Smith v. Seamless Rubber Co. , 111 Conn. 365 ( 1930 )

The plaintiff had for many years been employed in the city of New Haven by the defendant employer, hereinafter called the company. In January, 1928, the city was threatened with an epidemic of smallpox. The board of health recommended that its residents submit themselves to vaccination and very many did so. The company posted a notice in its plant as follows: "We naturally desire to assist the Board of Health in their efforts to prevent a smallpox epidemic in New Haven and vicinity. Therefore, we are arranging so that you may be vaccinated without any charge to yourself at our hospital today and tomorrow. In order to handle this matter without confusion, all those desiring to be vaccinated kindly give their name to the department foreman or clerk, who will make up the list for each department, and he will notify you at what time you are to come down to the factory hospital. We take this opportunity to urge you to give this serious consideration and take advantage of the opportunity offered you." The company employed a physician and two nurses who were present in the factory hospital three or four days vaccinating such employees as presented themselves, and who were also there one Sunday, vaccinating members of the families of employees. The facilities for vaccination were furnished by the company free of charge, but the matter was entirely optional with the individual employee and no penalty was attached to a failure to have it done. The company has a record of seven hundred and forty persons being vaccinated at their plant during this period and this did not include all the vaccinations performed, but not all of its employees were vaccinated. The policy of providing facilities for vaccination at their plants was general at the time in large manufacturing establishments throughout the city. At first the scratch method with a bandage was used at the company's factory, but later the puncture method was adopted. The physicians and nurses used the usual, necessary and proper care. On January 23d 1928, the woman in charge of the department where the plaintiff worked announced that the doctor was present and any who wished could go to be vaccinated, adding that she herself had had it done to set a good example. The plaintiff thereupon presented herself and was vaccinated in the usual manner by the puncture method. As a result of the vaccination she contracted an infection of the blood stream, resulting in incapacity.

The commissioner upon these facts reached the conclusions that, in choosing to be vaccinated, the plaintiff was not fulfilling any duty of her employment or doing any act incidental to it, and that her incapacity was not the result of a risk involved in the employment or incident to it or to the conditions under which it was required to be performed. These conclusions the trial court sustained and the plaintiff has appealed. The only question for our determination is, were the conclusions reached by the commissioner the result of an incorrect application of legal principles or a violation of the plain rules of reason or logic. Wilder v. RussellLibrary Co., 107 Conn. 56, 62, 139 A. 644.

At the time she was undergoing vaccination the plaintiff was not fulfilling any duties of her employment. But that would not of itself defeat her right to compensation. "Finally, the same right to compensation will follow if any injury arising from a risk of the business is suffered while the employee is doing something which, although quite outside of his obligatory duties, is permitted by his employer for their mutual convenience, such as eating his dinner on the premises, or any similar act to the performance of which the employer has consented." Mann v. Glastonbury KnittingCo., 90 Conn. 116, 120, 96 A. 368. On the other hand, we point out in Larke v. Hancock Mutual Life Ins. Co.,90 Conn. 303, 309, 97 A. 30, that "an injury which occurs in the course of the employment will ordinarily arise out of the employment; but not necessarily so, for the injury might occur out of an act or omission for the exclusive benefit of the employee, or of another than the master, while the employee is engaged in the course of his employment." So in Vitas v. Grace HospitalSociety, 107 Conn. 512, 516, 141 A. 649, we say: "If the work of ironing these curtains was something which was done for her exclusive personal benefit, or it was a personal privilege extended to her by her employer and having no direct or incidental relation to her employment, the injury resulting from its exercise would not justify compensation under the Workmen's Compensation Act." And in Ohmen v. Adams Brothers,109 Conn. 378, 385, 146 A. 825, we say: "While the plaintiff was proceeding from his home to vote by the permission of his employers he was serving his own purposes although doing this with his employers' express consent and after his day's pay had begun and could not recover compensation for an injury then suffered."

Where an employer merely permits an employee to perform a particular act, without direction or compulsion of any kind, the purpose and nature of the act becomes of great, often controlling significance in determining whether an injury suffered while performing it is compensable. If the act is one for the benefit of the employer or for the mutual benefit of both an injury arising out of it will usually be compensable; on the other hand, if the act being performed is for the exclusive benefit of the employee so that it is a personal privilege or is one which the employer permits the employee to undertake for the benefit of some other person or for some cause apart from his own interests, an injury arising out of it will not be compensable.

If we turn to the instant case, we are struck by the fact that the commissioner has not found that, in undertaking the vaccination of its employees, the company was seeking to serve its own purposes. Nor do the facts that he has found point to that conclusion so clearly as to make it the only reasonable inference, so that we could draw it as a matter of law. The notice posted by the company stated the purpose to be assistance to the board of health in its effort to prevent an epidemic of smallpox, and we see no reason upon the record to question the good faith or truth of this statement; to thus turn their facilities for reaching a considerable portion of the population of the city to the service of the general good of the community was a laudable purpose and one which should not be discouraged by an imposition of a liability not within the fair scope of the law. That this was the purpose of the company is also indicated by its extension of the opportunity is also indicated by its extension of the opportunity to secure vaccination to the families of employees, and by the fact that the matter was left wholly voluntary with the employees. On the other hand, nothing upon the record indicates the extent of the danger of an epidemic or how far it would be likely to affect the working conditions in the company's factory. We cannot therefore assume as a necessary inference from the situation disclosed by the record that the opportunity given to the employees of the company to secure vaccination was extended to them for its benefit rather than as a personal privilege, or a means of serving the general good of the community. Lacking this fact the conclusions of the commissioner cannot be held to be violative of any rule of law, or unreasonable or illogical. They must therefore stand. This renders it unnecessary to consider other questions suggested by the record bearing upon the right of the plaintiff to recover compensation.

The case before us is very different from Stakonis v.United Advertising Corporation, 110 Conn. 384,148 A. 334. In that case we say (p. 391): "We may well commend whatever benevolent purpose the employer had in instituting this outing as a feature of its business, but we cannot fail to note the distinction between a mere invitation to enjoy the hospitality of the employer, and a direct order to attend with the imposition of penalty for the disobedience of that order. This is the distinction which seems to have been lost sight of in the argument and brief of counsel for the defendant. The cases cited in support of that argument, proceed upon the theory of a gratuity, something quite apart from orders or penalties for failure to comply. In those cases there is no direct relation between the outing or other activity and the employment, and the former cannot reasonably be held to be an incident of the latter." Nor is this case analogous to that ofMascika v. Connecticut Tool Engineering Co.,109 Conn. 473, 147 A. 11, for in that case the injured employee was not engaged in doing anything for his own benefit or that of any third party, but, having arrived at his place of employment in advance of the time when work was to begin, he was simply awaiting the coming of that time in the yard of the employer under conditions for which the employer was responsible.

There is no error.