U.S. Fidelity & Guaranty Co. v. Gagney

• Citation: 103 N.H. 420,174 A.2d 406
• Parties: U. S. FIDELITY & GUARANTY COMPANY et al. v. Evelyn C. GAGNE.
• Decision Date: 27 October 1961
• Court: New Hampshire Supreme Court

Page 406

174 A.2d 406

103 N.H. 420

U. S. FIDELITY & GUARANTY COMPANY et al. v. Evelyn C. GAGNE.

Supreme Court of New Hampshire.

Oct. 27, 1961.

Charles F. Hartnett, Dover, for defendant companies.

Robert A. Carignan, Rochester, Fisher, Parsons & Moran and Harold D. Moran, Dover, for plaintiff.

DUNCAN, Justice.

The defendants seek a decree in their favor as a matter of law upon the ground that the evidence did not warrant a finding and ruling that the employee's injury arose out of and in the course of her employment; because she failed to give notice in accordance with the statute; because the evidence was insufficient to support either the finding of total disability for the period in question or the finding that the disability was caused by the injury.

The undisputed evidence was that in order to reach her place of employment the plaintiff was required to leave the public sidewalk, proceed down some steps, along a pathway, over some railroad tracks and a canal bridge, across or along a private parking lot, and up one or more steps at the entrance to the factory. On February 7, 1956, the plaintiff was on her way to work at a quarter to seven in the morning. The route from the street to the factory was icy because of sleet and freezing rain. The plaintiff fell as she descended some steps before reaching the parking lot, and struck her head and arms, cutting her hand. She fell a second time as she entered the factory building, striking the tip of her spine 'in a hard fall.' There was evidence that she immediately gave notice of the injury to her hand, receiving first aid treatment, and that she thereafter remained at work during the regular hours for a period extending to July 25, 1956, when she stopped work because of pain which she was suffering in her back. It further appeared that during this period of employment she received unemployment compensation for a four-week period when she was laid off because work was slack.

The evidence warranted the finding and ruling that the plaintiff's injuries arose out of and in the course of her employment. Gallienne v. Company, 88 N.H. 375, 190 A. 274. The circumstances are distinct from those presented in Brousseau v. Blackstone Mills, 100 N.H. 493, 130 A.2d 543 relied upon by the plaintiff, where the employee was injured on a public sidewalk on her way to work. In the case at bar the plaintiff was utilizing the usual and expected means of access from the public street to her employment, and was injured upon property adjoining her place of employment and findably at the entrance to the employer's premises. She encountered the hazard because of her employment, and her entry to her place of employment was clearly an activity which was in the course of her employment. The place of injury was 'adjacent to the [employer's] premises and therefore identified with the premises in the sense that the employer should have removed the ice' or taken other appropriate precaution. 1 Larson, Workmen's Compensation, s. 15.22; Brousseau v. Blackstone Mills, supra, 100 N.H. 496, 130 A.2d 543.

The defendants complain that the evidence was insufficient to warrant a finding that the arthritic condition which produced the plaintiff's disability was caused by the injury. On this issue the plaintiff's attending physician testified that she was suffering from a generalized arthritic condition which in his opinion 'must have triggered off from that accident and gradually flared up and spread over the entire body.' He also testified that the trauma of the two falls had 'quite a bearing on it as a probable cause' of the 'flare up' of the arthritis. The evidence as a whole warranted a finding that the employee's arthritic condition was caused or aggravated by the falls and that it incapacitated her from performing any gainful employment. RSA 281:23. Bolduc v. Marcalus Mfg. Company, 96 N.H. 235, 73 A.2d 115.

The issue of notice requires no extended consideration. The plaintiff gave notice of her injury in writing immediately after it happened. If in fact she did not give notice of injury to her spine at that time, full notice was given seven to ten days later and before she terminated her employment. RSA 281:16-18 (supp). A report from her employer to the Labor Commissioner under date of February 17, 1956 indicated its knowledge at that time of an injury to the employee's back. The fact that a duplicate original notice signed by the employee was received by the Labor Commissioner more than a year after the injury does not in this case entitle the employer to rely upon the statutory provision that 'claim shall be barred * * * unless said notice is given to the employer within one year from the date of the accident.' RSA 281:17 (supp). (Emphasis supplied.) No evidence of prejudice arising out of any defect in notice was offered by the defendants, and the master expressly found that the employer was not prejudiced by any claimed deficiency of notice. Bolduc v. Somersworth Shoe Co., 97 N.H. 360, 89 A.2d 538.

Parenthetically it may be noted that since Davis v. City of Manchester, 100 N.H. 335, 126 A.2d 254, was decided the word 'injury' has been substituted by amendment for the word 'accident' in certain provisions of RSA 281:16 and 18 (supp) Laws 1957, c. 187, §§ 7, 9. However...