The court is unanimous in its opinion that plaintiff's injury was caused "by accident arising out of and in the course of the employment" under R. L., c. 216, s. 2. We reconsider the question whether plaintiff's dependents are precluded from receiving death benefits under the exclusionary provisions of R. L., c. 216, s. 10 which bar compensation for injury caused in whole or in part by the plaintiff's "violation of law, or serious or wilful misconduct."
In ascertaining the meaning of any statute it is material to consider the circumstances under which the language is used, its legislative and judicial history and the objectives it seeks to attain. "New Hampshire was one of the first (1911) of the American states to adopt a valid workmen's compensation act. Some of its features are unmistakably moulded after the British act of 1906." Mulhall v. Company, 80 N.H. 194, 201 (discussing what are now sections 16 — 19 of the act). In the first case construing section 1 of our act the court noted: "A somewhat similar provision of the English workmen's compensation act of 1897 (60-61 Vict., c. 37) is construed the same way." Boody v. Company, 77 N.H. 208, 212. The decision in Moore v. Hoyt, 80 N.H. 168, 171, involving section 12 of our act stated: "The same conclusion was reached in England, upon a somewhat *Page 444 similar statutory provision." It was the English act "upon which the New Hampshire statute was modelled." Thomson v. Company, 86 N.H. 436, 450. "The only precedent available when the act was passed in 1911 was the English statute" Manock v. Company, 86 N.H. 104, 107 (distinguishing our act which contained no provision for compensation to servants of an independent contractor). It thus appears that the parent English statute was the model for the Legislature and its judicial construction, at least prior to 1911, the guide for this court to the extent that the statutory provisions were the same or substantially similar. Thomson v. Company, supra, 438.
This court has made extensive use of the earlier English workmen's compensation cases in the original construction of our act. In addition to the cases already cited there are further examples: King v. Company,78 N.H. 316, 318; Manning v. Railway, 80 N.H. 404, 409; Fox v. Manchester,88 N.H. 355, 359, 361. Inasmuch as section 3 of the 1911 act (now section 10) had not been construed by this court prior to the revision of the Public Laws or the Revised Laws (P. L., c. 178; R. L., c. 216) and has not been amended since its original enactment, the earlier construction of the English statute becomes pertinent.
The English acts used the phrase "serious and wilful misconduct" as a bar to compensation. Section 10 of our statute used the same words in the disjunctive. Both statutes by their terms indicate that misconduct itself is not a bar to compensation. In the former it must be both serious and wilful while in the latter it may be either. Except for this distinction the words have the same meaning in both statutes. "`Wilful' . . . imports that the misconduct was deliberate, not merely a thoughtless act on the spur of the moment . . . . `Serious' . . . not that the actual consequences were serious, but that the misconduct itself was so." Johnson v. Marshall, Sons Co. Ltd., [1906] A.C. 409, 411, 412. In the former opinion it was decided that the misconduct must be grave and not trivial and that Newell's conduct was neither. It is believed that this view complies with the legislative mandate for statutory construction (R. L., c. 7, s. 2), and was so understood by the framers of the New Hampshire act. "The ordinary meaning of the word `serious' in the English language is — grave . . . . as opposed to trifling and insignificant." Beven, Workmen's Compensation, 4th ed. (1909), 398.
Stated in over simplified terms the effect of defendant's argument is that plaintiff was hired to work and not to fight and that this was wilful misconduct precluding recovery under the statute. While this *Page 445 argument has an appealing quality to it, it has not been followed in analagous cases and it proves too much. Employees are also hired to work and not to scuffle, commit batteries or engage in horseplay (Maltais v. Company, 93 N.H. 237), nor to depart from the work routine to make a personal purchase of tobacco (Whitham v. Gellis, 91 N.H. 226), nor to make other departures from the hired work. Gallienne v. Company, 88 N.H. 375. Yet, in all these cited cases compensation or recovery was allowed because it was such conduct of employees as could be reasonably expected and therefore was adjudged incidental to the employment. The inevitable result of associating men together in work is the same stress and strain that affect human mortals generally. Arguments, horseplay and some deviation from the planned schedule are bound to occur: they are compensable (and not necessarily considered wilful) when related to the work. That an assault may arise from an argument, is to be expected as much as that a battery will occur from horseplay. There is no logical reason for recovery in one case and denial in the other so long as the injury or death is the result of the employment as stated in Guay v. Company, 83 N.H. 392, 395, and followed in Bernier v. Mills, 93 N.H. 165, 167. In the words of the Maltais case, such conduct is "`part and parcel of the working environment'. . . and therefore one of the perils of the service." (p. 241).
Arguments, altercations and assaults are as inevitable as they are undesirable. Where they arise out of the employment, they may be properly regarded as an employment hazard. Such actions are misconduct but are not serious misconduct unless of a grave and aggravated character. Such actions are not wilful misconduct unless deliberate or premeditated. Upon the facts in this case a work-induced, simple assault or battery by a small foreman in hot blood upon a large recalcitrant subordinate was part and parcel of the rough and ready working environment of a truck driver and his boss which is neither wilful nor serious misconduct under R. L., c. 216, s. 10.
"Violation of law" appears in section 10 after the word "intoxication" and before the phrase "or serious or wilful misconduct." Under a well established principle of statutory construction each of these three defenses to compensation must be construed with reference to each other. State v. N.H. Gas Electric Co., 86 N.H. 16, 25; Davis v. Company,88 N.H. 204, 210; Keene v. School District, 89 N.H. 477, 481. A strict construction of "violation of law" would include any and every violation of law. Truck drivers exceeding the speed limit by one mile per hour would be deprived *Page 446 of compensation benefits if injured during such periods. This is not reasonable nor is it the law. Day v. Gold Star Dairy, 307 Mich. 383. If a literal construction of a statute does violence to the apparent policy of the Legislature, it will be rejected. See, Davis v. Company, supra, where a literal meaning was not given to the word "workmen" and compensation denied in accordance with the object of the act as a whole. The Legislature used the phrase "violation of law" to include violations involving intoxication or misconduct that was either. serious or wilful. Newell's actions were not such a violation of law.
We must constantly remember that in this case we are construing a compensation statute. "Since the employer may be in no way to blame or have anything to do with the injury, the liability to compensate for it is in no usual sense tortious in character." Holland v. Company, 83 N.H. 482, 484. We should not insert the conception of contributory fault which the compensation statute discarded and which is not a bar under section 10. Maltais case, supra, 242. We prefer liberal construction of the statute consistent with its history and general policy rather than a strict and literal interpretation based on the tort law of master and servant.
Former result affirmed.
BLANDIN, J., dissented: the others concurred.
Nov. 4, 1947.