31 A.2d 329 | Conn. | 1943
The amended finding of the commissioner, as corrected, discloses the following facts: The plaintiff is the widow of Julius Herbst, who for fifteen years before his death worked as a maintenance man at the East Norwalk plant of the Hat Corporation of America, hereinafter referred to as the defendant. At *3 about 9:40 a.m. during the regular working hours of Herbst on August 31, 1939, he secured a requisition for five pounds of nails and took it from plant 3 of the defendant to plant 1, situated some little distance away. When Herbst arrived at plant 1 the nails were not obtainable and he started to return to plant 3. There were three possible routes between plant 1 and plant 3: one by the public highways, one through an adjoining coalyard and the other up a pathway to a spur track on the property of the New York, New Haven and Hartford Railroad Company and then along the track to another path which descended to plant 3. The last route was the shortest, and this Herbst took. The defendant, by signs posted in its plant and by personal instruction to its employees, had forbidden the use of this path along the spur track. In spite of this the path, to the knowledge of the defendant, was frequently used by its employees in going back and forth between the plants, and while the defendant had put up signs not to use railroad property, and sporadically had forbidden employees to use it, it had made no great or successful effort to stop that use.
When Herbst reached the track he was carrying a length of pipe. The pipe was not for use in his work or for use in the plant. Where or how he procured the pipe did not appear. While Herbst was walking along the track with this pipe it got into the path of a passing train, and was struck by the train, and as a result Herbst was killed. The train did not strike Herbst and he would not have been hurt if he had not been carrying the pipe. Herbst was not guilty of serious and wilful misconduct. On these facts the commissioner concluded that Herbst did not sustain an injury arising out of and in the course of his employment which resulted in his death. *4
There is considerable question whether the conclusion that the injury did not arise in the course of the employment is supported by the finding as corrected. Whether the injury arose out of the employment depends upon the determination of the intent and purpose with which the acts were performed by Herbst. A finding of a fact of this character is the finding of a primary fact. Herbst was instantaneously killed and no information as to his purposes or intent was available from his lips. Since there is no direct evidence of these facts the question is whether they can reasonably be inferred from all of the evidence in the case. Howe v. Watkins Bros.,
In Larke v. Hancock Mutual Life Ins. Co.,
The commissioner apparently decided that Herbst was not in the course of his employment because he was taking a forbidden route and was a trespasser on railroad property. This result does not necessarily follow from the facts found. See Procaccino v. Horton Sons,
Since the plaintiff must prove both that the injury arose in the course of and out of the employment, if she fails to prove the first that ends the case. If, however, the commissioner finds that she has prevailed on the first issue, he must then consider the second. While it has been corrected in some respects, the finding that the plaintiff had failed, in effect, to prove that Herbst was carrying this piece of pipe as a part of his work for his employer cannot be successfully attacked in any event, and the injury to Herbst would not have been caused except for the pipe. Under the finding the carrying of the pipe had nothing to do with his employment and it was because he allowed the pipe to get in the way of the train approaching on the next track that his death occurred. The precise question on this phase of the case is, what incidental acts, performed in the course of the employment but not performed for the benefit of the employer, will prevent recovery?
It has been said that acts performed in the course of the employment ordinarily arise out of it. Reeves v. *7
Dady Corporation,
Turning to the case at bar, it appears that the commissioner originally refused compensation on the ground that Herbst was taking a forbidden route: On the remand, he found, more or less incidentally, that, in addition, Herbst was on an errand of his own and this was the immediate cause of his death. A new trial may reach the same result but, for the reasons stated, the plaintiff is entitled to have her claim considered in the light of the rules herein set forth. If the employment was the principal thing and the carrying of the pipe was an unimportant incident, a different conclusion might be reached.
There is error, the judgment is set aside and the case is remanded to the Superior Court with direction to sustain the appeal and remand it to the commissioner for further proceedings in accordance with law.
In this opinion the other judges concurred.