*1 Hillsborough, July No. 3667. Nov. Adm’x v. Arthur E. Moreau. Newell,
Mabel M. *2 (Mr. Stanley orally), & Carleton M. Brown for McLane, Davis plaintiff. (Mr. Phinney Phinney orally), & Bass defendant.
Sheehan, findings matter, As of fact made preliminary J. Kenison, being supported by accepted as the evidence are Trial Court by the legal questions in the order will consider the involved We true. in the defendant’s brief. they have been discussed “by within was not accident” argued that Newell’s death It is regard s. 2. The trend the recent cases of R. of the by design point From the of view accidental. assaults 134, 138), (Moore Company, N. H. popular sense v. 88 victim and truly sudden, unexpected and accidental. death was Newell’s last three particularly those decided cases, majority Horovitz, Modern Trends Workmen’s support view. years, Perry v. (1946); Duncan 21 Ind. L. J. 491-493 Compensation, Co., 318; v. Wortz Biscuit 210 Ark. Co., 79; Hagger Kan. Packing Echols, 157; App. Mo. 74 Ga. Co., Reardon Kaiser 18. of” question Newell’s did “arise is whether out next Trial “The Court. employment ruled employment,’ appears
‘arising of and in the course out which. laws, deceptively simple and liti workmen’s most Liberty Co., (U. S.) Mut. Ins. 91 L. Ed. Cardillo v. giously prolific.” weight of However, according great to the author modern out of compensable if the arises a work matter assault ity, assaults are quarrel employment. purely personal of a unrelated not out Principles Compensation, Workmen’s Trends Basic Current Aug., 1947) In this it is Soc’y (May, J. Note L. Mass. Palmer feeling ill between Newell and occurred because clear that done. relations, at work as a result the work while of the work 224 N. 671: the assault have Hegler Company, C. “While anger revenge, grew still rooted out resulted adequate For an collection cases and able employment.” sustaining Horovitz, proposition, see Assaults and discussion Laws, 41 Compensation Ill. L. R. 311 Horseplay under Workmen’s *3 (1946). did not “in the claimant’s death occur the contention that in view of liberal employment” his cannot be sustained
course of Gellis, given to this our law. Whitham interpretation Mills, 165; N. H. Maltais v. Assurance 226; Bernier v. N. H. H. true that the in the Society, 237, N. While is assault reasoning ease, supra, sportive nature, the of that Maltais by sport design not An assault or in decision is so limited. whether here, employment where, of was caused or is in the course working conditions. resulted part by or contended that Newell’s death was caused whole
It is L., 216, or c. of law serious and wilful misconduct. R. violation “Employee’s employer not s, shall Fault. 10, reads follows: any is or for to the workman which caused in whole liable law, or mis- part by intoxication, violation of serious or wilful Although battery, of Newell committed no conduct the workman.” has found that he an assault. At most it was the Court committed (R. 455, of c. s. simple L., 22) misdemeanor assault not the and aggravated L., determining R. felony of assault. c. s. 23. In meaning the assault is serious wilful within the whether statute, consider misconduct not we and the result. The mis- grave Here, must be and not trivial. as Maltais v. As- conduct Society, supra, simple battery hold that surance we a assault or a meaning not serious wilful within of the Work- Compensation men’s Law. Co., ante, Newell Insurance it was decided that Newell’s exclusionary
assault
a violation of law within the
an
that
policy.
Of course
contract decision is not res
clause
dealing
compensation case. There we
of this
were
with a
judicata
parties;
public
two
we have a
agreement between
here
statute
private
legislation
has
and will continue to
embodying remedial
receive
interpretation
purpose.
public
to effectuate
No
policy
liberal
in the former case of contract but it is involved in the
involved
relationship.
of master and servant
This was so even
instant
law,
see Richard
needWe preclude receiving his widow and children employee benefits compensation law. We do decide the workmen’s under every violation law did intend Legislature surprise industry labor, It come as a and the would was meant. every law, including violation the technical to rule that Legislature recovery. trivial, barred bar an employee, would on authorized such construction Any injured employer, from if he as a for his were errand L.,R. c. committing expectoration. crime of result If a workman should fine of one s. 17. receive the maximum cursing (R. 2) first s. offense should dollar employment causally injuries course violat- while receive *4 not be statute, injury compensable would under such ing examples extreme, they If indi- serve to these construction. Legislature did not intend to misdemeanors. that the include all cate the circumstances of this conclude under Newell’s We not a simple L., assault was violation of under R. and law technical 216, s. 10. c. “aggressor.” because
Compensation was also denied Newell was (112 A. point in the decisions on L. R. is conflict There much authority recovery. the of the modern is to allow 1258,1270) but trend by copious into bludgéon insensibility the bar cita In order prolix we refer discussion and collection of and footnotes tions part opinion.. in first in the articles cited defense cases in our compensa be found statute or in other “aggressor” not to reasoning By application of tort the defense has laws. been tion compensation already in some cases. We have judicially inserted (Maltais sportive similar defense assaults to read refused
443 judicial no reason for its Society,supra) we insertion Assurance see reaching we this result have endeavored follow in this assault. compensation reasoning leading three cases workmen’s able Mills, 470; Rutledge,J., N. Y. Cardozo,J., in Leonbruno v. 229 law: (2d) 11; Marble, Cardillo, J., F C. &c. Co. Hartford Society,supra. compensa- v. Assurance Plaintiff is entitled to Maltais L., with R. c. tion accordance
Exceptions sustained. All concurred. Rehearing. After opinion, filing foregoing
On Argument rehearing. for a on defendant moved invited c. s. application and construction R. 216 10. (Mr. Stanley
McLane, Davis & Carleton M. Brown for orally), plaintiff.
Sheehan, Phinney (Mr. Phinney orally), & Bass for the defendant. J. court is unanimous its plaintiff’s Kenison, injury “by arising caused accident out and in the course of the employment” L.,R. under s. We question reconsider the dependents plaintiff’s precluded receiving whether are death exclusionary provisions benefits under the of R. c.L., s. 10 which part by bar in whole or in plain- caused law, tiff’s “violation of or serious or wilful misconduct.” In ascertaining meaning statute it is material consider language the circumstances under which used, legislative judicial history objectives and the it seeks to attain. “New Hampshire (1911) of the first one the American states to adopt a workmen’s compensation valid act. Some of its features are unmistakably moulded after British act of 1906.” Mulhall v. (discussing 80 N. H. what now are sections 16— act). construing of the In the first case section of our act the court “A provision English noted: somewhat similar work- *5 compensation (60-61 Viet., 37) men’s act c. is construed the way.” Company, Boody same H. 208, 77 N. 212. The decision in Hoyt, 168, 171, involving Moore v. 80 N. H. 12 of section our act England, upon stated: “The same conclusion was reached a some- English “upon statutory provision.” It was the act similar what Hampshire statute was Thomson v. modelled.” New the which only precedent H. “The when 86 N. 450. available Company, English was statute” Manock v. Com- passed in 1911 the was the act (distinguishing our no N. H. act contained pany, 86 independent contractor). to of an compensation for servants provision parent English the that the statute was the model for appears It thus judicial prior to construction, at least Legislature and statutory provisions that were the extent this court to guide for substantially Company, supra, Thomson v. 438. similar. same English use workmen’s has made extensive earlier This court original in the construction of our act. In addi- cases King v. already examples: cases cited there are further tion Manning 404, 409; 316, 318; Railway, H. N. H. 78 N. Manchester, 355, 359, section 3 88 H. Inasmuch as Fox 10) not court (now had been construed act section the 1911 (P. L., of the Public or the Revised Laws to the revision prior Laws 216) original not en- L., c. and has been amended since its 178; R. c. English construction statute becomes actment, earlier pertinent. English acts used “serious and wilful misconduct” 10 of our same compensation. Section statute used the a bar disjunctive. Both that statutes their terms indicate in the
words must compensation. not a In the former it itself is bar misconduct Except wilful while the latter either. be both serious meaning in the words have the same both statutes. this distinction for “ merely deliberate, . that imports . . the misconduct ‘Wilful’ . . not spur on the the moment. . . . . thoughtless act ‘Serious’ consequences serious, were but that the actual misconduct itself was so.” Johnson v. Marshall, Sons & Co. Ltd., [1906] A. C. former 411, 412. decided that the misconduct not trivial and that neither. grave and Newell’s conduct was must be legislative complies with mandate this view It believed (R. L., s.7, 2), and was so understood construction ordinary Hampshire of the New act. “The framers English language grave. opposed ‘serious’in the ... word is— insignificant.” Compensation, trifling Beven, Workmen's 4th (1909), ed. simplified argument in over terms effect defendant's
Stated fight hired to and not to and that this was plaintiff work is that recovery precluding under the statute. While wilful
445
not
followed
it,
to
it has
been
appealing quality
argument
an
has
Employees
hired
are also
proves
it
too much.
analagous
and
cases
horseplay
engage
or
scuffle,
not to
commit batteries
to work and
depart
the work
237),
H.
nor to
from
Company, N.
(Maltais
93
v.
(Whitham Gellis,
v.
tobacco
personal purchase of
to
a
routine make
work.
from
hired
departures
nor
other
226),
N. H.
to make
91
in all
cited cases
Company,
Yet,
N. H. 375.
these
88
Gallienne v.
such conduct
recovery
allowed
was
compensation or
because
reasonably expected
employees
could
and therefore
of
as
be
of
employment.
result
adjudged
The inevitable
incidental
associating
together
is
stress
strain that
in work
the same
and
men
generally.
some
Arguments, horseplay and
affect human mortals
they
to
planned
bound
occur:
are
deviation from the
schedule are
wilful)
compensable
necessarily
when related to
(and
considered
may
argument,
work.
is to be ex
That an assault
arise from
pected
battery
horseplay.
will
There
as much as
a
occur
logical
recovery
no
and denial in the other
reason
one case
long
of
employment
is the
as
so
death
result
Guay Company,
N. H.
and
Bernier
stated
followed
Mills,
case,
N. H.
of the Maltais
such
words
“
working
. .
‘part
parcel
and
environment’.
and
conduct
perils
(p. 241).
therefore one of the
of the service.”
they
Arguments,
and assaults are as
are
altercations
inevitable
they
they
employment,
out
undesirable. Where
arise
properly regarded
employment
as an
Such
are mis-
hazard.
actions
aggra-
grave
not serious
of a
and
conduct but are
misconduct unless
Such actions are not wilful
unless
vated character.
Upon
premeditated.
facts
a work-in-
deliberate
duced,
battery by
upon
simple assault or
small foreman in hot blood
a
large
parcel
rough
part
a
subordinate
recalcitrant
ready working
of a
driver and his boss which
environment
truck
L., 216,
is neither
nor
R.
s. 10.
wilful
serious misconduct under
appears
of law”
in section
“Violation
10 after the word “intoxica-
tion” and
“or
before
serious or wilful misconduct.” Under
principle
well
established
construction each
these
compensation
three
must
defenses
be construed with reference
Co.,
16, 25;
other. State v. N. H. Gas & Electric
Davis
each
86 H.
204, 210;
N. H.
Keene
H.
District,
v. School
89 N.
A
strict construction of “violation of law”
include
would
every
exceeding
speed
violation
law.
limit
Truck drivers
per
one
hour
if
deprived
mile
would be
benefits
injured during
periods.
such
This is not reasonable nor is it the law.
Day v. Gold
Dairy,
Star
We construing must remember that this case we are compensation a employer may statute. “Since way the be in no to anything blame or have to injury, do with the liability to com pensate for it is no usual sense tortious in character.” Holland v. 83 N. H. 484. We should not conception insert the contributory fault which the statute discarded and which is not a bar supra, under section 10. Maltais case, prefer 242. We construction of history the statute consistent with its afliberal general policy rather than a strict and interpretation literal based on the tort law master and servant.
Former result affirmed. Blandin, J., dissented: others concurred.
Nov. Duncan, J., concurring: Upon reconsideration, I have no hesita- in joining majority tion with reaffirmance the view that the decedent’s was not “wilful misconduct” within the mean- ing of the statute. R. s. 10. Nor do I entertain doubts every that by causal violation of Legislature law intended to be a plain only bar. Rather it seems that such violations as should descend to the or level “serious wilful misconduct” were intended.
Whether the decedent’s misconduct could be found to have been question difficulty. “serious” is a not free Yet I am moved concur in affirmance of the former result finding. evidence fails to warrant such a misconduct, There was be- cause there was a violation of As misconduct, censurable, law. it was but not therefore If “serious.” “serious misconduct” be ordinary meaning, taken portray the record does not miscon- “grave” “aggravated” duct might more than what be .termed ordinary, or expectable, See, Horovitz, even misconduct. Assaults Horseplay, appear Ill. to me Rev. 337. Nor does Law to fall within the class of Seven as misconduct described “which, contemplated by reasonably prudent position if a man in all respects wrong-doer suggest probable conse would as a quence (Beven, life Compensation, and limb” Workmen’s ed., or, 401); 4th to employ comparable the somewhat standard of decisions, open Connecticut to be to classification as “misconduct exposed injury” (Gonierv. Chase Com deceased to serious panies, Inc., 46, 55) appreciated exposed 97 Conn. so and which he him at time injury. Mfg. Co., Mancini v. Scovill 98 Conn. 591, 597.
The decedent’s use proceed beyond misconduct did not a threat upon law, bare hands contumacious subordinate. As violation category it was not within the aggravated punish- and was assaults, able at most as a negligible fine, imprisonment misdemeanor *8 ninety a maximum of days. R. s. 22. c. Such misconduct reasonably is not to be our meaning classed as “serious” within the of compensation statute. purport
While the of in findings Trial far from Court’s is clear view of the use of symbol coupled disjunctive with the “and/or” (see, Bell, 352), In re Cal., 2d, 488; N. Y. Crooks, Cronin plain that section aspects 10 in of applic- some one was deemed able. The former conclusion of mis- this court that the decedent’s conduct cannot be any found to within come employed phrases in appears apply accepted that section tome conceptions, accuracy may with as much in be, as the circumstances. For join the reasons in indicated, I affirmance of the former result. J., dissenting: on Careful reconsideration this case
Blandin, rehearing, defendant’s motion for at was which new matter brought to arguments the attention of the court in the able briefs and of counsel for both parties, convinces me that Trial Court should plaintiff’s petition be sustained and the dismissed.
No plainer covering words could be than those the statute “Employee’s case which employer reads as follows: Fault. shall not be liable for injury to the in workman which caused by or part whole in intoxication, law, or or violation serious wilful R. L., (Italics the workman.” s. 10. supplied). applicable
So far to this says case the statute the workman shall by in his part first, injury his was caused whole if, not recover July previous opinion It is admitted our entered violation law. by his violation of law. Our earlier 2,1947, his death was caused court of this unanimous phase on another case rendered decision Second, the Company, ante, effect. Newell holds the same injury recover if his says the workman shall not statute plain or in his misconduct. That the part in whole serious caused of his misconduct cannot be reason the result serious tiff’s death was voluntarily deliberately engaged in “hot ably An assault denied. preceded supra, words in Newell v. blood” to use our own ending serious, most all physical threats, proddings and As scarcely be trivial. consequences; namely, death,.can deemed unforeseen, not dis result, however opinion states, “the Newell engaged.in hot blood.” fight in proportionate to the which Newell fight persons might anticipate that Reasonable well Id., 29. to “fix did Palmer party the other as Newell which one threatened long for a time all” blood had existed him once and for and where bad as a reasonable tragically as did this one. Newell should would end injury to or limb anticipated probable life unquestionably man have just fight. Plainly that was what he intended. as a result of this if his Third, provides that workman shall recover the statute part by That whole wilful misconduct. was caused obvious. Trial Court has so this instance is caused sup aggressor, completely facts plaintiff was the found that the so. July 2, admits this to be port finding and our supra, Company in Newell quote To our own unanimous decision “ *9 voluntarily 29, knowingly, without ‘what Newell did was done ” (Italics His in this satisfies supplied). error or mistake’ conduct 1214; A. L. R. every definition of wilful misconduct. See 83 Webster’.s (2d Dictionary, ed.) pp. New International law long history attempts The of vain to enact the prior passage 1911, together to fact that the Senate with the wording miscon- pass the and wilful refused to bill with the “serious “and,” of substituting place “or” in duct” but struck out “and” beyond question. their intent If be assumed indicates acquainted legislators profundities our and subtleties were with English plaintiff places upon texts and decisions which the reliance, using “and” which are based on statute the word foEowing assuredly they no of in their “or,” instead of had intention at Admittedly Legislature pass train. to the act all our was loathe upon they they impose and when did intended certain limitations to They change any recovery. past could have made a at time years. They Only thirty-five (1947) did not do so. at the last session by substituting they defining amend section “and” for “or” in did striking of misconduct, qualifying out the words “violation law” and relating to provision they intoxication. Laws Until they passed this amendment in 1947 intended the workman to be his causal violation of law or his barred either serious wilful they misconduct and said so. regarded lightly by legislators. of law was not our
'Violation The act, plus history passing of the difficulties the fact that the Legislature could have inserted the word “serious” before “violation law,” qualified they they of and thus it as did misconduct indicates allowing no had intention a workman to recover when his own was,causal. any say In violation law event to that in when plaintiff brief, in his as even admits intoxication alone was re- garded misconduct, Legislature as serious did not consider ending in assault death such a violation law as would be to a bar recovery appears to to contemplation. me be outside the realm sober Legislature recovery. intended all causal violations of law to bar improbability swearing, etc., such violations as cited as ex- amples majority opinion being Legis- causal obvious and the justified lature in making provision no for them.
If, plaintiff as ejusdem generis claims applied the doctrine to any application construction has here hurts rather helps plaintiff’s than subject quali- cause. This doctrine is general fication that broadly words to are be construed more than the specific Davis words. 88 N. H. 210. The obviously “violation law” is a catch-all here and con- should be broadly strued more only than specific “intoxication” the word precedes event, it. if plaintiff contends that violation of to on par law refers offenses intoxication, with the offense here was unquestionably more serious than intoxication.
The case Maltais v. Society, Assurance 237, appears 93 H. no support furnish real the result majority opinion. reached the victimof play, There horse aggressor a fight, was allowed to recover. opinion Furthermore the case, supra, 242, the Maltais to point careful out that the compensation, claimant of referred was, actively the decedent participating “not in the *10 sport at the moment when the occurred, accident most that and the plaintiff’s can be said in the favor on example this issue is that the set may the decedent prompted Cutting have to do what he did.” in the Mills, 165, N. H. also cited of Bernier v. Nor does the case of com- plaintiff. that case the claimant aid the majority opinion, mill part of the legitimate on a errand one going pensation was curiosity hand on a machine placed and and out to the other way to the one comparable is in no Obviously this case injured. before us. major plaintiff that the should recover
To the conclusion reach words word before the is forced to insert the “serious” ity opinion fit to do so. Legislature did not see law,” though the “violation of threats and preceded physical a deliberate assault says that It man; known to resulting gravest consequence in the proddings same It holds that death, not serious misconduct. namely Granting that assault is not even wilful. and deliberate intentional construed, yet language of the statute liberally is to be the act purposes of the ordinary meaning beneficent given its and the language altering plain “the are no excuse act 104, also, McIntire Company, 86 H. 107. See Manock v. used.” give the 368, To Geiger, ante, and authorities cited. Enterprises meaning” necessary to reach the or technical language the “strained Davis truly legislation.” “a form of majority here is conclusion H. Company, 88 N. majority persuasive opinion of the respect for the able and due With it holds reaching its conclusion me that three times appears to it disregards the English says. it It plain does not mean what Justice, findings rulings of Trial eminently sensible sound and Trial Justice holding no man could find as the reasonable even misconduct, here was serious wilful did, that- the offense previous opinion in Newell with our reconcile strains supra. in that while uncertainty certainty, for reasonable It substitutes to a limited extent as to what section bar advise their clients mean, s. does 10 itself as amended Laws give any idea what it does mean. cannot them a liberal is not between In all fairness it seems to me this an issue interpretation statute, but between a reasonable or strict judicial English equally plain interpretation plain and a case legislation.