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(278 Pa. 552, 123 Atl. 505.) their quarters, so that all contact while engaged about the wharf, an with outsiders would be avoided." injury occurred.

The carrying of the employee to It is a fair inference from the eviand from work, indirectly of benefit dence to conclude that the presence to the master, may be within “the of Malky was in furtherance of the course of employment" while the needs of the master, who was entransportation continues, as hereto- abled by the segregation of the men fore noticed. Knorr v. Central R. to secure help for the actual mining, Co. supra.

With like reason, it which continued from 7 until 4. should be held that the occupancy That the company believed this necof a house on the premises, under essary is clearly indicated by its acthe peculiar circumstances appear- tion in furnishing sleeping quarters,

ing here, provided the required provisions, and the killing of em- so that he might service of a watchman to prevent working hours be on hand during the approach of those from the outright to compensation. working hours, was

side. It was for the employer's inof advantage to the

terest the arrangement was effected, employer, and, when injury curred thereon, the loss should be

so that the digging and removal of compensable. In Lawton v. Dia

the coal could be made possible, and mond Coal & Coke Co. 272 Pa. 74,

the Compensation Board was justi115 Atl. 886, an award was made

fied in so holding. The injury ocunder a similar state of facts, with

curred on the premises, where, in out discussion of the point here in

view of the attending circumstances, volved. There, the claimant was the presence of the employee was superintendent of a landing, and required, and brings the claim withlived with his family in a house boat in the scope of the act. attached. After regular hours, but The judgment is affirmed.

ANNOTATION.

Workmen's compensation: injury as a result of labor trouble. This annotation supplements an an- arose “out of the employment,” so notation on the same question in 13 the only question there presented was A.L.R. 549.

whether the injury was received in Generally, as to whether an injury the course of the employment. from an assault arises out of or in In Lampert v. Siemons (1923) 235 the course of the employment with- N. Y. 311, 139 N. E. 278, an injury in the meaning of the workmen's to the head of a department of a compensation acts, see annotations in concern the employers of which, with 15 A.L.R. 589; 21 A.L.R. 760; and the exception of the heads of the de29 A.L.R. 437.

partments, were on a strike, was held It will be noted that the act under not to have been received in the which the reported case (MALKY v. course of his employment, where he KISKIMINETAS VALLEY COAL Co. ante, was assaulted by strikers while on 1082) was decided, although requir- his way to work in the morning, aling that the injury shall have been though the employer had on previous received in the course of the employ days, at the request of the injured ment, does not insist that it shall have workman, had another official of the arisen out of the employment (see concern accompany him to and from Callihan v. Montgomery (1922) 272 work as a protection against injury Pa. 56, 115 Atl. 889), differing in from striking workmen. This decithis regard from the more common sion reversed the holding of the apform of the workmen's compensation pellate division in (1922) 203 App. acts. And in Lampert v. Siemons Div. 264, 197 N. Y. Supp. 25, that, (N. Y.) infra, it was conceded that an since the scope of employment durinjury from an assault by a striker ing a strike is to be deemed to in

an

clude the zone of special danger The statute says that an employee necessarily or properly traveled by the must be injured while in the course workman to carry on the relationship of his employment.

In this case of employer and employee objection- Lampert's employment ceased when he able to the strikers, the assault was left the factory." an accidental injury arising out of The reported case (MALKY V. Kisand in the course of the employment. KIMINETAS VALLEY COAL Co. ante, In reaching its conclusion the court 1082), adopting the interpretation of appeals said: "The application by

earlier case, not within of the rule which has been made by the scope of the present annotation the court below would carry us very (Callihan v. Montgomery (1922) 272 far afield. If, under ordinary circum- Pa. 56, 115 Atl. 889), of the provision stances and within the authorities of the act defining the term “injury first above cited (referring to author- in the course of the employment" as ities holding that an injury received broad enough to include every injury going from work is not within the received on the employer's premises Workmen's Compensation Act], Lam- during the hours of employment, so pert was not carrying on any work long as the nature of the employment for which he was employed while go- demands the employee's presence, ing home or coming to the factory, holds that as the hours of employment what was there in the strike which may extend beyond the time for which could possibly change this fact? The

wages are paid, the killing of a strike strike could not extend the field of breaker in a bunk house on mining his employment or the limits of his

property, by a bomb thrown by a occupation unless he were employed to striker may be found to be durdo something in connection with the ing the hours of employment, and so strike, which, of course, is not this in the course of the employment case. That he was in danger on the within the Compensation Act, alstreets because of the strike is be

though it was during the night after yond question, but the danger existed

the day's work had ceased, if because at all times, and not necessarily while of the strike and the influence Lampert was going to and from his exerted by the strikers it was necwork. He could have been assaulted by

essary to keep the employee in the a striker on the streets while he was bunk house after working hours in going from his home to do an errand, order to keep him employed. It will or while going to the theater, or to a

be observed, however, that in the New dance or other place of amusement.

York case the injury was not, as in If the limits of his employment can be

the Pennsylvania case, received while extended under such circumstances

the employee was on the employer's to cover the distance between his

premises. home and the factory, why cannot

Vosnak v. Kiskiminetas Valley Coal those limits also be extended to reach

Co. (1924) 278 Pa. 557, 123 Atl. 507, any place and any activity in which

and Rydzeski v. Kiskiminetas Valley the workman may be after working hours? The danger may exist in one

Coal Co. (1924) 278 Pa. 558, 123 Atl. place as well as another. The fact

507, involving the same facts and that the employer may have offered

legal questions presented in the reor ordered protection from strikers ported case (MALKY V. KISKIMINETAS to the employee while he was upon

VALLEY COAL Co. ante, 1082) were the street, and after the hours of his

determined in a like manner, and on work, would not or could not change the authority of, that case, without the nature of his work or the time further discussion of the principles of its commencement and completion. involved.

G. S. G.

(98 Conn. 501, 120 Atl. 307.)

ANSONIA FOUNDRY COMPANY

V.
BETHLEHEM STEEL COMPANY, Appt.

Connecticut Supreme Court of Errors

March 1, 1923.

(98 Conn. 501, 120 Atl. 307.)

New trial — because of allowance of inadequate damages to adversary.

1. A plaintiff is not entitled to a new trial because the damages awarded defendant on his counterclaim were less than he was entitled to.

[See note on this question beginning on page 1091] Appeal - interpretation of finding. dence and the instructions of the

2. A finding for defendant in an ac- court, they should be returned to a tion to recover the price paid for ma- second consideration under proper interial alleged not to have complied

structions. with the contract, in which defendant

Damages counterclaimed for damages for re

contrary to law

breach of contract to purchase. fusal to take a part of the material ordered, must be interpreted as finding

4. Allowance as damages to vendor that the material delivered and ten

of less than the difference between dered complied with the contract, al

contract and resale price upon refusal though the damages awarded were of purchaser to take the goods does less than the seller was entitled to. not render the verdict contrary to law, Trial – returning jury for second

where the evidence indicated that consideration.

there was dirt in the material accepted 3. If the jury allowed damages so and paid for, which reduced its value, grossly inadequate as to show that and that the vendor failed to get the they must have disregarded the evi- best price possible on the resale.

APPEAL by defendant from a judgment of the Superior Court for New Haven County (Haines, J.) setting aside a verdict in its favor in an action brought to recover the price paid for material sold by defendant to plaintiff under a contract alleged not to have been complied with. Reversed. Statement by Beach, J.:

and to this plea the appellant (the Action to recover moneys paid to defendant) demurred. the defendant for merchandise The following facts were undiswhich was alleged not to have com- puted upon the trial: plied with the contract, and which On June 18, 1920, plaintiff and the plaintiff, upon examination, re- defendant entered into a written fused to accept, brought to the su- contract for the purchase and sale perior court in New Haven county, of “about 395 gross tons, more or and tried to the jury before Haines, less, of 3-inch brass fuses," which the J.; verdict for the defendant to party of the first part, the defendrecover $5,421 upon its counter- ant, had on hand at its Tuckahoe claim, which the trial court, upon plant, and further agreed that “the motion of the plaintiff, set aside as composition of these brass fuses against the evidence, and from this cannot be guaranteed by the party decision the defendant appealed. of the first part,” and that “the party

The appellee in this court (the of the second part [the plaintiff] plaintiff) filed a plea in abatemeni, purchases the brass fuses as they alleging that the appeal was insuffi- are.” The party of the second part cient in not stating the time and agrees in the contract "to pay in place of holding the appellate court, cash for these brass fuses, and the

party of the first part agrees to ac- brass fuses within the meaning of cept in payment for these brass the contract, and that it was able, fuses 10 cents per pound f. o. b. cars ready, and willing to make such deTuckahoe, New Jersey, terms of livery, but plaintiff wrongfully repayment to be sight draft with bill fused to receive the goods, and that of lading attached, payment to be defendant thereupon duly resold guaranteed by the People's Bank & them and received therefor $15,295.Trust Company, of New Haven." 70 less than the contract price, and Five carloads of material were incurred expenses in the resale of shipped by the defendant to the $500.73, which were necessary and plaintiff, and the plaintiff paid sight reasonable. The plaintiff did not drafts on plaintiff with bill of lad- contest the fact that defendant did ing attached on account of these have the undelivered goods on hand shipments, aggregating $41,171. similar in character to the goods alThese shipments covered about 42 ready shipped and offered to ship per cent of the 395 tons contracted them to the plaintiff, nor that these for, or 166 tons. Immediately upon goods were sold for a reasonable examination of the five carloads price, nor that the expenses incurred reaching the plaintiff it notified the in the resale were necessary and defendant of its refusal to accept reasonable. The issue upon the evithese goods, and offered to return dence submitted under the complaint them to the defendant, and demand and answer and under the countered the repayment of the $41,171. All claim was whether the goods deof these goods shipped by defendant livered and those undelivered and to plaintiff were unloaded and stored offered to be shipped to the plaintiff by the plaintiff, but never used by were in accordance with the goods it, and it is able, ready, and willing contracted for. to return them to the defendant. By agreement of counsel two The plaintiff was compelled to, and forms of general verdict were subdid, pay the freight upon these mitted to the jury, one finding the goods, demurrage charges, the cost issues for the plaintiff, and the other of unloading, handling, carting, and finding the issues for the defendant, storage of these goods, for which the amount of the damage being amounts plaintiff demanded repay- in each case left blank. The jury ment from defendant.

found the issues for the defendant to The plaintiff claimed to have recover $5,421.87, and the court set proved that the materials shipped aside the verdict upon the plaintiff's were not 3-inch brass fuses called motion. From the action of the for by exhibit A, but were disas- court in setting aside the verdict the sembled loose brass scrap, full of defendant appeals. dirt, and mixed partly with alumi

Messrs. George E. Beers and Wilnum, iron, and other miscellaneous

liam F. Alcorn, for appellant: metals of a character different from The jury are exclusive judges of the that provided for in exhibit A, and facts, and their verdict cannot be disof much less value.” The defendant, turbed if it is one to which twelve on the other hand, offered evidence men, acting fairly and intelligently, to prove that the goods shipped were

and with due respect each for the brass fuses within the meaning of

opinions of the others, might arrive. the contract, and that it had fully

State v. Smith, 49 Conn. 376; Rooney

v. Levinson, 95 Conn. 466, 111 Atl. 794; performed its part of the contract.

Woicicky V. Anderson, 95 Conn. 535, The defendant filed a counterclaim,

111 Atl. 896; Bergh v. Spivakowski, and offered evidence thereunder to

86 Conn. 98, 41 L.R.A.(N.S.) 855, 84 prove that it offered to ship the

Atl. 329; Lewis v. Healy, 73 Conn. balance of the goods not delivered 136, 46 Atl. 869; Johnson v. Norton, under the contract, exhibit A, of the

64 Conn. 134, 29 Atl. 242; State v. same kind and quality as those al- Buxton, 79 Conn. 477, 65 Atl. 957; ready delivered, and that these were Pigeon v. Lane, 80 Conn. 240, 67 Atl. (98 Conn. 501, 120 Atl. 307.) 886, 11 Ann. Cas. 371; Waters v. Bris- plaintiff's refusal to accept and pay tol, 26 Conn. 404; Johnson v. Scribner, for the undelivered balance of the 6 Conn. 185; Atwood v. Ricker, 83 material contracted for. Conn. 171, 76 Atl. 306; Birdseye's Ap

The jury found the issues for the peal, 77 Conn. 623, 60 Atl. 111; Brad- defendant, and assessed the damages bury v. South Norwalk, 80 Conn. 298, 68 Atl. 321; Wyeman v. Deady, 79

at $5,421.87, and the plaintiff's conConn. 414, 118 Am. St. Rep. 152, 65 Atl.

tention that the verdict is against 129, 8 Ann. Cas. 375; Bulkley v. Water

the evidence was and is limited to a man, 13 Conn. 328; Robinson v. Backes, claim that the defendant's damages 91 Conn. 460, 99 Atl. 1057.

-if it was entitled to any-were so The court has authority to reverse definitely liquidated by undisputed the action of the trial court, when it evidence in the sum of $15,796.43 misapplies or mistakes some principle that a defendant's verdict for only of law, or manifestly abuses, a discre

$5,421.87 necessarily shows that the tion. McKone v. Schott, 82 Conn. 70, 72

jury must have found that the deAtl. 570; Scholfield Gear & Pulley Co.

fendant was not entitled to any damv. Scholfield, 71 Conn. 1, 40 Atl. 1046; ages at all; that is, the jury must Stern v. Max Ripps Co. 86 Conn. 289, have found that the material de85 Atl. 543; Steinert v. Whitcomb, 84 livered to and paid for by the plainConn. 262, 79 Atl. 675; Bergh v. Spiva- tiff was not according to contract. kowski, 86 Conn. 98, 41 L.R.A.(N.S.)

The trial court set aside the ver855, 84 Atl. 329.

dict, but its memorandum indicates Mr. Benjamin Slade for appellee.

that it did not do so precisely on the Beach, J., delivered the opinion of ground suggested by the plaintiff. It the court:

agreed that the defendant's damages The only question arising upon had been liquidated in advance in this appeal is whether the trial court

the above-named amount, but pointerred in granting the plaintiff's mo- ed out that the verdict might be untion for a new trial on the ground derstood as establishing either one that the verdict was against the evi- of two alternative propositions: (1) dence. The motion was based on

That the jury found that the masomewhat unusual grounds, which terial delivered to and paid for by may be stated as follows: The main

the plaintiff was not according to issue presented by the pleadings was contract, but nevertheless rendered whether the material delivered to

a verdict for the defendant; (2) and paid for by the plaintiff, to- that the jury found that the magether with that remaining unde- terial so delivered, and the balance livered in the hands of the defend remaining undelivered, was such as ant, was such as the contract, ex- contracted for, but nevertheless hibit A, called for. The determi- found for the defendant in a sum nation of that question was left much less than the defendant was to the jury upon conflicting evi- entitled to recover. And the court dence, and on this record it must be

held that upon either hypothesis the assumed for the purpose of this ap- verdict was against the evidence. In peal that there was evidence upon so holding we think the court was in which the jury might properly have

error. decided either (a) that the material In the first place, it is quite clear delivered and paid for was not ac- that, if either of the alternative cording to contract, in which case propositions stated is to be regarded their verdict should have been for as established by the verdict, it must the plaintiff to recover the amounts be the latter. The verdict finds the paid by it for the five carloads re- issues for the defendant, and it is ceived, or (b) that the material was

not capable of any

Appealaccording to contract, in which case interpretation other construction.

of finding. their verdict should have been for

It must, therefore, the defendant to recover on its stand or fall as a defendant's verdict counterclaim for damages for the for the sum named therein; and

31 A.L.R.-69.

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