White v. Arnold Wood Heel Co., 3093.

• Decision Date: 03 October 1939
• Docket Number: No. 3093.,3093.
• Citation: White v. Arnold Wood Heel Co., 90 N.H. 315, 8 A.2d 737 (N.H. 1939)
• Parties: WHITE et al. v. ARNOLD WOOD HEEL CO.
• Court: New Hampshire Supreme Court

8 A.2d 737

WHITE et al.

v. ARNOLD WOOD HEEL CO.

No. 3093.

Supreme Court of New Hampshire. Hillsborough.

Oct. 3, 1939.

Transferred from Superior Court, Hillsborough County; Lorimer, Judge.

Proceeding under the Workmen's Compensation Act, Pub.Laws 1926, c. 178, § 1, as amended by Laws 1937, c. 159, by Nathan I. White and another, administrators, claimants, opposed by the Arnold Wood Heel Company, employer. Facts agreed, and case transferred without ruling.

Case discharged.

Petition, for compensation under P.L. c. 178, as amended by Laws 1937, c. 159. Facts agreed.

The defendant is a corporation organized under the laws of this state and engaged in the business of manufacturing wood-heels in the town of Seabrook. It employs more than five persons and operates power driven machinery. The plaintiffs' decedent was the owner of fifty per cent of the defendant's stock, was its treasurer, and in addition was employed by it as a traveling salesman, in which latter capacity he received a salary of ninety dollars per week.

On January 5, 1938, the decedent, while being driven over a public highway in an automobile owned by the defendant and operated by another of the defendant's employees, was fatally injured in a collision between that automobile and an unlighted motor truck. At the time of the accident the decedent was on a selling trip for his employer.

The question of whether or not, under the foregoing facts, the plaintiffs are entitled to an award of compensation was transferred without ruling by Lorimer, J.

Walter M. Espovich and W. Stanley Soroka, both of Haverhill, Mass., for plaintiffs.

Thorp & Branch, of Manchester, for defendant.

WOODBURY, Justice.

As originally worded the Compensation Act, P.L. c. 178, § 1, applied "only to workmen engaged in manual or mechanical labor" in the employments enumerated, one of which was (par. II), "Work in any shop, mill, factory or other place on, in connection with or in proximity to, any hoisting apparatus, or any machinery propelled or operated by steam or other mechanical power in which shop, mill, factory or other place five or more persons are engaged in manual or mechanical labor." These words, we recently held, were not broad enough to extend the benefits of the act to a clerk in a retail department store (Davis v. W. T. Grant Company, 88 N.H. 204, 185 A. 889), and the plaintiffs admit that this decision controls their case. However, after the decision in the Davis case was handed down, the legislature amended section one of the original act (Laws 1937, c. 159, § 1), by striking out the words "only" and "in manual or mechanical labor," and in addition amended paragraph II of that section so that it is now, and was at the time of the decedent's death, applicable, with exceptions not here material, to "workmen" engaged in "Any industry, enterprise or business in which five or more persons are employed by a common employer." The plaintiffs contend that under the terms of this amendment they are entitled to an award of compensation.

Obviously the legislature in amending section one of the Compensation Act intended to broaden the scope of the earlier statute in three important respects. In the first place it extended the benefits of the act to workmen in general, in the second place it removed the requirement that the employment involve connection with or proximity to "any hoisting apparatus, or any machinery propelled or operated by steam or other mechanical power," and, in the third place, it abandoned the requirement that the employment be "in any shop, mill, factory or other place." Since there can be no doubt under the agreed facts but that the decedent suffered an injury by accident arising out of and in course of his employment, and since there can also be no doubt but that the defendant employed five or more persons in a type of industry which involved physical danger to the persons engaged therein, it follows that the plaintiffs are entitled to compensation under the act as amended if the legislature intended to include persons employed as salesmen within the meaning of the word "workmen" as that word is used standing alone in the amendment.

The plaintiffs contend that this word without the qualifying phrase "engaged in manual or mechanical labor" should be construed as synonymous with the word "employees." The defendant, on the other hand, while admitting the broadened scope of the act, contends, first, that the decedent was not a member of the class ordinarily described as "workmen", and second, that the legislature intended the act to continue to apply only to persons peculiarly exposed to the hazards of industry for the reason that in the amendment the legislature retained the wording of the original statute to the effect that it was applicable only to the "employments described in this section, which, from the nature, conditions or means of prosecution of such work, are dangerous to the life and limb of workmen engaged therein, because in them the risks of...