Weymouth v. Burnham & Morrill Co.

• Decision Date: 07 September 1938
• Parties: WEYMOUTH v. BURNHAM & MORRILL CO. et al.
• Court: Maine Supreme Court

1 A.2d 343

WEYMOUTH

v. BURNHAM & MORRILL CO. et al.

Supreme Judicial Court of Maine.

Sept. 7, 1938.

Appeal from Superior Court, Franklin County.

Proceeding under the Workmen's Compensation Act by Florence Weymouth, widow of George A. Weymo.uth, petitioner, opposed by Burnham & Morrill Company, employer, and others. From a pro forma decree of the justice of the superior court denying an award of compensation, petitioner appeals.

Affirmed.

Argued before DUNN, C. J, and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

Sumner P. Mills, of Farmington, and Berman & Berman, of Lewiston, for appellant.

Robinson & Richardson, of Portland, for appellees.

HUDSON, Justice.

Appeal from a pro forma decree of a Justice of the Superior Court denying an award of compensation under the Workmen's Compensation Act, Rev.St. 1930, c. 55, § 1 et seq.

The petitioner's husband, 70 years old and lame, was killed on the 4th day of September, 1937, while "in the course of" his employment with the defendant company. He worked as a mechanic in its corn factory at Farmington Falls. He lived from a third to a half of a mile distant therefrom and for conveyance to and fro used an old Model T Ford. The morning of the accident, he began work at 6:30 and worked until midnight. On that day he parked his car in an area used generally by the workmen for parking purposes. Parallel with the wall of the factory and near it was a ditch some two feet in depth and width. He left his Ford approximately three or four feet outward from the ditch, headed toward the factory. Upon leaving for home that night, he cranked his car and immediately it started ahead, struck and pushed him against the wall. He was injured seriously and died a few hours after being taken home.

The Ford had an old-style planetary transmission. The emergency brake was out of repair and it did not throw the clutch out as it should have done. So the car, when cranked, started ahead and caused the accident.

Two questions are presented. First, is the decision reviewable, and second, did the accident actually "arise out of" the employment ?

First: The commissioner found and stated:

"While it was convenient for him to use his Ford truck in going to and from his work, we do not find that it was a necessity as he lived within a short distance of the factory in a village which had good streets and sidewalks and his lameness did not prevent him from walking about attending to the machines in, the factory."

The employer contends that this was a finding of fact which, under the statute, is final in the absence of fraud (see Section 36, Chapter 55, Rev.St.1930), and that if he were using his automobile unnecessarily, simply for his own convenience, the injuries received are not compensable.

"When the commissioner finds the facts in favor of a petitioner in the absence of fraud, the finding is final, if there is any legal evidence, however slender, to sustain it. It is when the commissioner decides facts without evidence or upon illegal or inadmissible evidence, that an error of law is committed which this court is required to correct. Gauthier's Case, 120 Me. [73] 78, 113 A. 28; Mailman's Case, 118 Me. [172] 176, 106 A. 606.

"But where, as in this case, the finding and decree of the commissioner are against the petitioner, no, such rule prevails." Orff's Case, 122 Me. 114, 116, 119 A. 67.

So in the instant case, although this was a finding of fact, it was against the petitioner and does not come within the rule of finality.

It being reviewable, the case may be disposed of on the second ground now to be considered.

Second: Did this accident arise out of the employment?

One of Maine's earliest cases to deal with the words "arising out of" employment is Westman's Case, 118 Me. 133, 106 A. 532, where it was stated on page 143, 106 A. on page 537:

"The great weight of authority sustains the view that these words 'arising out of mean that there must be some causal connection between the conditions under which the employe worked and the injury which he received."

Cited therein is Mitchinson v. Day Bros, 6 B.W.C.C. 191, holding that '"Nothing can come "out of the employment" which has not, in some reasonable sense, its origin, its source, its causa causans, in the employment.'" Then our court continued :

"It might with safety be said that, in order for the accident to arise out of the employment the employment must have been the proximate cause of the accident."

Also cited is the leading Massachusetts McNicol's Case, 215 Mass. 497, 102 N.E. 697, L.R.A.1916A, 306, wherein is this statement:

"It arises out of the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, 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. But 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 workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant."

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