Wolfe v. Shorey

• Decision Date: 15 May 1972
• Citation: 290 A.2d 892
• Parties: David R. WOLFE v. Keith R. SHOREY and/or Hartford Accident & Indemnity Company.
• Court: Maine Supreme Court

Page 892

290 A.2d 892

David R. WOLFE v. Keith R. SHOREY and/or Hartford Accident & Indemnity Company.

Supreme Judicial Court of Maine.

May 15, 1972.

Hewes & Parrish by Richard D. Hewes, Portland, for plaintiff.

Mahoney, Desmond, Robinson & Mahoney by Robert F. Hanson, Portland, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

POMEROY, Justice.

One reading the record in this Workmen's Compensation case is left with the feeling the whole story has not been told.

The Industrial Accident Commissioner, after hearing, found that the appellant received a personal injury in the course of his employment but not arising out of it.

The appellant contests this latter conclusion.

An appeal from a Pro Forma Decree of a Justice of the Superior Court sustaining the Commissioner's conclusions brings the matter before us.

We conclude the Commissioner's finding was correct and deny the appeal.

David Wolfe, appellant herein, was employed by appellee Shorey to drive a truck carrying mail from Rockland to Portland.

Wolfe was a bonded driver.

It was his responsibility upon arrival in Portland to unload the mail cargo from the truck and have it checked into the Post Office after notifying a particular supervising postal employee of the arrival of the truck and its cargo.

On the day the injury was received the employee arrived at the Post Office, backed his truck into the loading platform and went into the Post Office, there 'to tell Mr. Hayes I was in.'

This trip into the Post Office was celarly in the course of his employment and the Commissioner correctly so found. The trip back out of the building and the events which then occurred are described in the appellant's own words as follows:

'A I went back out on the platform and I met Mr. Serfes. I had spoken to him on the way in, a very short conversation, but I had spoken to him and he was coming towards me and I was-we met each other kind of face to face and I nodded to him and said, 'hi, nick,' and as I passed him why-as I spoke to him why I reached out and I tapped him more or less on the side seem-not with-only with just one finger, I mean just the back of my hand. It wasn't a blow or a push or a shove or anything that can be construed as such. It was as anyone would do normally in meeting a friend or anything and I have known him-I might add, I've known him for 2 1/2 years, to be a good friend and everything.

Q Then what happened?

A Well, I took a few more steps and was headed for the truck-

Q The Shorey truck?

A Yes, sir. And the crew had gotten out there and was starting to unload it so I was headed in that direction and all of a sudden I was seized from behind and I-there was no warning, no words.'

To be compensable an injury to an employee who is within the coverage of the Workmen's Compensation Act, 39 M.R.S.A. 1, et seq., must not only take place in the course of his employment but also arise out of the employment. Larou v. Table Talk Distributors, Inc., 153 Me. 504, 138 A.2d 475 (1958).

'To arise out of the employment the injury must have been due to a risk of the employment. * * * There must be some causal connection between the conditions under which the employee worked and the injury which he received. If the injury is sustained by reason of some cause that has no relation to the employment it does not arise out of it. The test is always whether or not the employee was injured as a result of a hazard of his employment.' Metcalf v. Marine Colloids, Me., 285 A.2d 367 (1972).

The burden of proving by a fair preponderance of the evidence that the accident occurred in the course of and arose out of the employment is on the petitioner. The record is absolutely barren of any evidence from which it could reasonably be inferred that the injury which the appellant received was a result of a hazard of his employment.

As the Commissioner aptly said in his Decree:

'Had his employment exposed him to a dangerous environment we might approach this decision differently. There was no danger of assault, incident to, connected with and arising out of the use of the Post Office platform. No work related quarrel, from the evidence, gave rise to the assault. There also is no evidence that the assault was due to an emotional flare-up generated by working conditions.'

The Commissioner suggests that the approach to the decision might be different if it were shown that the employment exposed Wolfe to a dangerous environment. This was an obvious reference to Mr. Justice Cardozo's opinion in Leonbruno v Champlain Silk Mills, 229 N.Y. 470, 128 N.E. 711 (1920).

'Whatever men and boys will do, when gathered together in such surroundings, at all events if it is something reasonably to be expected, was one of the perils of his service. * * * The claimant was injured, not merely while he was in a factory, but because he was in the factory, in touch with associations and conditions inseparable from factory life. The risks of such associations and conditions were risks of the...