Norwich bulletin., 1918-06-19

\ merican Woolen company of Moo sup by whom Asselin was employed, admitted the claim that fhe fatal ifl- juries to the man were received in the course of his employment, but eontended that they did not arise out of his employment and they also claimed that Asselin was guilty of wilful and serious misconduct,
 Asselin was fatally isjured on the afternoon of Jan. S1, 1913, when he was struck by an engine either while crossing the railroad tracks near his home or walking along the banks and taking a bank to go to his home to at the mill. He was about eS years old and been in the employ of the company for many years as a gen. eral laborer.1
 Commissioner Donohue finds in fa-- vor of the dependent widow as the claimant and rules that she is enti- tied to compensation, which is ordered to be paid in lump sum for 312 weeks at the rate of S7.44 per week, with medical bills and S169 for fu- neral expenses.
 Memorandum Of Decision. In his memorandum of decision which discusses the important legal points involved, Commissioner Don- cflue supports his rulings by nunaer- ous references to precedents and says in part as follows:
 The two points up for consideration in this case are: 1st. did the injury
 arise out of the employment; and, and willful misconduct.
 As to the first question. if is ad- ! mitted by the respondents that the 1 injury arose in the course of employ
 ment. The evidence shows that when the employe met his death it occurred at a time when he was engaged ill a work which was to result to the inter est of the employer. He was engaged 1 in doing something which he was 1 frequently in the habit of doing; that i Is, he was going home to procure a tool with which he felt he could do better work or which he felt he could 1 use more handily than similar tool furnished by the employer. His ern- ployer acquiesced in this matter on l this occasion and had in the past. and 1 it was a well known fact to his en-
 pieyer that he had used his own tools 1 before and was in the habit of using i them and of going home for them when needed. and no objection had 1 been made to his using them and the ! respondents admitted they had no 1 reason to object to his using his own tools if he preferred. On this occa- 1 sion he had been told to get his axe ! to sharpen for use the next day, and
 it was known to the employer that
 his axe would be probably at his own l home, and whether he was told to go i home for his axe or simply to get his axe is iinmaterial. and the boss far
 rlef who had told him to get his axe admitted that he expected when he gave this order that the empioye would prefer to use his own axe and
 that he would go home for it. What l the decedent did on this special occa-
 sion was that he had been in the 1 habit of doing during his entire em- ployment with the company and which 1 they had knowledge of, and his entire l course of procedure on this occasion was what they could have expected 1 him to do and what they actually did lleypeet him to do as is shown by the 1 testimony of the witness for the re- 1 spondents.
 In Hours of Employment.
 The fatal accident occurred during and expected to be in the employ of the respondent company. and he was
 on pay during those hours. The route which he took to get his axe was
 shorter, and if any advantage was tc accrue to anybody it was to accrue
 to the employer by his taking this
 shorter way home, even though it was admittedly dangerous. and he does |. not appear to have been a man who
 ever went home during his working
 hours for any purpose other than thai
 of doing something for his employers interest,
 He was ordered at this particular time to procure an axe. and as one oi
 the witnesses said in the first par
 of his testimony. Ito go home and ge
 f< axe.' I believe that that WAS wha was actually told him and that va,
 what was really expected of him. tt so home and get his axe semethin; which had been gning on during hi,
 entire employment with the respond
 ent company.
 In view of the foregoing eircum
 stances and the orders given him, an(
 also in view of the fact that on thi occasion he had proceeded as he ha,
 at nu1nberIess other times with tn company's full knowledge of just hoy he proceeded, I cannot consider tha the decedent's injury was received il
 any other way than that of afisin;
 both out of and in the course of hi
 employment.
 . So far as the injury arising out 0 the employment is concerned, 1t i
 clearly evident that it did so arise fo
 the decedent at the time he met hi
 death was doing something which h
 was employed to do at the time [ namely, he was procuring a tool whic 5 he had been told to do by his fore f man, and was doing it during tn ? hours of his regular employment an I fer his employers interest. and ther : was a connection between the condi l tiens under which the work was t r be performed and the resulting in i jury. Tn the present case the dece
 dents home was nearer to his plac : of employment probably than was tn a case with any other employees for tn ;. same respondent, and the testimony C the witnesses for the respondent clearly shows that the respondent ha erence for his own tools, of the fac [ that he often went horne for them an }. that he continually went by the short . CT route. the railroad track, and al :, though he had been cautioned and ad < yised not to proceed by that rout' :, no established rule is found to hay = existed or been enforced by the eul y ployer, and no enaploye had been pen < alized for walking the tracks. As to Misconduct.
 Tn deciding the two questions in dis = rute in the present case, that is th s question of the injury arising out ( | the employment and the question { { whether the deceGlent was guilty { 4 serious and willfui misconduct to certain extent they must be treate q hseparately as they are two distint claims made by the respondents; { s the same time in treating the secon q question of serious and willfuI mis % conduct it must necessarily be COT S sidered in connection more CT lei q with the first question and not CT T firAI.r irderas,dArflV of if In fn ia