes. His superior then drove him home. That evening, the plaintiff consulted a doctor, who found upon examination a swelling in the left groin and diagnosed the condition as an indirect inguinal hernia. The commissioner found that the hernia was not the result of any accidental injury accompanied by pain suffered by the plaintiff and dismissed the claim for compensation. On appeal to the Superior Court, the case was remanded to the commissioner for a finding as to the existence or non-existence of a pre-existing hernia. The commissioner found that the hernia did not pre-exist the incident of March 19, 1941. The trial court thereupon reversed the decision of the commissioner and remanded the case to him for an award in favor of the plaintiff, and from this decision the defendants have appealed.

The Workmen's Compensation Act, General Statutes, § 5237, provides: "In order to be entitled to compensation for a hernia, the employee shall prove that the hernia resulted from an accidental injury accompanied by evidences of pain, that inability to work followed such accident within one week, that there was not a pre-existing hernia at or prior to the accident for which compensation is claimed and that, within two weeks thereafter, the facts of such accident were communicated to the employer." The defendants claim that a hernia to be the subject for compensation must result from an "accidental injury" and that where it comes about in the ordinary pursuit of one's employment it is not within the definition of the statute. Our compensation law, unlike those in many of the other states, does not make the basis of recovery in ordinary cases the occurrence of an accidental injury, but provides compensation where a "personal injury" is sustained which arises out of and in the course of employment. General Statutes, § 5226. This gives to our act a scope perhaps broader than that of many of the acts in other states. Madden's Case, 222 Mass. 487, 489, 111 N.E. 379, L.R.A.1916D, 1000. We have had occasion to consider what would constitute an accidental injury only incidentally. In Linnane v. Ætna Brewing Co., 91 Conn. 158, 162, 99 A. 507, 509, L.R.A.1917D, 77, we stated: "An accidental bodily injury may therefore be defined as a localized abnormal condition of the living body directly and contemporaneously caused by accident; and an accident may be defined as an unlooked-for mishap or an untoward event or condition not expected." We repeated this definition in Ahern v. Spier, 93 Conn. 151, 152, 105 A. 340.

Even under the acts of other states it is generally held that an internal injury that is itself sudden, unusual and unexpected is none the less accidental, because it is incurred in the course of the employee's ordinary work; and that an injury incurred by a workman while performing his work in the normal, ordinary way may be an "accidental injury" and compensable. Fenton v. J. Thorley & Co., Ltd., App. Cas. [1903] 443, 446, 449, 451, 452, 453; Mamie Taylor's Case, 127 Me. 207, 209, 142 A. 730; Mederos v. McLeod, R.I., 14 A.2d 22, 24; Hamilton v. Pennsylvania R. R, 298 Pa. 22, 24, 147 A. 837; Gilliland v. Ash Grove Lime & Portland Cement Co., 104 Kan. 771, 773, 180 P. 793; Baggot Co. v. Industrial Commission, 290 Ill. 530, 532, 125 N.E. 254, 7 A.L.R. 1611; Bystrom Brothers v. Jacobson, 162 Wis. 180, 181, 155 N.W. 919, L.R.A.1916D, 966; Brown v. Lumbermen's Mutual Casualty Co., 49 Ga.App. 99, 101, 174 S.E. 359; Juhl v. Hussman-Ligonier Co., Mo.App, 146 S.W. 2d 106, 108. This rule has been applied in cases of hernia. Giguere v. E. B. & A. C. Whiting Co., 107 Vt. 151, 156, 177 A. 313, 99 A.L.R. 196; Matter of Williams v. Duff Distributing Co., 246 App.Div. 871, 284 N. Y.S. 880; Zappala v. Industrial Ins. Commission, 82 Wash. 314, 316, 144 P. 54, L. R.A.1916A, 295; Gulf States Creosoting Co. v. Walker, 224 Ala. 104, 106, 139 So. 261; Smith v. Cabarrus Creamery Co., 217 N.C. 468, 471, 8 S.E.2d 231; Webster v. Lloyd A. Fry Roofing Co., 177 Tenn. 122, 125, 146 S.W.2d 946; Drecksmith v. Universal Carloading & Distributing Co., Mo. App, 18 S.W.2d 86, 88; Poccardi v. Public Service Commission, 75 W.Va. 542, 547, 84 S.E. 242, L.R.A.1916A, 299. There would be no question under our act that hernia arising out of and in the course of the ordinary pursuit of one's employment would be compensable were it not for the specific provisions in the act we have quoted.

These originated in certain amendments to the act made by the legislature in 1927. Public Acts 1927, Chap. 307, § 4. These amendments were the result of an agreement between the representatives of both employers and employees. Dissenting opinion of Wheeler, C. J, in O'Brien v. Wise & Upson Co., Inc., 108 Conn. 309, 323, 143 A. 155. The language of the provisions concerning hernia was somewhat changed at the next session of the legislature, taking then its present form, Public Acts 1929, Chap. 242, § 2; but the requirement that, in order to recover for a hernia, the employee must prove that it "resulted from an accidental injury" was retained. If we were to apply to this clause in the act the broad definition of accidental injury to which we have referred above, the hernia itself would constitute it. That would make entirely su-perflous the requirement of proof that it "resulted from an accidental injury," and interpret the provisions as requiring only proof of hernia accompanied by evidences of pain, with the...