Merlino v. Connecticut Quarries Co. , 93 Conn. 57 ( 1918 )

The injury arose out of the employment, at a place within the danger zone created by the business of the employer. That being so, the only question remaining is whether it was fairly consistent with the performance of the contract of employment that Merlino should be at or about the place at or about that time. In Mann v. Glastonbury Knitting Co.,90 Conn. 116, 96 A. 368, we pointed out that where an injury arising from a risk of the business is suffered while the employee, though not doing the work for which he was employed, is still doing something which the employer has expressly or tacitly consented that his employees might do, incidentally to their employment, at that time and place, the injured employee is within the scope of his employment.

That rule is applicable to this case, and it leads to the inquiry whether the defendant had consented that its employees, on quitting work, might stop at the commissary, and so remain within the danger zone created by the business, for the space of ten minutes after the quitting whistle blew.

While there is no explicit finding on this precise point, it is a necessary inference from the findings that the employer had so consented. Thus it is found that the advantage which the employer derived from the commissary was that it supplied the wants of its employees at a point convenient to their work and their homes; and that the commissary and the cellar under the commissary and the west side of the commissary afforded shelter from flying rock. It is also found that at the sound of the warning whistle, it was the duty of employees who were not out of range to seek shelter, and general instructions had been issued to that effect. There is no finding which indicates that the commissary was not customarily open for business at quitting time.

The necessary inference from this state of the record is that employees were expected to patronize the commissary in going from their work, and that the resultant probability of their presence near the commissary while blasting was going on was recognized, and to some extent provided for, by the rule about taking shelter.

Merlino's failure to obey this rule was a careless and perhaps a negligent omission, but it was not such serious and wilful misconduct as amounts to a defense under the Workmen's Compensation Act.

The Superior Court based its judgment, vacating the award, upon the proposition that because the employer had given the men ample time to leave the danger zone after stopping work, it was absolved from liability for injury to one who unhindered by any agency beyond his own control — remained on the premises beyond the time allowed him to depart. This is another way of stating the fundamental rule that the employer's liability under the Act is coextensive with and limited by the contract of employment, but, as applied to this case, it fails to take sufficient note of the fact, pointed out in Mann v.Glastonbury Knitting Co., 90 Conn. 116, 86 A. 368, that the contract of employment includes all incidental terms which may have become annexed to it by the consent of the employer.

In this case the employer co-operated in the maintenance of a commissary kept open at quitting time within the danger zone created by its business, and in effect it invited its employees to stop there on their way home. Under these circumstances it cannot fairly be denied, that one who met his death because he was thus induced to linger a few minutes within the danger zone, was fairly within an agreed incidental term of his contract of employment.

There is error and the cause is remanded with direction to set aside the judgment vacating the award, and to enter judgment affirming the award of the Commissioner.

In this opinion the other judges concurred.