Flanagan v. Webster & Webster , 107 Conn. 502 ( 1928 )

The commissioner made an award of compensation to the plaintiff-claimant, from which defendants appealed. The Superior Court reserved the case upon the finding of the commissioner for the advice of this court. On December 23d 1926, the plaintiff was and had been for less than two weeks prior to this date in the employ of the defendant-employers and at work upon the State highway in the town of Cheshire. The plaintiff lived in the village of West Cheshire. The only way in which he could reach his work was through transportation furnished by the defendant-employers in one of their trucks which stopped for him in the morning usually at a point on the State road and carried him to his place of work. It ordinarily came along in time to get the men to their work at six-thirty a.m. On the stated morning, the plaintiff left his home and walked to the State road where the truck usually picked him up. It was late on this morning; the weather was cold, and because of this the plaintiff walked along the road in order to keep warm, and upon its left side. The truck came up with him, and stopped on the right-hand side of the road for him to board it. While plaintiff was crossing the highway to board the standing truck he was struck by an automobile and sustained a fracture of the femur. The commissioner held upon these facts that the plaintiff when injured was doing something incidental to his employment, and that the injury arose out of and in the course of his employment. The defendants claimed that as the plaintiff had not actually boarded the truck, he was not on premises controlled by the employers, and consequently the injury did not arise out of and in the course of his employment. If plaintiff's injury occurred in the course of his employment, manifestly it must have arisen out of the employment. The sole question for our determination is, did plaintiff's injury arise in the course of his employment? "``In the course' of points to the place and circumstances under which the accident takes place and the time when it occurred". An injury is "said to arise in the course of his [the employee's] employment when it occurs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment, or engaged in doing something incidental to it." Larke v. Hancock Mutual Life Ins.Co., 90 Conn. 303, 308, 97 A. 320; Whitney v. HazardLead Works, 105 Conn. 512, 517, 136 A. 105. As a general rule, employees will not be regarded as in the course of their employment while going to or returning from the place of their employment. We note, inLake v. Bridgeport, 102 Conn. 337, 128 A. 782, that the rule is subject to many exceptions; four of these we specify in Whitney v. Hazard Lead Works, supra, and all of the four exceptions find illustration in our decided cases. Two of these exceptions are: "Where the employer contracts to and does furnish transportation to and from work," and "where the employee is using the highway in doing something incidental to his employment, with the knowledge and approval of the employer." The award made to the plaintiff-claimant must be brought within these exceptions if it is to be sustained.

The defendant-employers furnished the plaintiff transportation to and from his place of work. The work began when the employee reached the place of work. The employment certainly included the period of transportation, for that was by the terms of the employment made incidental to it by the express agreement of the employers. And we have held that the relation of master and servant exists during the period of transportation whether the transportation be under the express agreement of the employer, or by his implied consent inferred from his knowledge of the practice of transporting the employee and his expectation that this practice would continue. Swanson v. Latham, 92 Conn. 87, 101 A. 492, and Sala v.American Sumatra Tobacco Co., 93 Conn. 82,105 A. 346, were cases involving injuries to employees while riding, pursuant to their contracts of employment, to and from their work in conveyances furnished by their employers. Saba v. Pioneer Contracting Co., 103 Conn. 559,131 A. 394, was a case involving injury to an employee while riding to and from his work with the knowledge of the employer of the practice, and his continued acquiescence in it, resulting in affixing to the contract of employment as an incident, the obligation of transporting the employee. See also Donovan'sCase, 217 Mass. 76, 104 N.E. 431; Article by Professor Bohlen, 25 Harvard Law Review, 401 et seq. Under the common law, as we have applied it, the relation existing between the employee and employer under a like transportation was that of master and servant. Pigeon v. Lane, 80 Conn. 237, 67 A. 886.

In all of the cases we have had before us, raising the question whether the transportation was an incident of the employment, the injury to the employee occurred while he was being transported in the conveyance furnished by the employer with his express or implied consent. Our attention is particularly directed by defendants' counsel to the statement in Swanson v.Latham, supra, that "the employment [of Swanson] began when the decedent boarded the automobile at Willimantic," and from this counsel argue that the employment of the plaintiff had not begun when he was injured while crossing the highway for the purpose of boarding the truck upon which the employers furnished plaintiff transportation to his work. Upon the facts in that case the statement was correct, the employment did begin when the employee boarded the automobile. We did not intend by this statement to exclude other conditions which the employer might expressly or impliedly have attached to the employment, and which had their inception prior to the boarding of the automobile. Thus, the employer might designate the place where the automobile was to be boarded; it might be on private property or on a public highway. If the employee went to the designated place within a reasonable time prior to the time when he was to board the automobile, he would, from the time he reached the designated place, be then carrying out the direction of his employer, and that direction would become an incident of the employment and a part of the means of transportation, just as a railway station, or a bus waiting room, is a necessary incident in the transportation of the passengers of the railway or bus line.

Similarly, when an employee is directed to report each morning at a given place, or to a certain person, to receive instruction as to where he is required to work that day, the relation of master and servant has been held to commence at the time he reported, and his employment to have begun at that time, and that the injury thereafter occurring, prior to the time of actually beginning work, was suffered in the course of his employment. Milwaukee v. Althoff, 165 Wis. 68,145 N.W. 238; Milwaukee v. Industrial Commission,185 Wis. 311, 201 N.W. 240. So it has been held that the fact that the injury occurs while the employee was in the act of boarding the train and not while being transported, does not relieve the employer of liability for compensation. Fisher v. Tidewater Building Co.,96 N.J.L. 103, 114 A. 150. Nor does it relieve the employer where the employee is injured when upon his employer's premises and engaged in the preparation necessary for beginning the work of his employment.Terlecki v. Strauss, 85 N.J.L. 454, 89 A. 1023. Other illustrations of the underlying principle of these cases are found in the class of cases represented by:Procaccino v. Horton Sons, 95 Conn. 408,111 A. 594; Merlino v. Connecticut Quarries Co., 93 Conn. 57,104 A. 396; Corvi v. Stiles Reynolds Brick Co.,103 Conn. 449, 130 A. 674; Cudahy Packing Co. v. Parramore, 263 U.S. 418, 423, 44 Sup. Ct. 153, andBountiful Brick Co. v. Giles (U.S.)48 Sup. Ct. Rep. 221, decided February 20th, 1928. "It is clear," said Collins, M. R., "that you cannot look at the moment when he begins his work as the moment when he gets into the employment." Sharp v. Johnson Co., Ltd. (1905) 92 L. T. 675, 7 W. C. C. 28, 30. If the plaintiff had, when he walked from his home to the State road where his employers' truck usually picked him up, remained at this point, and was there injured while waiting for the truck, there could be no doubt that during the period plaintiff was waiting at this point, he was in the course of his employment. His being at this point, upon this finding, would have been an incident of his employment, and a fulfillment of the implied direction of his employers. Under the authorities we have cited, the employee would be held to have been in the course of his employment. But he did not remain in the place where the truck usually picked him up. The truck was late, and in order to keep warm he walked along the road, keeping upon the left-hand side of the road, which would enable him to see and avoid automobiles approaching toward himself. The finding is silent as to how far he had walked before the truck overtook him. Whether he could have recovered compensation from his employers for an injury suffered by him while he was walking upon the highway, we are not called upon to determine. The truck came up with the plaintiff as he was walking and stopped on the right-hand side of the road for the purpose of having him get on the truck. This was an invitation for the plaintiff to board the truck at this time and place, given by the driver of the truck, who was acting in behalf of his own and the plaintiff's employers. It was therefore as effective as if the employers themselves had then ordered the plaintiff to board the truck. The question of the right of the employee to be at this place in the highway in the course of his employment need not be answered, since the employers had waived that right and accepted this particular place in the highway as a proper place for the plaintiff to board the truck. While the plaintiff was crossing the highway in carrying out his employers' invitation or order for the purpose of boarding the truck, he was struck by an automobile and injured. From the moment at least when the truck stopped and plaintiff began his attempt to cross the highway to board it, if not before, his employment began. He was then and thereafter, until struck, where he might reasonably have been, engaged in attempting to reach the truck so that he might board it, and reasonably fulfilling the order of his employers and doing something which was incidental to his employment. Larke v.Hancock Mutual Life Ins. Co., and Whitney v. HazardLead Works, supra. The award of the commissioner should be sustained.

The Superior Court is advised to render its judgment dismissing the appeal from the commissioner.

In this opinion HAINES and HINMAN, Js., concurred.