Newell v. Moreau , 94 N.H. 439 ( 1947 )

Upon reconsideration, I have no hesitation in joining with the majority in reaffirmance of the view that the decedent's misconduct was not "wilful misconduct" within the meaning of the statute. R. L., c. 216, s. 10. Nor do I entertain doubts that not every causal violation of law was intended by the Legislature to be a bar. Rather it seems plain that only such violations as should descend to the level of "serious or wilful misconduct" were intended.

Whether the decedent's misconduct could be found to have been "serious" is a question. not free from difficulty. Yet I am moved to concur in affirmance of the former result by the opinion that the evidence fails to warrant such a finding. There was misconduct, because there was a violation of law. As misconduct, it was censurable, but not therefore "serious." If the phrase "serious misconduct" be taken in its ordinary meaning, the record does not portray misconduct more "grave" or "aggravated" than what might be termed ordinary, or even expectable, misconduct. See, Horovitz, Assaults and Horseplay, 41 Ill. Law Rev. 329, 337. Nor does it appear to me to fall within the class of misconduct described by Beven as that "which, if contemplated by a reasonably prudent man in the position in all respects of the wrong-doer would suggest as a probable consequence injury to life and limb" (Beven, Workmen's Compensation, 4th ed., 401); or, to employ the somewhat comparable standard of the Connecticut decisions, to be open to classification as "misconduct which exposed the deceased to serious injury" (Gonier v. Chase Companies, Inc., 97 Conn. 46, 55) and which he appreciated so exposed him at the time of the injury. Mancini v. Scovill Mfg. Co.,98 Conn. 591, 597.

The decedent's misconduct did not proceed beyond a threat to use bare hands upon a contumacious subordinate. As a violation of law, it was not within the category of aggravated assaults, and was punishable at most as a misdemeanor by negligible fine, or imprisonment for a maximum of ninety days. R. L., c. 455, s. 22. Such misconduct is not reasonably to be classed as "serious" within the meaning of our compensation statute.

While the purport of the Trial Court's findings is far from clear in view of the use of the symbol "and/or" coupled with the disjunctive (see, In re Bell, 19 Cal., 2d, 488; Cronin v. Crooks, 143 N.Y. 352), it is plain that section 10 in some one of its aspects was deemed applicable. The former conclusion of this court that the decedent's misconduct cannot be found to come within the meaning of any of the phrases employed in that section appears to me to apply accepted conceptions, with as much accuracy as may be, in the circumstances. For the reasons indicated, I join in affirmance of the former result.