dtbe «tummonmealtb of wassacbusm z

DEPARTMENT OF INDUSTRIAL ACCIDENTS

B U LL E T IN N o . 2 2

REPORT OF CASES

UND E R THE

WORKMEN’

S COMPENSATION ACT

DE TERMINED ON APPEAL

B Y THE

SU P R E M E JU D I C IA L C OU RT

JAN . 1,1921 , TO D E C . 31

,1921 , INCLUSIVE

BOSTON

WRIGHT POTTER PRINTING CC .,STATE PRINTERS

32 DERNE STRE E T

1921

PUB LICATION o r Ta ts D OCUMENT

u pnovm ) a t m

SUPE RVISOR o r ADMINISTRATION .

DEC 1 2 1925

Al tin ovitch’

s Ca se

Bell ’s CaseBra ley’s CaseCapo ne ’s CaseChisho lm ’

s Cas e

Devine ’s CaseDo rm an

’

s Case

Do u gherty’

s Case

Friz zi’S Case

Glenn on ’s Case

Go lden ’s Case

Jaku tis’Cas e

Lapon ’s Case

Latter’

s Case

Le on e’

s Case

McMahon’s Ca se

O’D onn ell

’s Ca se

Ro u rke ’s Case

Sc io la’s Ca se

Stafiord’

s Case

Wa lkden’s Ca se

CON TE N TS.

PAG E

dtbe fi cmmonmealtb of wassacbusetw

BULLE TIN No . 22 .

The repo rts o f case s pu b lished here in comprise all the Supreme Ju d icial Co u rt de cisio n s u nder the Wo rkmen ’s Compensa tio n Act since the pu b licatio n o f Bu lletin No . 21 .

The se d ecisio n s , with tho se pu b lished in Bu lle tin s No s . 7 , 8,

10, 1 1 , 12, 15, 16 , 17, 18, 19 , 20 a nd 21 , b ring the case sd ecid ed o n appe a l up to D e c . 31 , 1921 .

As case s are d e termin ed o n appeal by the co u rt new b u lle tin swill b e pu b lished .

INDUSTRIAL ACCIDE NT BOARD,

WILLIAM W . KENNARD , Cha irma n .

DAVID T. DICKINSON .

JOSEPH A . PARKS .

FRANK J . DONAHUE .

CHESTER E . GLEASON .

JOHN H . COGSWE LL .

ROBERT E . GRANDFIELD , Sec reta ry .

REPORT OF CASES UNDER THE WORKMEN’

S

COMPENSATION ACT.

CASE NO . 7400. (236 Mass .

Mrs . ANASTASIA MCMAHON, MOTHE R AND ALLEGED DEPENDE NT OF CHARLES MCMAHON (DECEASE D), Employee .

D . L. PAGE COMPANY, Employer.

LIBERTY MUTUAL INSURANCE COMPANY, Insu rer.

ARISING OUT OF E MPLOYME NT .

Whe re , takin g a ll the fa cts an d circum stan ce s Show n by the eviden ce , an d drawin geve ry rea so n able in fe ren ce there from , in the cas e o f an em ployee w ho w as fo rbidde n to u se the e leva to r an d w ho w a s fo und de ad a t the bo ttom o f the Sha ft ,it is n o t disclo sed in wha t m a n n e r o r from wha t cause the do o rs leadin g in tothe e leva to r Sha ft be cam e Open , n o sa tisfa cto ry explan a tio n is given fo r thelo ca tio n o f the e leva to r a t the to p o f the sha ft , an d it cann o t b e proved wha tthe em ployee w as do in g a t the tim e , the cla im a n t ’ s case is n o t established an d

the caus e o f the fa ta lity is le ft to pure co n je cture . Savage ’ s Cas e , 222 Mas s .

205 ; San de rso n ’

s Cas e , 224 Ma ss . 558 ; D ube ’

s Cas e , 226 Mas s . 59 1 . The

fa cts in thi s cas e distin guish it cle a rly from Vo n E tte’

s Cas e , 223 Mass . 56 .

CONJE CTURE .

If the re is a ny eviden ce o r if it c an b e ra tio n al ly in ferred tha t the em ployee fe ll in tothe e leva to r we ll while in the co urse o f his em ploym en t , e ithe r be cause thedo o rs were o pen o r he a cciden ta lly fe ll aga in st them an d pushed them o pen ,

then the fin din g o f the Industria l Accide n t Bo a rd m ust stan d ; but if the re isn o eviden ce to suppo rt the findin g o f the Bo a rd , o r if o n the who le evide n cean d drawin g eve ry re aso n able in feren ce it c a n o n ly b e co n je ctured in wha tm a n n e r an d from wha t cause he m e t his de a th , so tha t the m in d is le ft insuspen se a n d do ubt , an d where o n e co n clusio n is as ra tio n a l as the o ther , thenthe ca use o f de a th is m a tt e r o f m ere Spe cula tio n , an d it has n o t bee n Showntha t the in jury a ro se o u t o f an d in the co urse o f his em ploym en t .

REPORT OF MEMBER OF INDUSTRIAL ACCIDENT BOARD .

The m emb e r o f the Ind u strial Accid ent Bo ard appo intedu nd er the pro visio n s o f Part III , se ctio n s 5 and 7, chapter751 , Acts o f 191 1 , a nd am endmen ts thereto , having heard thepartie s in the ab ove case at Lowe ll , Mass . , o n E i day , Oct .25, 1918, at 1 1 A .M. , repo rts as fo llowsAppearan ce s : John W. Cro n in , E sq . , fo r in su rer ; Me ssrs .

Qu a , Howard Ro gers (Stan ley E . Qu a , E sq . , o f cou n sel)fo r depend en t .

8

Qu estion s : ( 1) Whether or n o t the employee ’s death was

d u e to a person al in ju ry arising o u t of a nd in the cou rse of hisemploym en t ; (2) average weekly wages ; (3) dependency.

Report of the E vide n c e .

All the m aterial eviden ce , in clu d in g the attached papers , isreported herewith.

Mary We izenb aker, called by the claimant , te stified that shehad been employed by the Page Re stau rant Company for fivemo nths as salad wom an , a nd , as su ch, whe n ord ers came infrom the d in ing room , she prepared sa lad s a nd sandwiches .She d id her work a t a tab le which is lo ca ted at o ne end of thekitchen , abou t 6 or 7 feet from the e levator . The elevator, afre ight elevator, u sed for carryin g fre ight , is in o ne c o rn er ofthe kitchen . This e leva tor ha s two heavy d o o rs which opena nd shu t , o ne up and o ne d own , fasten ing in the midd le, to

gu a rd the shaft when the e leva to r is not at that floo r. The

kitchen is lo cated o n the seco nd floo r o f the b u ild ing . Witnessstated that a little after 6 o ’clo ck o n the even ing o f the accid en t , Sept . 9, 1918, the McMahon b o y was standing in the

co rn er of the kitchen , a s she o b served , n ear the e levato r, whileshe was wo rking at her tab le in the kitchen , as the d in ingro om was open a nd o rd ers were coming in a nd they were veryb u sy . The b oy was sta nd ing, fa cing the kitchen ,

with his

back to an iron ta b le , u pon which the c an go od s a re kept,which sta nd s b etween the eleva to r a nd fo od clo set . In her

Opin io n the b oy was stand ing ab o u t 1 foot from the elevator,lo oking toward the kitchen . The employee was n o t doinga nything at all . She co u ld n o t say how lo ng the employeehad b een stand ing there . She le ft her wo rk a t the salad tab lean d wen t to a sink, where they wa sh the d ishes, near the range ,abou t halfway acro ss the kitchen . She cou ld n o t say whatshe wen t to the sink fo r, b u t wen t there for something, and

came right b ack and heard the employee holler and the doorwas shu t . It took her b etween seven and ten minu tes to goto the sink and get back again . Witne ss later testified thatshe wen t as far as the sink a nd c ame back again ; that it on lytook her as long as it wo u ld take to go to the sink and comeback again . Q .

“D id yo u stop and talk ? A . I went for

9

some thing to wash o r somethin g I cou ldn ’t te ll yo u what itwas .” She was o n her w ay b a ck to the tab le when she heardthe cry, and had go tten as far as the co rner o f the table . She

heard a c ry and n o tified the che f . When she heard the cry she

wen t toward the e levator a nd the doo rs were shu t ; she d id

n o t notice whether o r n o t they were shu t tight, b u t they wereshu t . She d id n o t know whether the d o ors o f the e leva to rwere open o r shu t when she went to the sink . The employeewa s a b u s boy , and his d u ty wa s to bring the d ishes from the

d in ing ro om to the kitchen . Witne ss sta ted that there wa s a n

iro n sink back o f her salad tab le , n ea r the e levato r d o o r in thekitchen , a nd tha t this iro n sink wa s n ext to the fo o d clo set .

This iro n sink is a b o u t 6 o r 7 fee t from the e levato r, and nea r

this sink is kept a la rge tu b , a b o u t the size o f a metal a shba rre l o r c a n , which is u sed as a recepta cle fo r re fu se . Whenthe ic e is taken from the wa ter ta nks the ic e is pu t in the

sink n ear the e leva to r. There is a light over the sink in whichthe ic e , e tc . , taken from the wa ter ta nks is pla ced . This lightover the sink was no t lighted when the b oy fe ll . When the

light over the sink is n o t lighted , it is very dark in the co rn ern e a r the e leva to r o n e c an hard ly see . If the light is no t

lighted o ver the sink , o ne ca nn o t te ll read ily whether o r n o t the

d o o r Of the e levato r is open o r shu t , u n le ss the d o o rs a re wid eopen . If the d o o rs are Ope n ju st a little o ne cann o t te ll .When she went from the salad tab le to the sink a nd b a ck aga inshe d id no t think she was go n e mo re tha n a m in u te o r tw o .

Qu estion ed by the Comm issio n er as to what she u nd erstoodby a m inu te , witne ss replied ab o u t five o r six min u tes .

Witn ess here te stified tha t she d id n o t rememb er what she

went to the sink fo r, b u t that she went as far as the sink and

back again and heard the b oy c ry , and she b ecame so excitedtha t she d id n o t rememb er anything. Q .

“ Is this tru e, that

yo u were away from you r tab le o n ly the length o f time thatit to ok yo u to go to the center o f the ro om and get somethingand come b ack again , is that so ? A .

“Ye s . Q .

“Wha tever length of tim e tha t was, that w a s the time yo u wereaway ? ” A .

“Ye s . Q .

“And that was the time that

elapsed b etween yo u r see ing the b oy stand ing n ear the co rnerand yo u hearing this c ry ?

” A .

“Yes.”

10

Cross-examined (by cou n sel for in su rer), witness testifiedthat she d id no t remember how mu ch tim e she spent at thesink . The doors of the elevator closed , o ne down from the

top and the other up from the b ottom , so that they meet inthe midd le. The doors are either a ll the way open or all theway shu t . On e cannot leave the door half open becau se itwo u ld close itself. When she said that o ne cou ld n o t tellwhether the d oors of the elevato r were closed or ju st Opened alittle, she meant by that open ed a little crack, where the doorscome to gether. One co u ld tell if the doors were wid e ope n ,

and wo u ld have n o d ifficu lty in so doing . The d o o rs lock on

the in side of the e leva to r . The doors are never open u nlessthey b ring good s to the kitchen , and that is whe n the elevato ris a t that flo o r . When the elevato r is no t at that floor thed o o rs are always Closed . There is no t a regu lar m an to ru n thee leva to r after 6 o ’clo ck the regu lar m a n works from 7 in the

mo rn ing u n til 6 at n ight . The McMaho n boy had only b eenwo rking a t the re stau ran t a little while a t the time Of the

a ccid ent . It was his d u ty to carry so iled d ishes from the

d in ing ro om to the kitchen . He w a s a bu s b oy .

At this po in t in su rer intro du ced a plan showing the lo ca tio no f the a ccid ent .Using this plan , witne ss sta ted tha t the employee w a s in a

co rner where o n e co u ld se e him o n ly if they were n ea r the

sa lad tab le ; tha t the fo od che st shu t o ff the View o f the b o y

from the rest o f the room . The tab le u po n which the employe eis su ppo sed to pu t the d ishe s is to the right Of the d in ing-ro omd o o r, and the sink to which she went is the other sid e o f the

table , very n ear the fo od chest . She co u ld n o t say how lo ngthe employee had b een sta nd ing there b e fo re she wen t to the

sink . She had seen the employee sta nd ing ab o u t ten o r fifteenmin u tes , o ver in the co rn er n ear the e levato r . The employee ,while stand ing, was n o t d o ing a nything . She (witness) w a s

m aking salad s . There w a s no o n e in that end o f the ro om ,

with the exceptio n Of herse lf, at that time . When the employeebro u ght the d ishe s from the d in ing ro om he wou ld “

d ump ”

them o n the tab le to the right o f the d o or, and then take histray in and get some mo re d ishe s .Und er re-d irect examin a tio n witne ss te stified that when she

1 1

said the boy had been stand ing in the ro om fo r ten or fifte enmin u tes she was ju st gu e ssing, as she did no t remember howlong he had be en sta nd ing there . She thinks the employeewas sta nd ing there five min u tes , b u t tha t he might have beenstand ing there lo nger ; she co u ld n o t say the exact tim e . The

b oy had been wo rking In the d in ing ro om and kitchen thatn ight .Qu estio n ed by the Commissio n er, witn e ss te stified that the

e levato r man w a s there that n ight ; that he w a s there be fo reshe saw the b oy .

Thomas A . McNam ee o f 94 White Stree t, Lowe ll , c alled bythe claiman t, te stified he w a s n o t n ow employed by the D . L .

Page Compa ny, b u t that he was n ow employed in the po licefo rce at the Ca rtridge shop . He w a s , however, in the employof the Page Company up to a we ek and a half ago . At thetime the McMaho n b oy was killed he w a s head waiter in the

d in ing ro om , a nd had charge o f the b u s boys , in clu d ing theMcMaho n b oy . The b oy had been employed by the companyabo u t a week and a half, o r po ssib ly two weeks, at the time Of

the a ccid ent ; he d id no t think he had b een emplo yed any

lo nger. The b oy ’s wo rk w a s to carry the u sed d ishes from the

d in in g ro om into the kitchen , and a lso any wo rk which had tob e d on e aro u nd the d in ing ro om , su ch as he w a s d o ing a t the

time o f the accid ent , filling ic e tanks o n the sid eb o ard , a nd

any kind Of wo rk tha t he w a s ca lled o n to d o aro u nd the

d in ing ro om . He (witn e ss) to ld the employee what to d o .

The employee to ok his o rd ers from him . The employee ’ swage s were to b e $5 a week together with his b o a rd . He

te lepho n ed the employee ’ s mo ther when he hired him , a nd he

to ld her what the employee ’s wage s were to b e . The emplo yeewas wo rking o n the n ight o f the accid en t . On the day Of the

accid ent another b u s b oy had filled o ne co o ler with sa lted ic e ;this w a s d iscovered a fter he (witness) cam e back in the a ftern o o n , abo u t 5 o

’clo ck, and fo u nd that n o wa ter wo u ld comefrom the co o ler . There is a co il o f pipe in the coo ler, a nd thesalted ic e fro ze the pipe . There were tw o coo lers in the d in ingroom , o ne each sid e Of the sid eb o ard . Three co o lers were u sedfor co ntain ing the drinking water . The ic e se ts o n the coil o fpipes . At first he was bu sy getting ' ready fo r the su pper

12

trade , and when he had time he investigated a nd fou nd salt inthe ice . He immed iate ly shu t the water Off, and ab ou t 6O’clo ck to ld the McMaho n b oy to clean o u t the cooler or tank .

He saw Cha rlie take the ice o u t o f the tank and throw someho t water o n the pipes to thaw them o u t . He left the employeed o ing the wo rk , and went to seat the people as they entered thed in ing ro om . At he we nt b a ck a nd fou nd the b oy stillclean ing o u t the ta nk, and to ld him that he need no t fill thetank with Clea n ic e , a s they had ano ther ta nk o n the o thersid e o f the sid ebo ard , a nd he thou ght that that wo u ld su fficefo r the even ing . When he saw the employee the se co nd tim e ,

at the b oy had the ta nk pretty we ll cleaned o u t , and w a s

throwing some ho t water o n the co il Of the pipes, a nd wasd o ing what he had to ld him to d o . The b oy had all the ic eo u t o f the tank . The co il had to b e taken o u t , a nd tha t is therea so n why he d id n o t wa nt the b oy to refill the tank . The

b o y u sed a tin pail fo r the pu rpo se o f carrying the ic e fromthe tank to the kitche n . He cou ld n o t say that he looked at theic e ta nk after the a ccid e nt . He remembers, howeve r, pu ttingthe copper co ver o n , b u t he d id n o t lo ok to see the co nd itio n o f

the ta nk . The last he saw of the b o y w a s when he was po u ring ho t wa ter o n the pipe s, having taken the salted ic e o u t .

He heard no thing mo re from the employee u ntil o n e o f the

wa itre sse s came to him a nd to ld him that o n e o f the boys hadfa llen d own the e leva to r we ll . He then wen t d own the fro n tsta irs , a nd a t the fo o t Of the sta irs m et Mr . Co le , whom he

to ld o f the a ccid ent . He went thro u gh the lu n ch ro om to the

b asement , where the e levato r we ll is . At that time Mr.

Au stin Page a nd Jo seph Ta rsa were coming up the e leva torwith the b oy in the ir arms . Mr . Page to ld him to te lepho nefo r the amb u lance . He d id n o t , at tha t time , examin e the

co nd itio n o f the b oy ’s b ody .

It w a s here agreed tha t the employee had a fa ll a nd that hewas in stan tly killed .

The employee had b een wo rking at the re stau rant , and he

(witn e ss) had b een giving him o rd ers , and he had fo u nd thatthe boy was very co n scien tio u s ab o u t his wo rk ; tha t the b o yha d a lways b een in the habit o f carrying o u t the d ire ctio nswhich he gave him .

13

Cro ss-examin ed (by co u n se l fo r in su rer), witne ss te stifiedthat the accid en t occu rred o n the 9th o f September. It w a s hisopin io n that the employee wo rked fo r the Page Compa ny b eforethe 3d o f September . He thinks the b oy had wo rked fo r themlonger than from the 3d , altho u gh he w a s n o t su re , b u t he go tthe b oy ’s pay in an enve lope and le ft it at the d esk , and he w a spretty su re that there w a s a we ek’s pay in the enve lope , and

whether the b oy go t a ny b efo re that he d id n o t kn ow, b u t

sta ted that they always ho ld so ma ny d ays b a ck ; tha t they are

pa id o n a Wednesday up to the Satu rday befo re . He tho u ghtthat the b oy had rece ived some pay , a nd that this o ther payw a s what he wou ld have rece ived the fo llowing Wedn esd ay

, b u t

that he m ight have been m istaken ab o u t it . He saw Mr . Qu a

in the re stau ran t after the accid en t , b u t did n o t kn ow whe therhe in spected the prem ises o r n o t . Mr . Qu a did n o t ta lk withhim a t tha t time , b u t su bsequ en tly b e had a ta lk with Mr . Qu a .

He d id n o t reca ll ever having any ta lk with Mr. Cro n in , co u n se lfo r the Lib erty Mu tu a l In su ra n ce Company , o r any investiga to ro f the company .

‘

An investiga to r o f the company came to therestau rant , b u t he did no t have a ny ta lk with him . It was n o tn ece ssary fo r the employe e to e nter the d in ing ro om in o rd er toclean o u t the ta nk . There is a d o o r e ither sid e Of the sid eb o ardby which he co u ld en ter, a n d there is a slid ing d o o r in b a ck o f

the tank thro u gh which the b oy co u ld en ter to clean the ta nkwitho u t en tering e ither of the d o o rs which open in to the d in ingro om . There a re tw o d o o rs from the d in ing ro om to the kitchenthro u gh which he co u ld en ter in ca rryin g the d ishe s from the

d in ing ro om to the kitchen . Q .

“How fa r w a s this ta nk fromthe in sid e o f the kitchen , the n eare st w ay yo u co u ld g o ?

” A .

“Ten fe et .

”

Q .

“

And from this pla ce where the e levato r isit wo u ld b e 30 o r 40 fe et mo re ? A .

“Yes , sir . He wo u ld

have to cro ss the en tire kitchen .

”The last time he saw the

employee he w a s po u ring ho t wa ter o n the pipes . The d umping o f the ic e wo u ld bring the b oy very n ea r the e leva tor we ll ,if he to ok it there to d ump , bu t witn e ss fu rther sta ted thatthere a re several b arre ls , fo u r or five , in the ro om which heco u ld u se , a nd also a sink . The b oy m ight have “

d umped ”

the ic e in a ny o n e o f several barre ls tha t were in o ther pa rtso f the kitchen . The b oy’s time w a s taken up almo st a lto gether

14

in carrying o u t the u sed dishes ; b u t on ce in a while he fo u ndan odd jo b , like this o n e , to give the boy. Witne ss stated thathe was familiar with the elevator which is in the bu ilding. Thedoors Of the elevato r are closed except when the elevator is atthat flo or. The doors a re locked by a fasten ing o n the in sid eof elevator shaft . The doo rs Of the elevator are what on e

wou ld call cou nterb alan ced ; when o ne goe s up the other go esdown , meeting in the center . The top doo r, b eing heavierthan the bottom , comes down Of its own weight . He has

noticed , however, o n several occasio n s, that the doo rs , whichare mad e of very heavy stee l , will bou n ce apart ; when theystrike they d o n o t catch ; they bo u nce back a nd settle backagain , b u t they are no t su pposed to stay open , a nd he wo u ldn o t say that he had ever seen the doo rs remain open . Whenthe d o o rs come to gether they sometimes b ou nce back, b u t theyare su ppo sed to settle b a ck a gain . He wo u ld no t say that hehad ever seen the d o ors stay open .

Und er re-d irect examinatio n (by cou n se l fo r claima nt)witnesste stified tha t if the d o o r had fa iled to fa sten , a nd stayed apart,it wo u ld b e po ssib le to open it from the in sid e Of the ro om .

He d id n o t believe that if o n e lea n ed again st the doors it wo u ldopen them . If o ne pu t a dec ided pre ssu re o n the lower d o o rit wo u ld open b o th d o o rs, in his opin io n .

Und er re-cro ss examinatio n (by co u n se l fo r in su rer) witnesstestified that the d o o rs Of the elevato r are mad e o f very heavystee l . He d id no t think it requ ired a grea t d ea l Of pre ssu re toopen the d o o rs .Und er re-d irect examin atio n (by co u n sel fo r claiman t)witn e ss

testified that the fact tha t the d o o rs wo u ld o pen u po n pre ssu rewas tha t they are co u n terb a lan ced . He d id n o t talk with

co u n se l fo r the cla iman t u n til a few d ays ago o ver the pho n e ,when he w a s in fo rmed tha t he w a s to b e summo ned to thehearing in this case .

Und er re-cro ss examin ation (by co u n sel fo r in su rer) witn e sstestified that he to ld Mr. Co le and a Miss Lown ey, an in specto rfo r the Ind u strial Accid ent Bo ard , the sto ry o f the b oy clean ingo u t the ic e tank . There is an iro n sink n ear the e levato r in thekitchen . There is another iro n sink where the kitchen m en

wash po ts a nd pan s which are u sed in the kitchen , and o n e in

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he mean t the ca tch o n the in side of the door, and at thosetim es there wou ld be a slight c rack between the doors . If thecatch was n o t o n o ne co u ld open the doo rs with the u su alpressu re . Q.

“Now if yo u opened it with you r hand and

didn ’t open it all the way down to the bottom , whe re therew as a catch, to hold it open , it wou ld close of itse lf again ,

wou ldn ’t it ? ” A .

“Yes .

”

Q . The fact that yo u opened itwith yo u r hand for a foot or tw o wo u ldn ’t leave an o penspace there ; if yo u too k you r hand Off , it wo u ld close right upagain ? ” A “ If yo u too k yo u r hand Off it wo u ld clo se rightup again . Q .

“The d o ors were heavy enou gh so that they

closed very promptly ju st as soon as that catch down at theb ottom was released , didn

’t they? A . Su pposed to .

” He

was at the gas range at the time his attentio n was called tothe acciden t ; was sta nding at a point marked

“A ”o n the

plan su bm itted by in su rer, where he wo u ld n o t and did n o t

have any View of the b oy .

Under re-direct exam ination (b y co u n sel fo r claiman t)witness te stified that when the e levato r mo ved away from the

floo r the doo rs were su ppo sed to clo se, b u t that it sometimeshappen ed that the e levato r wo u ld move up o r down a nd the

doo rs wo u ld n o t close . He co u ld n o t say how often the d o orsdid n o t clo se , as he was n o t

'

o n the e levator very mu ch . Q .

And when that happen s it_

wou ld leave the doors entire lyopen , the fu ll width, the catch wo u ld b e o n a nd bo th doorswo u ld be open , leaving the en tire entran ce in to the shaft ex

posed ? A .

“Yes .” This sometime s happen s when the ele

vato r go es up. Q . SO tha t; as I u nd erstand it, there are

tw o things that m ight happen . One thing is that the ca tchmight n o t b o ok, and tha t wo u ld leave the doo rs a little w ay

apart, so tha t slight pre ssu re wou ld open them , and then theywo u ld come to gether again ; a nd the o ther thing that thecatch tha t ho ld s the do o rs open might n o t be re leased whenthe eleva to r wen t up, a nd tha t wou ld leave the entire spaceopen , and both Of the se things did sometime s happen ? ” A .

“Yes .

” He ha s se en bo th Of these things happen .

Und er re-cro ss examinatio n (by cou n se l fo r in su rer) witnesste stified tha t when the doo rs are closed they d o n o t open whenthe e levato r comes to a flo o r, u n less somebody open s them .

17

The doo rs d o n o t au tomatically open when the elevator reachesa flo o r ; the doo rs have to be opened by some o ne . The do o rshave to be opened from the in sid e of the we ll u nless the catchis Off in some way, and then on e c an open the d oors from the

ou tside . The d o o rs co u ld n o t be opened except from the in sideof the we ll , u nless the catch in some way w a s lo ose ; o n e

cou ld then open them from the o u tside.Re-d irect examination (by cou n sel fo r claimant): Q. Doesit sometimes happen that where there is nobody o n the elevatorit will start up?

” A .

“NO , b u t if it is n o t stopped right still ,

it will grad u ally wo rk . Q Up o r d own ? ” A . Whicheverway the power is .” Q. And so it might happen , do e s itsometime s happen that when it isn ’t fu lly stopped a perso nmay step Off and the elevato r keep o n go ing? A . Grad u allyju st a little at a time u n til it wo u ld leave that space o pen .

The do o rs wo u ld remain open if they failed to fasten .

Re-cro ss examin atio n (by co u nse l fo r in su rer): Q . If am a n came o n the e levato r to a flo o r a nd o pe ned the d o o rs a ndthe n go t o ff the elevator witho u t fixing the rope s ju st right , thee levato r might go away a nd le ave the d o o rs open there u n tilhe came b ack?” A .

“Ye s . Q .

“B u t if the m a n le ft the

e levato r at the lower flo o r and the d o o rs were clo sed o n the

other three flo o rs then , whe ther the e levato r wen t up o r stayedright where it was at the lower floo r, the d o o rs wo u ld still b eclo sed ?” A . Yes .

”The mo ving u p o f the e levato r wo u ld

n o t open the d o o rs if there was n o o n e o n the e leva to r to o penthem .

Under re -d irect examina tio n (by co u n se l fo r cla imant)witne sste stified tha t the e le va to r may cre ep o ne way o r the o ther ifit is n o t stopped properly .

Clarence Du d ley Ko che sperger, called by the Cla imant ,te stified that he is now emplo yed by the Page Company in theca ndy ro om , b u t at the time o f the a ccide nt he w a s a n e levatoroperato r fo r the company , and his wo rk a t tha t time was c o nfined to the ope rating o f the e leva to r . He was no t o n d u ty a t

the time o f the b oy ’s accide n t . He go t thro u gh his wo rk at6 o

’clo ck a nd w a s n o t in the b u ild ing . He d id n o t kn owwhether o r n o t the power w a s shu t o ff when he qu it , b u t thatit was su ppo sed to b e . The accid en t happened o n a Monday

18

n ight . The power is generally shu t o ff o n Mo nd ay n ights as o no ther n ights . Whe n he le ft fo r the n ight he le ft the elevato r inthe b a semen t . In o perating the e levator it was his cu stom , a s

he passed the va rio u s flo o rs , to clo se the do o rs to give thema little pu sh with the hand . This he d id b eca u se , altho u gh thedoors were su ppo sed to wo rk a u tomatically, they some time sfailed to d o so , a nd it was a cu stomary thing fo r him to shu tthem as he went by . He did no t remember specifically showingMr. Qu a , co u n se l fo r cla ima nt , the elevato r

.

a nd its wo rking ,as he had shown so many peo ple . He rememb ered , however,showing someb ody how the e levato r wo rked sho rtly after the

a ccid e nt , a nd tha t tha t someb ody tried the d o o rs o f the e levato ra nd they failed to ca tch ; pro b ab ly the do o rs we re left o pen byfo rce . Q .

“That is to say, I shu t them hard a nd they b o u ncedb a ck?” A .

“Yo u he ld them o pe n o n pu rpo se , to see if they

wo u ld stay open .

” Witness stated that o n o n e o f the se occasio nsthe d o o rs d id stay o pen . He re ca lled a time when the doorsbou nced ba ck, b u t that they ca u ght a gain . He d id n o t re calla time when the d oo rs b o u nced b a ck a nd failed to catch again .

Und er re-cro ss examinatio n (by cou nse l fo r insu rer) witne sste stified that he to ld the m an , to whom he showed the e leva to ra nd its wo rkings , everything he knew ab o u t the elevato r ; hed id n o t keep any in fo rmatio n b ack ; anything the m a n askedhim to d o , he tried to d o . When he re leased the catch at theb o ttom Of the do o r the do ors fa iled to clo se , and he wo u ldsome time s have to u se his hand s . On the n ight o f the a ccid e n t,if he rememb ers co rre c tly, the d o o r o n the se co nd flo o r w a s

o pen a little ; a b ox had b ee n thrown up aga in st it . Q .

“ Iam a sking whe ther yo u had to u se yo u r hand sometime s to clo setha t d o o r o n the seco nd flo o r, o r whe ther it w a s some o f the

o ther d oo rs ?” A .

“ I d id it a ll the time o n a ll the d o o rs so a s

to b e su re .

” Witne ss stated tha t o n the n ight o f the accid e nt,a s he made his la st trip , he clo sed the do o r o n the seco nd flo o r .

The d o o r o n the se co nd flo o r o n the n ight o f the accid e n t w aspa rt w ay open , ab o u t a fo o t , a nd as he w a s coming d own heclo sed it . He clo sed this doo r ab o u t 6 o

’clo ck ; he co u ld n o t

give the exact time . There w a s a b ox aga in st the d o o r . He

le ft the elevato r a t the b a semen t . When he le ft fo r the n ightthe d o o rs o n fo u rth, third a nd se co nd flo o rs were clo sed ; all

19

three d o o rs were clo sed . The d o o r d own in the b asemen t ,where the e levato r w a s , was ope n . Be fo re the a ccid en t the d o o rin the b a semen t w a s le ft o pe n , b u t sin ce the accid e n t the d o o ris clo sed . It w a s his (witn e ss

’

) d u ty to ru n the e levato r . He

kn ew the McMaho n b o y by sight . It w a s n o t the b oy ’s d u tyto ru n the e levato r, ne ither w a s b e su ppo sed to have a nythingto d o with the ru nn ing Of it . He had som e ta lk with the McMaho n b oy to the e ffect that he sho u ld n o t u se the e leva tor o r

fo o l with the ca b le which starts the e leva to r, a nd tha t , if anyo n e did so , he (witn e ss) w a s su ppo sed to repo rt them . Ifthey go t to o tro u b le some , it w a s his d u ty to report them .

The se o rd ers were given to him by Mr . L . McGlu in . He ha s

heard Mr . Co le , ma nager o f the restau ra nt , te ll the b oy no t to

u se the e levato r o r go ne ar it . He he a rd Mr. Co le te lling theb oy in the b a sement when the b oy first came to wo rk the re ;he co u ld n o t give the d ay . He (witn e ss) w as o n the e leva to rwhen he he a rd this co nversa tio n , after having b ro u ght Mr .

Co le and the b oy d own in the e leva to r .

Und er re -d ire ct examin a tio n (by co u n se l fo r claiman t)witne sstestified that the co nversa tio n to which he had ju st re ferredo ccu rred the first time he saw the b oy . The b ox, which hehad previo u sly men tio ned as re sting again st the e leva to r, hadevid ently b e e n b ro u ght up from the ce llar o n the e leva to r a nd

thrown Off , a nd pro b ab ly , when it was thrown Off, it mighthave fa llen b a ck o r have b ee n p u shed b a ck so that it re stedagainst the d o o r. He pu shed the b ox o u t o f the w ay , tu rnedit up o n end a nd clo sed the do o r o n his last trip d own ata b o u t five min u te s o f six .

Mrs . An a sta sia McMaho n , mo ther o f the d ecea sed employe e ,te stified that her so n w a s fiftee n ye ars o ld o n the 5th o f Au gu st .Her so n had wo rked fo r the D . L . Page Compa ny ab o u t aweek a nd a ha lf when he w a s killed . They sen t her tw o paye nve lope s . Charle s w a s to get $6 a we ek . She rece iveda lto ge the r fo r the we ek and a ha lf . She u nd e rsto o d tha t hew a s to ge t $5 at first , a nd then they to ld he r he wo u ld ge t $6 ,to ge ther with his b o ard . She is a wid ow ,

her hu sb a nd havingd ied e ight ye ars ago , a nd had n ine child ren ,

— Jame s Le e , 22 ;He le n , 21 ; Lo retta , 19 ; Freddy, 17 ; Ma rgaret , 15 ; Cha rle s , 14 ;E rne st , 12 ; Ha ro ld , 10; Grace , 8. All o f the children are living

20

with he r, as o ne family . Helen is married , and she , her hu sband ,and fo u r mon ths ’ old b aby live with he r. James wo rks earn ingfrom $20 to $22 a week, averaging abo u t $22, as acting fo remanat the car barns o f the Bay State Street Railway . He le ndo es no t wo rk . Lo retta wo rks o n piece work at the Myers ’

Thread Mill , and earns from $12 to $17, averaging ab ou t $14.

Freddy e arns $17 a week, wo rking fo r Robert Kern , a grocer .

Margare t wo rked abou t a year a nd a half a nd e arned fromto $9 a week . She is n o t wo rking n ow , and was no t

wo rking at the time Charles was inju red , as she had to u ndergoan o peratio n . E rnest , Haro ld a nd Grace go to schoo l and d ono t work . She d o e s n o t wo rk . She has no t any property .

On Au g . 6 , 1918, Charles wen t to work in the Silesia Mills ata week fo r ab o u t three weeks , and from there went to

the D . L . Page Company . He gave her all his earn ings whilea t the Sile sia Mills . All the children who wo rk give all the irmo ney to her and

.

she ru ns the ho u se , and she provid e s themwith fo o d a nd clo thing .

Cro ss-examined (by co u n se l fo r in su rer), witne ss te stified tha tJame s , Lo re tta , Freddy and Margare t tu rned in all the mo n eythey earned to her . He len , with her hu sb and and child , live swith her ; from them she go t $10 a week fo r the ir b o a rd , a nd

since Charle s d ied they have b een giving a little mo re . He lendoes no t he lp her very mu ch with the ho u sewo rk , as she ha sn o t b e en very we ll . He le n n ever wo rked , b u t ha s stayed a t

home , b ecau se she (witn e ss) had to wo rk to su ppo rt the

children after tlie ir father d ied . He len stayed home and

he lped with the child ren . The o ld e st child w a s o n ly fo u rte enwhe n the fa ther d ied . Charle s a lways d id wo rk and b ro u ghther in something all the time . He u sed to wo rk in a ta ilo r ’sShop , a fter scho o l , an d some time s earn ed a we ek . He

a lso d id o d d jo b s aro u nd , as cu tting grass , e tc . He had aro u te fo r the “ Co u rier Citiz en ” at a week . Beginn ingab o u t Septemb er, 1917, Charle s , the d ece a sed employe e ,wo rked o n a milk ro u te from Septemb er to Octo b er at $3 a

we ek ; then he d id Od d jo b s fo r a ta ilo r , fo r which he ave ra gedab o u t u n til ab o u t Ju n e , 1918, when he to ok a paperro u te fo r the “ Co u rier Citiz en fo r ab o u t n in e o r te n we eksat a we ek, and co n tinu ed the od d jo b s , fo r which he

21

averaged ab o u t a week . This co n tinu ed u n til Au g. 6 ,

1918, when he we nt to wo rk in the Sile sia Mills a t aweek fo r ab ou t three weeks , then go ing to the D . L . PageCompany . She rece ived tw o e nve lope s from the Page Company, o n e co n ta in ing $6 a nd o ne While go ing to scho o lhe wo rked ab o u t half the time after scho o l ho u rs . While theemployee wen t to scho o l he wo rked fo r a tailo r, a nd averagedab o u t a we ek, and a lso d id Odd jo b s fo r o ther pe o ple .

While working fo r the tailo r he wo u ld get tips amo u nting to5, 10 a nd 15 cents , in add itio n to his a week . She co u ldn o t say whe ther he wo rked o n the milk ro u te to the e nd o f

Octo b er o r the first of the mo n th. After she took him o ff the

milk ro u te he had n o regu la r wo rk u n til Au g. 6, 1918, whenhe we nt to wo rk fo r the “ Co u rier Citizen ,

”b u t he d id odd

jo bs, wo rking fo r fo u r o r five o r mo re peo ple , a nd 50 ce n ts wasabo u t the lowe st su m which he received from them , earn ing as

mu ch a s some we eks . On e d o llar w as the lowe st su m he

eve r earned in a week while d o ing the se Odd jo b s . FromOcto b er u n til he we n t to wo rk fo r the

“ Co ur ier Citize n ” inJu n e he d id Odd job s and averaged from $1 to a week .

Witne ss stated that it was her o pin io n that it cost her $5 aweek to fee d the d ece ased employee , and that it co st her ab o u t$100 a year to clo the him . He had five su its a ye ar, to getherwith extra tro u sers . She paid as high as $12 fo r his b e st su itsa nd $8 fo r his o ther su its . In her opin io n $100 was a faire stimate fo r the co st o f the b oy ’s clo thing fo r a year . She

u sed to give the b oy 50 and 75 ce n ts fo r spend ing mo ney, a ndsome time s $1 if she co u ld affo rd it , so that he wo u l d rid e ba cka nd fo rth from the d iffere nt pe o ple . The average amo u n twhich she gave the b oy each week w a s 75 ce nts .Und er re -d irect examinatio n witne ss te stified that fo r the last

tw o we eks and a half her fo o d b ill w a s $44, a nd she ha s se e nit go as high as $47 ; tha t is ju st fo r me a t , n o t fo r a ny gro cerie s .She co u ld no t te ll the co st o f her meat b ill . She trad e s at theFamily Gro ce ry Compa ny .

Qu e stio ned by the Commissio ner, witness te stified that she

ha s a reco rd Of the mo ney which she ha s Spen t d u ring the lastyear fo r fo o d , e tc . The b o y a lways tu rne d in all the mo ney hee a rn ed to her .

22

Under re-c ross examination (by cou nsel fo r insu re r) witnesstestified that from the time her so n wen t to wo rk for the PageCompany he did no t bring home any pay to her ; that theb oy ’s wages at the Page Company were received by her afterhe had d ied . The tw o envelopes which she received from the

company came after the boy ’s de ath . The b o y did , however,b ring home tips to her while wo rking at the Page Company .

Und er re-d irect examinatio n (by cou nsel fo r c laiman t) witne ss testified that the tips averaged from 50 to 60 cents a n ight .He b ro u ght home 25 cen ts the first n ight . As she u nderstoodit, the b oy waited o n m en who came in with the ir hats and coatso n .

B oa rd Member’

s Findings a nd Ru lings .

Charle s A . McMaho n was fiftee n years o ld at the time o f hisd eath while in the employ of the D . L . Pa ge Company, fo rwhom he wo rked as b u s b o y , carrying dishe s from the d in ingroom to the kitchen a nd do ing o ther cho re s and du tie s aro u ndthe e stab lishmen t o n ord ers from su perio rs . His d u tie s ca rriedhim to practically all parts of the kitchen , where he was la stse en wo rking . There was te stimo ny tha t he was d irected n o t

to medd le o r tamper with the e levato r .

On the d ay he w a s killed in co n se qu en ce o f falling d own thee levator we ll he had o rd ers from o ne in au thority to clean o u t

a wate r ta nk, a nd w a s last se e n carrying o u t sa id o rd ers . Therewere tw o place s where ic e from sa id tank might have beendu mped , in to empty b arre ls o r in to o ne Of tw o sinks , o ne

o f which w as lo cated n ear the e levato r, which w as the mo stavailab le to d u mp the ic e and o ther co nten ts o f the tank, b ecau se the o ther sink co n ta in ed some so iled d ishe s .The evid e nce showed that the co rner o f the kitchen in whichMcMaho n w a s wo rking at P .M . was rather d ark and po o rlylighte d .

A regu lar e levato r m an w a s employed to ru n the e levato r .

His hou rs o f lab o r terminated a t 6 o’clo ck . The te stimo ny of

this e levato r m a n was tha t he clo sed the do o rs a t the end ofhis day ’s wo rk a t 6 o

’clo ck o n the n inth d ay o f Septemb er,19 18, the d ay McMaho n m et his d eath .

The d o o rs o f the e leva to r we re co n stru cted to open u p a nd

d own , and when shu t m et practically in the center . There was

https://www.forgottenbooks.com/join

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weeks , dating from Sept . 9 , 1918, su b ject to the provisio n s Ofthe statu te . This weekly compensatio n is ascertained in a c

c o rd anc e with the requ irements Of Part II , sectio n 6, whichprovides tha t “ if the employee leaves d epende nts only partiallydepe ndent u po n his earnings fo r su pport at the time o f his

in ju ry , the association shall pay su ch dependents a weeklycompen satio n equ al to the same pro po rtio n o f the weeklypayments fo r the benefit o f perso ns who lly depend ent as theamo u nt co n trib u ted by the emplo yee to su ch partial d epende n tsbears to the ann u al earn ings of the deceased at the time o f

his inju ry .

Insu rer ’s a nd claimant ’s requ ests fo r findings and ru l ings aregive n in so far as they are con sistent with this find ing ; o therwise they are den ied .

JOHN H . COGSWELL.

Filed Mo nday, D e c . 8, 19 19 , at 9 AM .

INSURER’S REQUESTS FOR RULINGS o r LAw AND FIND INGSo r FACT.

NOw come s the Liberty Mu tu al In su rance Company, insu rerin the ab o ve-e n titled actio n , and re spe ctfu lly requ e sts the fo llowing find ings o f fa ct and ru lings o f law :

1 On a ll the evid en c e c la im ant is no t entitled to rec over.

2. There is no evid enc e tha t employee ’s in ju ry aro se o u t o f his employm ent .

3 . On a ll the evid en c e employee ’s in ju ries did no t arise o u t o f his

employm ent.

4 . On a ll the eviden c e employee ’s in ju ries w ere no t su sta ined in the

c o u rse o f his employm ent .

5. On a ll the evid en c e employee w a s hired as a b u s b oy to c a rrytrays o f dishes from the din ing ro om to the kitchen and to do o c c asiona lOdd jo b s in the dining ro om fo r the head w a iter.

6 . On a ll the eviden c e employee w as in ju red by fa lling down an elevato rwe ll lo c ated in a c o rner Of his employer’s kitchen .

7 . On a ll the evid en c e employee had been id ling in the vic inity Of thiselevato r w ell som e fifteen min u tes b efo re his fata l a c c id ent .

8. On a ll the evid en c e no d u ty o f employee ’s w o rk requ ired him to b e

at o r n ear sa id eleva to r we ll at the tim e Of his in ju ry.

9 . On all the evid en c e employee ’s in juries w ere su sta ined as a resu ltOf tampering w ith the do o rs gu ard ing the entran c e to an elevato r w ell .10. On a ll the evid en c e employee wa s in ju red in c onn e ction w ith his

attempted u se Of an e levato r Operated by pow er, the u se , Operatio n or

25

in terferen c e w ith which was ha zardo u s to one no t experien c ed in its

Opera tion .

1 1 . On a ll the evid en c e employee had re c eived d efinite instru ctio nsfrom his superio r to keep aw ay from the elevato r.

12. On a ll the evid en c e the entran c e to the e leva to r w a s pro te c ted byd oo rs whi ch a u tom atica lly c lo sed and fas ten ed by a lo cking d evic e on theinside at the pla c e where the employee m u st have ga in ed entran c e to the

e levator well .13 . On a ll the eviden c e employee ga ined en tran c e to the elevator w ell

by in terfering in som e w ay with the lo cking d evic e on the insid e o f the d o o r .

14 . On a ll the evid enc e employee ’s in ju ries fo llow ed a vo lu ntary Open ingo f the e levato r d o o rs by himself, in Vio la tion o f the o rd ers o f his superio ra nd o u tsid e the sc ope o f his w o rk .

15 . On a ll the evid en c e employee entered the eleva to r w ell w itho u ta u tho rizatio n o r perm issio n o f any perso n who had a u tho rity to give himperm ission o r o rders to u se the elevato r o r its d o ors o r applian c es .

16 . On a ll the evid en c e employee , by in terferingwith elevato r applian c eswhich he knew to b e dangero u s , su b je c ted hims elf to a risk no t intrinsic

to his emmoym ent .

17 . If the employee , by a ttempting to u se an eleva to r o r the selfc lo sing doo rs o f an eleva to r which he kn ew to b e dangero u s , added a n ew

and d istin c t risk o f in ju ry to his regu lar w o rk , there c an b e no recoveryfo r in ju ries a c tu a lly resu lting from sa id add ed risk .

18. If the employee vo lu ntarily takes u pon him self w ork d ifferent inchara c ter from the w o rk which his employer has assigned to him , there

c an b e no re covery fo r in ju ries su sta in ed at su ch n ew wo rk .

19 . On a ll the evid en c e the c a u se o f employee ’s fa ll into the e levato rw ell is pu rely c onje c tu ra l .20. If on a ll the evid en c e the ca u se Of employee ’s fa ll into the eleva to r

w ell is pu rely co n jec tu ra l , c la im ant is no t entitled to rec over .

21 . On a ll the evid en c e c laim an t w a s n o t d epend ent u pon the earningso f the d e c eased employee fo r suppo rt .

LIBERTY MUTUAL INSURANCE COMPANY,By its Atto rn ey,

JOHN W . CRONIN .

CLAIMANT’S REQUESTS FOR FIND INGS OF FACT AND RULINGSOF LAw .

The claiman t re spectfu lly requ e sts that the fo llowing find ingsof fact be m ade

1 . The in ju ry and d ea th Of the de c ea sed employee aro se o u t o f his

employm ent .

2. The in ju ry and d ea th Of the d ec eased employee aro se in the c o u rse

Of his employm ent .

26

3 . The single m ember o f the Bo ard who first heard the case to ok a Viewo f the premises , in c lu d ing the elevato r and Shaft, and Saw the elevato r inOperation .

4 . If the doo rs o f the elevato r shaft were properly c losed and fastened ,they co u ld b e Opened o nly from the inside Of the elevato r shaft, and itwo u ld have b een impo ssib le fo r a perso n in the kitchen to Open them .

5 . The c la imant, the m o ther Of the dec eased , was partia lly dependen tu pon his earnings fo r suppo rt at the tim e Of his in ju ry .

6 . Ever sin ce the deceased had been at work, and wherever he wo rked ,he had always tu rn ed in a ll the wages which he re c eived to his m o ther .

7 . If the d ec ea sed had lived long eno u gh to rece ive his first pay fromthe D . L . Page Company, he wo u ld have tu rned that pay over to hism o ther, and she d id rec eive it after his d ea th .

8. In this case , by reason o f the sho rtn ess o f the time d u ring which the

employee had been in the employm ent o f the D . L . Page Company, it isimma c tic ab le to c ompu te the average w eekly w ages by dividing his to ta learnings fo r the pre c eding twelve m onths by fifty-two , and regard Sho u ldb e had to the average w eekly am o u n t which, du ring the twelve m o nthsprevio u s to the in ju ry, was being earned by a perso n in the sam e grad e ,employed at the sam e w o rk by the sam e employer.

9 . The average w eekly w ages o f the deceased a t the tim e o f his in ju rywas

10. The ann u a l earnings o f the d e ceas ed a t the tim e Of his in ju ry , b e ingthe to ta l am o u nt earned by him d u ring the pre c eding year, w as1 1 . All o f this am o u nt w as c o n trib u ted by the d e c eased to his m o ther,

exc ept his wages and b o ard a t the D . L . Page Compa ny, am o u nting to

12. The c laimant has no property, and had no su rplu s left after providing fo r the fam ily from the earnings o f the children tu rned in to her. (The

fa c t that there w as no su rplu s is no t expressly stated in the evid en ce as

prepared in narrative fo rm by the stenographer. The c laiman t is stro nglyOf Opin io n that she d id testify at the hea ring that it to ok a ll she c o u ld getto ru n the fam ily , and that this evid en c e w ill b e fo u nd in the steno grapher’so rigina l no tes o f the testim ony. At any rate , it m ay b e inferred from the

fa c t that she w as a widow w ith nin e children , from the am o u nts o f the ir

earn in gs as shown by the evid en c e , and the fu rther fa c t that she has n o

Property.)

The cla imant re spectfu lly requ e sts that the fo llowing ru lingsof law b e mad e

1 . There is n o evid en c e to ju stify a find ing that the d ec ea sed ha d leftthe sphere o f his employm ent fo r any pu rpo se Of his own d is c o nn ec ted

,w ith and no t in c id enta l to the employm ent .

2.Whether o r no t the c laimant wa s pa rtia lly d epend ent u pon her so n ’

s

earnings fo r suppo rt is to b e d eterm in ed in a c c o rdan c e w ith the a c tu a l

27

I

fa c t a t the date o f the in ju ry. It is imm ateria l whether she had beend epend ent u po n him fo r any pa rticu la r length o f tim e prio r to the day ofthe a c c id ent, and depend en cy is no t to b e d eterm ined by a compa riso no f the boy’s contribu tion to his m o ther and Of her expend itu res fo r himdu ring the prec ed ing yea r, o r fo r any o ther pa rtic u la r length o f tim e pre

c ed ing the in ju ry.

3 . The c la iman t wa s pa rtia lly depend ent u pon the earnings o f the

d e c eased fo r suppo rt if, a t the tim e of his death, he wa s contrib u ting

toward the fam ily fu nd ma inta ined by the m o ther m o re than She wa s

expend ing ou t o f that fu nd in his b eha lf .4 . The fa c t that, if the d e ceased had lived , he w ou ld have contribu ted

to his m o ther the wages he wa s ea rning at the D . L. Page Company ju sta s he had fo rmerly c ontrib u ted a ll o f his ea rnings wherever he wo rked ,may b e consid ered in d eterm in ing whether, at the time o f his d ea th, a state

o f partia l d ependen cy existed , n o tw ithstand ing the fa c t that the m o therd id no t a ctu a lly rec e ive these w ages u ntil after the son ’

s d eath

5. The fa c t that the d e cea sed had Obta ined new employm ent at theD . L. Page Company, bu t, at the tim e he wa s killed , had no t wo rkedthere long eno u gh to d raw his first pay , d o es not prevent the c la imant

from being partia lly d ependent u pon him .

6 . The va lu e Of b o ard fu rn ished by the D . L . Page Company to itsemployees

,fixed by the term s o f the agreem en t b etween the c la ima nt and

the insu re r at $6 per week, is to b e co n sidered a s a part o f the employee ’spay in c a lc u lating average weekly wages , a s if it had b een pa id in c a sh .

7 . The sum re c e ived in tips by the employee o f the D . L. Page Companyw ith the know led ge and c on sent o f the employer, fixed by the term s Of theagreem en t b etween the c la imant and the insu rer at $2 per week, is to b ec o nsid ered a s a part o f the employee ’s pay in c a lcu la ting average weeklywages .

8. The c la imant is entitled to c ompen sa tion at the rate o f per

w eek fo r a period o f five hu nd red weeks from the date Of the in ju ry .

By her Atto rn eys ,QUA , HOWARD ROGERS .

AGREEMENT.

In the ab ove-e n titled matter the fo llowing fa cts are agre edu pon

1 . The c o st o f b o a rd and lodging o f the d e c ea sed Cha rles A . McMahon

while living w ith his m o ther at hom e averaged $5 a w eek .

2. The va lu e Of the fo od fu rnished to the d e c ea sed Cha rles A . McMahon

by his employer, D . L. Page Company , a s a part Of the term s Of his employm ent

,wa s $6 per week .

3 . In add ition to his b o a rd , the d e c ea sed employee , Cha rles A .

28

McMahon,w as to have rece ived from his employer, D . L. Page Company ,

wages in ca sh amou nting to $6 a week .

4 . D u ring the tw elve m onths previo u s to the dec ea se Of the employee ,sa id employer, in add ition to fu rnishing boa rd o f the va lu e hereinbefo resta ted , pa id to persons in the sam e grad e , employed in the sam e wo rk asthe d e cea sed , the sum Of $5 in ca sh perweek upto Ma rch 2, 1918, and thesum o f $6 in ca sh per week from Ma rch 2, 1918, up to the da te o f the

d ea th o f the employee .

5. In add ition to his boa rd and his wages , the dec ea sed employee ,while a t wo rk fo r the employer, re c eived , w ith the know ledge and c on sent

o f the employer, from pa tro ns o f the resta u rant, tips to an average am ou ntOf $2 per week .

6 . Du ring the tw elve m onths previo u s to the dec ease Of sa id employee ,perso ns in the Same grad e , employed a t the sam e w o rk by the Sam e employer, re c e ived , w ith the know ledge and con sent Of the employer, frompa trons o f the resta u rant, an average Of $2 pe rweek in tips .

ANASTASIA MCMAHON, E mployee’

s D ependen t,

By her Atto rneys ,QUA , HOWARD ROGERS .

LIBERTY MUTUAL INSURANCE COMPANY, Insu rer,By its Atto rney,

JOHN W. CRONIN .

FIND INGS AND DECISION OF THE INDUSTRIAL ACCIDENT BOARDON REVIEW .

Bo th partie s having filed a cla im fo r review, the Indu stria lAccid e n t Bo ard heard the partie s a t Bo sto n , Ma ss . , o n Wedne s

d ay ,D e c . 31 , 1919 .

Pre se nt : Me ssrs . Kennard (cha irman), Dickin so n , Parks ,Gle a so n a nd Co gswe ll .Appe arance s : John W . Cro n in , E sq . , fo r in su rer ; Me ssrs .

Qu a , Howard Ro gers (Sta n ley E . Qu a , E sq . , o f co u n se l) fo rd epe nd e n t .

Qu e stio n s : (1) Whe ther o r n o t the emplo yee ’s d e a th w a s d u e

to a perso n a l in j u ry arising o u t Of and in the co u rse o f his em

ploymen t ; (2) average we ekly wage s ; (3) d epend e ncy .

The repo rt o f the Bo a rd memb er co n ta in s a ll the mate ria levid e nce in the case . N0 o ther evid ence w a s b e fo re the Bo ardat the hearing o n review .

29

The Ind u strial Accide nt Bo ard affirm and ad opt the findingsa nd ru l ings o f the Bo ard memb er.

The Bo ard find and ru le fu rther that the evidence warrantsthe in feren ce o f fact that the death o f this employe e was d u e tothe wo rk which he was perfo rming fo r the su b scribers . The

last tw o perso n s who saw the employee alive were the witn e sses , Weiz enbaker and McNam ee , o n e o f whom saw the em

ployee ju st befo re his cries were heard as he fell , o r as he layat the b o ttom o f the e levato r well , and the o ther who la st sawhim abo u t O

’clo ck on the n ight o f the fatality . It w assho rtly after this la tter ho u r that the employee ’s crie s we reheard by Miss Weiz enb aker, who n o tified the chef o f the accident . The acc iden t o ccu rred d u ring the time which elapsedwhile Miss We iz enb aker wen t the sho rt distan ce from the

sa lad table to the sink and retu rn . This was a matter o f a fewmin u tes o nly . By the testimo ny o f the e levato r o pera to r, whofin ished his day

’s wo rk at six O’clo ck, the eleva to r w a s then

a t the bo ttom o f the we ll . The e levato r was defective . The

head waiter, McNam ee , who had charge o f the employee , hadin stru cted him o n the even ing o f the fatality to clean o u t acertain tank o r co o ler which an o ther b u s b oy had fil led withsalted ic e . This salted ic e probably was dumped into a sinkin clo se proximity to the e levato r we ll . When McNam ee lastsaw the employee the tank was nearly cleaned o u t, and the

employee was engaged in throwing ho t water o n the pipe co ilw ithin the tank to thaw o u t the pipes . The light o ver the sinkwas no t lighted , and it w a s very dark in the co rn er nea r the

eleva to r, a nd in the place where the employee was last see na live . There is n o evidence a s to the co nd itio n o f the flo o rnear the sink , e ither a s a re su lt o f its u se gen era lly, Or as theresu lt Of the dumping o f the sa lted ic e , n o r is there any evi

d en ce as to the o peratio n o f the e levato r after 6 O’clo ck . There

is evid en ce that if the gate s were secu re ly lo cked n o perso n inthe po sitio n o f the employee co u ld secu re admissio n into the

eleva to r o r the e leva to r we ll . There is no eviden ce tha t theemployee ha d ever u sed the e leva to r.

The evid en ce pla ces the employee in a place where he had a

right to b e , very near the sink and the e levato r, by theperso n who , so far as the reco rd d isclo ses, last saw him alive ,

30

Miss Weizenb aker . I went fo r something to wash, o r something, sa id Miss Weizenbaker, and she was o n her way backwhen she heard the employee ’s c ry . She places the employeeas be ing abo u t 1 fo o t from the e levato r at the time she startedu po n her erra nd ,

“ lo oking toward the kitchen .

”In that brief

space o f time the employee walked into the o pen e levato r well ,fe ll to the bo ttom , and was killed . In the sho rt period o f timeinterven ing between 6 O

’clo ck and abo u t fifteen min u te s afterward , the e leva to r, e ither o f its ow n mo tio n by reaso n o f in

herent de fe cts , o r operated by a perso n u nknow n ,ascend ed

from the b o ttom o f the pit to the top. The elevato r was ina defective co nd itio n ; the gate s d id n o t wo rk prope rly ; thed o o rs sometime s “ bo u nced ” back ; the elevato r had a tend en cyt o creep ;

“ if o ne pu t a decided pressu re o n the lower d o o r,it wo u ld open bo th d o o rs , acco rding to the witness McNam ee ;

and the witne ss Page testified tha t it sometimes happened thatthe e levato r wo u ld mo ve up o r d own and the do o rs wo u ld n o t

clo se. He answered in the affirmative the qu e stio n , And

when that happen s it wo u ld leave the d o ors entire ly open , the

fu ll width, the catch wo u ld be o n and bo th do o rs o pen , leavingthe entire entran ce into the shaft expo sed ?

”The elevato r

o perato r testified that he clo sed the do o rs a t the end o f his day ’swo rk and le ft the el evato r at the bo ttom o f the we ll . The

t estimo ny w a s that if the d o o rs were lo cked , as claimed , theyco u ld n o t b e open ed except from the in side o f the we ll . NO

d irect te stim o ny ha s been pre sented to show how the e levato r

go t to the top o f the we ll a nd how the employee fe ll to hisd ea th a t the bo ttom o f the we ll . The employe e co u ld n o t

po ssibly have o pen ed the ga te s, if they were lo cked . He had

never vio la ted the o rders which were given n o t to Opera te theeleva to r ; had been mo st co n scientio u s ab o u t his work , a nd hada lways ca rried o u t the d irectio n s a nd in stru ctio n s given byM cNam e e , who w a s his su perio r . It is n o t pro b able tha t hisdea th w a s d u e to a n a ttempt to opera te the e leva to r, if it were

po ssib le fo r him to d o so . If the e leva to r opera to r’s evid en ceis co rrect, the e levato r sho u ld have b e en a t the bo ttom o f the

w e ll, a nd the employee ’s bo dy sho u ld have been fo u nd o n top

o f the e leva to r . B u t the e leva to r a nd the gate s pro vid inge ntra n ce into the e levato r were de fective . It may we ll be

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2

in ju ries she did while actively engaged in the perfo rm an ce o f her

du ties , the risk and harm o f that fall wo u ld have been an

in cid en t and hazard Of her employmen t, altho u gh the cau se o fher fall m ight re st in pu re co n je cture and specu latio n . Whenthe in testate fell she was n o t in the active perfo rmance Of her

du ties , b u t was u po n the premises o f the su bscriber and in its

employm ent .” (See Hallett’s Ca se , 232 Mass .

It is an u tter impo ssibility fo r the claim an t to pro ve a ffirma

tive ly all the facts a nd circumstances attending the em ployee’

s

dea th ; and she cann o t show the exact cau se o f his d eath, o therthan the fall into the e levato r pit . She has shown that he waso n his employer

’s prem ises ; perhaps resting fo r a moment o r

tw o fo llowing his ard u o u s wo rk o f d umping the salted ic efrom the tank ; tha t the particu lar place in which he was lastseen was very d ark ; and that he fe ll into the elevato r pit tohis d eath. NO cla im o f seri o u s and wilfu l misco nd u ct ha s beenraised by the Insu rer, a nd n o misco nd u ct o f any kind has be enshown by the evid en ce . The employee ’s in ju ry and death aro seo u t o f a nd in the co u rse o f his employment .The d e cisio n o f the Bo a rd member u po n the qu e stio n o f

d epend en cy is revised to acco rd with the de cisio n o f the co u rtin Freema n ’s Ca se , 233 Mass . 287 . The employee earn ed d u ringthe twe lve mo nths immed ia te ly preced ing the d a te o f his fa ta l

in ju ry a to ta l o f o r a n average weekly wage o f

This amo u nt is compu ted as fo llows : $3 a we ek fo r the firstfo u r weeks o f the fifty-tw o weeks immed ia te ly preced ing thed ate o f the in ju ry ; per week fo r the next thirty-fo u rweeks ; fo r the n ext ten we eks ; fo r the n ext threewe eks, a nd $6 fo r the fu ll week immed iate ly preced ing the

in ju ry . The en tire amo u nt rece ived by the employe e wasco n trib u ted to the su ppo rt o f his mo ther . The expen se s incu rred by the mo ther o u acco u n t o f her so n a re pertin en t o n lyin d etermin ing the fa ct o f d epend en cy, b u t irre leva n t in a sc er

ta in ing the amo u n t o f compen sa tio n to b e pa id a fter the fa cto f d ependen cy ha s been e stab lished . Se e D em b in ski

’

s Ca se ,231 Ma ss . 261 ; Freema n

’s Ca se , 233 Mass . 287. Depend encyis a qu e stio n o f fact a s o f the time o f the in ju ry, at which timethe employee ’s mo ther w a s d epend en t u po n him to the extento f his earn ings . Und er this d ecisio n ,

therefo re , the mo ther is

33

entitled to the m in imum weekly payment o f $4 a week fo r aperio d o f five hu ndred weeks from the d a te o f the in j u ry, su b

je c t to the pro visio n s o f the a c t .

Requ ests fo r find ings a nd ru lings hereto a tta ched a re givenin so far a s they a re in a cco rd with the se ru lings a nd find ings ;otherwise they are d en ied .

DAVID T . DICKINSON .

JOSEPH A . PARKS .

CHESTER E . GLEASON .

JOHN H . COGSWELL.

File d Mo nday, Ja n . 26, 1920, a t 9 A .M.

DECREE OF THE SUPREME JUD ICIAL COURT.

CARROLL, J . Charle s McMaho n w a s killed o n the n ight o f

Sept . 9; 19 18, b etwe e n 6 a nd 7 o’clo ck . At the time o f his

d e ath he w a s fifte e n ye a rs o f age . The d in ing ro om a nd

kitche n o f the re sta u ra n t where he w a s regu larly employed a s

a “b u s b o y

” were o n the se co nd flo o r o f the b u ild ing . In o ne

co rner o f the kitche n there w a s a fre ight e levato r . Its sha ftexte nded from the b a seme n t to the top o f the b u ild ing , and

was gu arded by he avy d o o rs which were su ppo se d to b e clo seda nd fa ste n ed when the e levato r w a s no t at the flo o r . He had

been engaged in cle a n ing a water co o ler situ a ted in a pa ssageway b e twe e n the d in ing ro om and kitche n . At a qu arter past6 , when this wo rk w as fin ished , he w a s se e n b y the he a d

wa ite r, a nd whe n next seen he w a s sta nd ing in the kitchenn e a r the e leva to r . The employe e w ho saw him in this po sitio nstated that she d id n o t know how lo ng he had b e en there ;tha t she we n t from the pla ce where she w a s wo rking to the

sink, ab o u t ha lfway a cro ss the kitche n , a n d re tu rn ed im

med ia te ly, whe n a n o u tcry w as he ard , a nd the d e ad b o dy w a s

fo u nd a t the b o ttom o f the sha ft . It w a s e stima ted that fromo ne to te n min u te s e lapsed from the time he w a s la st see na live u n til the o u tcry w a s he ard .

The u ppe r a nd lowe r d o o rs o f the e leva to r , gu ard ing the

e n tra nce to the shaft , when lo cked o r fasten ed co u ld b e o pe nedo n ly from the in sid e o f the e leva to r . At time s the do o rsfa iled to ca tch as they came to ge ther . When this happened

34

the d o o rs co u ld be opened from the kitche n by d ownwardpre ssu re o n the lower d o o r, a nd if so o pe ned ,

“and it d id no t

o pen all the w ay down to the b o ttom where there was acatch to ho ld it o pe n , it wo u ld clo se o f itse lf . There wasalso evide nce that the catch ho ld ing the do o r ope n “mightno t b e re leased whe n the e leva to r we nt u p.

”The e levato r

o perato r te stified that he fin ished his wo rk at 6 o’clo c k a nd

left the e leva to r in the b a seme nt , and the do o rs o n the se co ndflo o r were clo se d . No o ne te stified the d o o rs were o pe n , a nd

there w a s no evid e nce that the y were lo cked o r fa ste ned .

When the b oy was fo u nd , acco rd ing to the evidence , the e le

va to r was a t the top o f the shaft a nd the do o rs o n the seco ndflo o r were clo sed . It a lso appeared tha t if the e leva to r “

is

n o t stopped right still , it will gradu ally wo rk up o r down ,

which ever w ay the power is .”

If there is any evidence , o r if it c an be ratio nally inferred ,that the emplo ye e fe ll in to the e leva to r we ll while in the co u rseo f his employme n t , e ither b e ca u se the d o o rs were o pen o r he

a ccide nta lly fe ll aga in st them a nd pu shed them ope n , then thefind ing o f the Ind u stria l Acciden t Bo ard mu st stand . It w a sno part o f the employee ’s wo rk to operate the e levato r . Hehad b een instru cted no t to u se o r

“

go near it ,”a nd if there is

n o eviden ce to su ppo rt the find ing o f the Bo ard , o r if o n the

who le evid ence a nd draw ing every re aso na ble inference it c an

o nly b e co n jectu re in wha t ma nner a nd from wha t cau se hem et his de a th, so that the mind is le ft in su spe nse and d o u b twhe ther he w a s a t the time within the sco pe Of his employme n to r a ttempting to u se the e leva to r fo r pu rpo se s o f his ow n ,

a nd where o n e co nclu sio n is as ra tio nal a s the o ther, the n theca u se o f his de a th is a ma tter o f mere spe cu latio n , a nd it ha sn o t b e e n shown , a s requ ired by the Wo rkme n ’s Compe n sa tio nAct , that the in j u ry aro se o u t o f o r in the co u rse o f his em

plo yment . Du b e ’s Ca se , 226 Ma ss . 591 ; Sanderso n’s Ca se ,

224 Ma ss . 558; Savage’ s Ca se , 222 Mass . 205.

E ven if the evide nce showing tha t the d o o rs were clo sed at6 O

’clo ck w a s d iscred ited , the re was n o thing to Show they wereo pe n , a nd u nle ss they we re ope n a t the time o f the inj u ry thefa tality co u ld no t have o ccu rred . The b oy m ay have a c

c id e nta lly opened them by fa lling aga inst them , o r he may

35

have in te n tio nally o pe n ed them fo r the pu rpo se o f u sing the

e leva to r ; b u t Wha t a ctu ally happe n ed o n the evid ence d isclo sed is e n tire ly a ma tter o f co n jectu re .

Acco rd ing to the opera to r’ s te stimo ny, the e leva to r w a s le ftby him in the baseme n t . After the fa tality, it w a s fo u nd a t the

top o f the sha ft . If the employe e a ttempted to Ope ra te it, thepo sitio n o f the e leva to r wo u ld b e a cco u n ted fo r. On the o therha nd , there w a s evid en ce tha t whe n the e le va to r w a s n o t fu llystopped , it wo u ld grad u a lly mo ve in the d irectio n o f the power ,a nd if the Bo ard co u ld a ssume tha t b ecau se o f this the e leva to rco u ld grad u ally mo ve to the top o f the sha ft, it w a s still amatter o f d o u b t wha t ca u sed it to rise . The e leva to r m ay

have b e en en tire ly stopped by the o pera to r. The d irectio no f the power may have b e en su ch tha t the elevato r wo u ld n o t

a scend , a nd o n a ll the evid e n ce it co u ld n o t b e reaso n ab ly infe rred , to the exclu sio n o f o ther in feren ce s , that the e leva to rmo ved from its po sitio n a t the baseme n t by the mere fo rce o f

the power, o r was started by some o n e o ther than the em

ploye e himse lf . Taking a ll the fa cts a nd circumsta n ce s shown ,

a nd d rawing every rea so nable in fere nce , it is n o t d isclo sed inwha t ma nn er o r from wha t ca u se the d o o rs be came o pe n ;n o sa tisfa cto ry explan atio n is give n fo r the lo ca tio n o f the

e leva to r at the top o f the sha ft . Wha t the employe e w a s

d o ing a t the time o r the exa ct ca u se o f the fata lity ca n n o t b epro ved with a ny d egree o f certa in ty . The se are a ll ma tterso f pu re co n jectu re , a nd the claima n t ’s case is no t e stab lished .

Sand erso n ’s Ca se , su pra ; Savage’ s Ca se , su pra ; Du b e

’ s Ca se ,su pra . The ca se a t b ar is clearly d istingu ishable from Vo n

’

E tte’

s Ca se , 223 Ma ss . 56 . As the claima n t ca n n o t re co ver w ehave n o t co n sid ered the o ther qu e stio n s a rgu ed .

D ec ree reversed .

D ec ree for the insu rer .

Filed NOV . 26, 1920.

36

CASE NO . 9877 . (236 Mass .

MARY GLENNON, WIDow o r PATRICK GLENNON (DE CEASED),E mployee .

FRANK JONES BREWERY COMPANY, E mplo yer.

LONDON GUARANTEE AND ACCIDENT INSURANCE COMPANY,Insu rer.

ARISING OUT OF EMPLOYME NT .

Whe re a c o nditio n o f pulm o n a ry tu b e rcu lo sis is pie -existin g a t the tim e o f an in jury ,an d such in ju ry ha sten s the pro gress o f the dise ase to a fa ta l term in a tio n , itm a y b e fo u n d tha t the employee ’

s dea th is d u e to a pe rso n a l in ju ry a risin g o u to f a n d in the c o urse o f his em ploym en t. if the in ju ry which ha sten s the pro gresso f the disease o ccu rs while the em plo yee is en ga ged in his re gu lar wo rk .

Madden ’

s Case , 222 Mass . 487 Crowley’s Case , 223 Mass . 288.

D ISE ASE .

Whe re an in ju ry by be in g thrown from the wago n o f his em ployer ha ste n s thepro gress o f pro -existin g tubercu lo sis which the employee ha d a t tha t tim e , a n d

de a th fo llows , the in su rer is liable fo r dependen cy c om pensa tion u nde r the a c t .

FIND ING OF FACT .

The findin g Of the Industria l Acciden t Bo a rd tha t the em plo yee ’

s dea th fromtube rculo sis , in duced by in ju rie s to his ribs , chest an d b a ck , from b e in g thrownfrom the se a t Of his em plo yer’s wago n , a ro se o u t Of a n d in the c o urse o f his

em plo ym en t , m ust stan d , if the re is a n y eviden ce to suppo rt it .

REPORT OF MEMBER OF INDUSTRIAL ACCIDENT BOARD .

The member Of the Indu strial Accide n t Bo ard appo in tedu nd er the pro visio n s o f Part III , sectio n s 5 a nd 7, chapter 751 ,Acts Of 191 1 , a nd amendmen ts thereto , having he ard the

pa rtie s in the ab o ve-named ca se at Ro om 272, State Ho u se ,Bo sto n , Mass . , a nd 375 So u th Hu n tingto n Avenu e , Jama icaPla in , Mass . , o n Friday, Ju ne 25, 1920, at A .M. , repo rtsas fo llows :Appearances : H . S . Avery, E sq . , fo r the in su rer ; Fred erick

S . De itrick, E sq . , fo r the cla ima n t.This employee rece ived a n in ju ry in the co u rse Of a nd arising

o u t o f his employmen t o n April 25, 1918. The employe r fileda repo rt Of the a cciden t with the Ind u stria l Acciden t Bo ardu nder d ate Of April 26, 1918, giving the average weekly wage sa s $21 , a nd d e scrib ing the o ccu rre n ce o f the in ju ry as fo llows :“While o u r wago n was waiting in line with o thers at cu rb sto ne,a u tomo b ile tru ck (B—19026) d rive n by M . J . Wa lsh, 45 Web ster

7

Ave nu e , stru ck b ack Of wago n ; he lper thrown fromse at , striking spine aga inst hu b Of whee l , then to sid ewalk, mee ting within ju rie s to head .

Compensatio n fo r to tal incapacity fo r wo rk at the rate Of

$14 a we ek w a s pa id to the employe e up to the time o f his

death o n D e c . 27, 1918.

Claim for compen sa tio n w a s filed b y the w id ow o n Feb . 10,

1919 .

Qu e stio n : Whe ther the d e a th re su lted from the in ju riesrece ived o n April 25, 19 18.

It is agreed that the claiman t is the wid ow Of the d ece aseda nd w a s living with him at the time Of his death .

Report of the E videnc e .

John J . Gle n n o n , called by the claima n t, te stified that helives at 10 Ma nsu r Stree t, Ro xb u ry, a nd is the so n o f PatrickGlenn o n ,

deceased . Witne ss rememb ers the d ate Of his father’sa ccid e nt to have b een April 25, 1918. He w a s home o n thatd ay , b u t d o e s no t rememb er the time his father came in .

Witne ss saw his fa ther o n the n ight Of the a ccid e n t a nd o n the

mo rn ing a fter it . Witne ss saw his bo dy b e cau se he ma ssagedhim ; he was b la ck and b lu e aro u nd the che st a nd sid e , hip a nd

b ack o f his neck . Witne ss ru b b ed his fa ther from time to time ,up to the time o f his d e a th . Witne ss n o ticed ab o u t his fa ther’sphysical co nd itio n that he went “

d own hill” a nd never impro ved a ny . He w a s always complain ing ab o u t the pa in in

this regio n (ru bb ing the regio n a ro u nd the che st); he spit upphlegm so mu ch tha t a recepta cle w a s a lways kept near him .

Befo re the accid en t witne ss ’ fa ther was always we ll and wo rkedevery d ay . Witne ss never he ard his fathe r compla in o f a ny

che st tro u b le ; his father was a lways a he althy , ro b u st m an .

Right a fter the a ccide nt he started to go“d own hill ,

”and that

co nd itio n co ntinu ed u n til the time o f his dea th. Witne ss re

members the da te o i his fa ther ’s d eath ; he was home at thetime it o ccu rred, D e c . 27 , 1918.

Cro ss-examined : Up to the time Of the accid ent , witne ss’

fa ther always wo rked stead ily . Asked if his father had evercomplained o f anything up to that time , witne ss sta ted that hehad squ ashed his thumb and hu rt his fo o t, b u t had treatme n t

38

fo r this . The deceased had never complained o f anythingwro ng with his stomach, as fa r as witness kn ows . Witne ss ’

father w as in bed most o f the time after the acciden t ; hewo u ld ge t up fo r, say , abo u t o ne ho u r o r perhaps tw o , and

then go b ack to bed a gain ; he w as in b ed the greater part Ofthe time . Witness , asked if there was n o t a time du ring thesu mmer o r latter part Of the su mmer, that his fathe r wou ld ge to u t aro u nd a nd go d own town a nd also go to Visit o ne o f his

dau ghters o u t in the co u n try, replied tha t he d id this , b u ttha t w as o nly fo r half a d ay o r a few ho u rs . He wo u ld comeback home every time . Witne ss thinks he d id go to Visit hissister and spend an a fterno o n there with her, b u t he never stayedo vern ight . Witn e ss was away part o f the time ; he w a s statio ned a t Camp Devens, b u t he came home o nce a week a nd

some time s twice . Witne ss ’ father was a lways a t home whenwitne ss came to se e him from the camp . Witne ss , asked to

recall that o n Ju ne 15 the d ecea sed came d own to the o ffice Of

the in su ra nce company from his home , replied that he cann o trememb er the date exactly, b u t his fa ther wen t to the Officefo r his check ; he may have go ne o n tha t date . Also , whenasked to re ca ll the d a te that he came again , Ju ly 6 , repliedtha t he m a y have ; he d o e s n o t rememb e r what d a te s hisfather ever came in town fo r his che cks . Witn e ss , a sked ifabo u t Au gu st 7 , whe n his father again came to the Office ,whe ther o r n o t he w a s in the co u n try recu pera ting a sked ifthat might have b e e n , replied tha t he , witne ss , neve r knew hisfa ther to be in the co u ntry ; to have stayed the re fo r a ny

le ngth o f time ; he had take n ride s there . Witne ss ’ sister,whom his father Visited , lived in Brighto n a t the Co u ntryDay Scho o l . She is married , a nd w a s married a t the timewitn e ss ’ fa ther wen t o u t to se e her ; that w a s he r home fo r tha tsummer . Witne ss d o e s n o t reca ll tha t his father came againto the o ffice o f the insu re r o n September 28. Witne ss askedif there was no t a time in which his father improved o r ap

pea red to impro ve , replied tha t some time s he se emed to lo okb e tte r a nd o ther time s he d id no t , b u t he , witn e ss , wo u ld no t

say that he ever really impro ved . Witne ss never rememb ershis father expre ssing himse lf as fee ling b e tter a few we eks after

https://www.forgottenbooks.com/join

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fo rgo tte n ; I canno t te ll yo u b ecau se I d o n o t remember .

Witne ss ru bbed his fathe r every time he came home ; aro u ndthe regio n Of his che st .Re—d ire ct : Witne ss w a s to ld ab o u t the in ju ry ; his fathersaid tha t it happened o n Atlan tic Avenu e , Bo sto n , towards theNo rth Statio n . He was sitting o n a high-se ated . wago n whenan a u tomo bile stru ck it from the re ar a nd knocked him fromthe se a t to the body o f the wa go n and then to the street . Heland ed mo re o r le ss o n his sid e against the cu rbing , and was“ kno cked o u t ,

” be ca u se “when he came to and to o k a lo ngbre a th he fe lt a s if his who le inside s had ripped . After thathe came home an d we nt into the d o cto r ’s fo r some lin ime n t .Re-cro ss : His fathe r came home o n the e le ctric cars ; he did

n o t go to the ho spita l a t the time o f the accid e n t . As far as

witne ss knows , his father came home alo ne .

Thomas W . Mu rphy, called by the cla imant , te stified thathe live s at 478 Se co nd Street , So u th Bosto n ; that he knewPatrick Glenn o n ; a nd that he was the driver o n the te am u po nw hich Mr . Gle nno n w as the he lper . He knew the emplo ye e fo rthree years prio r to his accid en t ; he had

.

wo rked there . He

a lw ays wo rked ste ad ily ; he was always a stro ng and ru ggedm a n ; he w a s that o n the d ay the a ccid e nt happen ed . Hesho u ld think tha t he we ighed abo u t 190 po u nd s , and wasab o u t 5 fe e t 8 o r 9 in che s tall . On the d ay the a cciden t happe ned witness a nd Pa trick Glenno n were go ing alo ng Atla n ticAve nu e b e twe en the No rth a nd So u th statio n s . He was ridingalo ng sid e o f witness . An au tomo bile owned by Walsh stru ckthe te am in which witn e ss a nd Mr. Glenno n were rid ing, kn o cking Mr . Glenno n to the b ody o f the wa go n and then to the sid ewalk. Witness was driving, a nd whe n they we re bumped ”

he he ld o n to the re in s and they saved him from falling . He

stopped the wago n , and whe n he go t o u t, Mr . Glenn o n wassta nd ing talking to a po liceman . I asked him how he felt,and he sa id he fe lt ‘pre tty He d id n o t go o n wo rking ;he wen t somewhere , pro b ab ly home ; witne ss d id n o t se e him

d id n o t se e him at all after that .TO Mr . Do nahu e : Witne ss d id no t ask Patrick Glenno n if he

s tru ck his back when he fe ll ; all he a sked him was how he

fe lt, and he sa id , I fee l pre tty so re . He wa s kn o cked o n his

b ack to the b o dy o f the wago n a nd then to the cu rb ing .

Cro ss-examin ed : As far a s witne ss co u ld se e , he thinksPatrick Gle nn o n fe ll o n his side a nd b a ck . Witne ss d id no t

w o rk with him a ll the time . He knew that Pa trick Gle n no nw a s emplo yed b y tha t company fo r thre e years ; saw him

wo rking there ; and wo rked with him some time s . He w a s

steady a ll the time . Witne ss d o e s n o t kn ow anything a b o u tthe man ’s hab its as to d rinking, b u t wo u ld think tha t he mighttake a glass o f b eer “

no w a nd again ”the same a s a ny labo ring

m a n . Witne ss d o e s n o t know whe ther he d id o r n o t . Witne ssd id n o t stay with him a fter the accid ent , so d o e s no t kn owwhether o r n o t he might have complained o f his che st .D r . Cad is Phipps , called by the cla ima nt , te stified that he is

a practicing physicia n , and tha t he saw Pa trick Glen n o n o n

D e c . 27 , 1918, a t his home . Witne ss , asked as to the ma n ’ sco nd itio n at tha t time , stated , with the he lp Of his repo rt, thatPa trick Glenn o n w a s aged sixty-thre e , a nd married . His o c c upa tio u w a s tha t o f a te amster . He stated tha t he had neverb een sick b e fo re , a nd that he u sed to b a cco a nd a lcoho l inmo d era tio n . His compla int whe n witne ss saw him (D e c . 27 ,

1918) d ated b a ck to April 25, 1918, when his te am w a s stru ckby a tru ck . The impa ct threw him o ver b ackward s so tha t hestru ck his he ad o n the wago n a nd ro lled to the gro u nd . He

w a s picked up a fterwa rd s almo st u nco n scio u s , wa lked up a nd

d own to ge t the life b a ck into him , a s he sa id , a nd w a s takenhome o n the c ar b y a friend . He said that he fe lt a s tho u ghhis ribs were b u rsting whe n he b re a thed . He w a s in b ed

thre e d ays a fter the a ccident , b u t w a s ab le to get up a fter thisa nd go o u t o

'cca sio n a lly . He impro ved somewhat , b u t laterb e came so we ak he had to go to b ed again . He spit up b lo o ds ix we eks b e fo re witne ss saw him (D e c . 27, b u t ha s no t

raised a ny fo r a week prio r to the examin a tio n . He ha s lo stmu ch fle sh, and has had a co u gh since the in ju ry, a lso he wasvery co n stipated . On physica l examinatio n witne ss fo u nd a n

emacia ted m a n who was pro strated . He w a s cyan o tic . Hispu pils d id n o t re a ct to light ; his mo u th a nd to ngu e were d ry ;his he art w a s slightly en la rged , slightly irregu lar a nd showed a

systo lic mu rmu r at apex . Bo th apice s o f the lu ngs d u ll o n the

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le ft side against the le ft lower lo be in back . There were finemo ist rfile s in bo th chests . Abdome n showed nothing abno rmalexcept fo r emaciatio n . E xtrem itie s : NO (e d ema ; knee reflexe sno rma l . Urin e no t take n . Witne ss co nclu ded that the m an

had an advanced pu lmo nary tu be rcu lo s is . If b e in ju red hisrib s at the time o f the accide nt it is qu ite possib le that thein ju ry ha ste ned the pro gre ss o f the d ise ase .

“ I do no t thinkthat it cau sed the d isease , ye t I think that it haste ned the pro gre ss o r excited it . ” Witne ss d id no t see the repo rt o f the

atte nd ing physicia n at that time . Witne ss saw signs o f tu berc u lo sis , a nd there is n o qu e stio n in his mind bu t what theemploye e had that d isea se . Witne ss was to ld that the m an

d ied o n the same d ay that he saw him , and , asked if therewo u ld b e any qu e stio n in his mind whether o r n o t tu b ercu lo siscau sed his d e ath, replied tha t he d id n o t know that the m an

had d ied ju st after he saw him . Asked to assume that Mr .

Gle n no n , the m an witne ss saw , was a m an Of ro b u st bu ild ,

he althy, a nd wo rked right a lo ng a nd had n o sign s o f tu b erc u lo sis , a nd o n April 25, 1918, while rid ing a lo ng Atlan ticAve nu e o n a te am which was stru ck from the re a r by a tru ck,w a s thrown o ff , striking his che st and o ther parts Of his b od ya ga in st the wa go n , a nd then fe ll o n to the stre e t , wo u ld tha tin witne ss ’ opin io n b e su fficie n t to light up a ny laten t germ s o ftu b ercu lo sis tha t might have b ee n in the ma n ’s system ?Witn e ss repl ied , I think it wo u l d b e su fficien t . ” Witne ssthinks that the tu b ercu lo sis might have go ne o n ind efin ite ly ,if there had b e e n n o a ccid e n t, witho u t b e ing lighted u p, a nd

also thinks it is qu ite po ssible tha t the m a n might b e livingto -d ay if n o t fo r his a ccid e nt .

Cro ss-examin ed , witne ss replied tha t whe n he examined the

d ece a sed emplo ye e , Mr . Gle nn o n had some tro u b le with hishe art . There w a s some d ise ase o f the mu scle Of the he art andpro b ab ly a sl ight invo lveme n t o f the valve s o f the he a rt .Witn e ss fo u nd n o thing e lse tha t wo u ld ind ica te a ny o ther typeo f d ise a se . The he art tro u b le that the employee had w a s

simply seco nd a ry to the tu b ercu lo u s co nd itio n . Witn e ss d idno t e l imina te a ny o ther co nd itio n s : he d id no t see any Sign s o rsu gge stio n s o f a ny o ther co nd itio n . Witne ss d id n o t co n su l twith D r . Cu lb ert, the atte nd ing physicia n . The histo ry tha t

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witn e ss Ob tained was given by Mr . Gle nno n ’s wife a nd so n ;

his wife and so n to ld the sto ry and Mr. Glen no n a greed to it .Witn e ss , a sked if he kn ew tha t o nly twe n ty min u te s a fter hehad se e n Mr . Gle n no n that he had d ied , stated that he d idno t know it . Aside from the histo ry o f the case, the things inwitne ss ’ examina tio n that mad e him fee l tha t it w a s a ca se o f

tu bercu l o sis were the marked emacia ted co nd itio n o f the m a n ,

the cyan o tic signs in his che st, a nd d u lne ss, the change fromthe no rmal qu ality o f the b re ath, sign s in the top Of his lu ngs ,a nd b eca u se they were in the top o f the lu ngs , the rfile s whichwitne ss he ard in the che st , and the a b sence o f o ther things inthe physica l examina tio n o f the m an to expla in his ema ciatio na nd pro stratio n . It w a s appa re n t to witn e ss tha t the m a n

was in a very po o r co nd itio n . Witness , a sked if he co u ldd istingu ish the rfile s which he he ard at the time o f his examin atio n as b e ing tu b ercu lo sis rfile s from tho se that might re su lt ina m a n tha t w a s a s near d e a th a s Mr . Glenno n w a s , repliedthat they d id n o t su gge st to him the rfile s tha t come prio r tod e a th . Witne ss , asked if there mu st have b ee n rfile s b e fo red e a th, replied tha t it d epe nd s u po n the way a perso n d ie s .Wha t witne ss he ard were d iffere nt from the de a th Ifile s .

Witne ss ’ re co llectio n is cle ar eno u gh so tha t he wishe s to goo n re co rd that the rfile s he he a rd a t the time o f his examin a tio nwere d iffere n t from the d eath rfile s . The rfile s which witne sshe ard were fine , mo ist rfiles in st e ad o f the co arse rattling Tale s

o f d e ath . Witne ss he ard n o co a rse rfile s . Yo u ge t ma rkedoed ema in the lu ngs in appro a ching d e a th. The cyano ticco nd itio n to which witne ss re fers is the d isco lo ratio n d u e to

po o r circu latio n o r po o r e n tra nce o f o xyge n in the lu ngs . Itm ay b e d u e to e ither co nd itio n . It might b e d u e to the po o re ntra nce o f o xygen into the lu ngs o r po o r circu latio n ; itmight also be d u e to the po o r e ntrance o f o xyge n into the

lu ngs b eca u se o f a co nd itio n o f po o r circu la tio n . The cyano ticco nd itio n is n o t nece ssarily ind icative o f tu bercu lo sis ; it mightb e cau sed by o ther co nd itio n s, a nd it d o e s n o t ne ce ssarilyind icate a tu bercu lar co nd itio n . The ge nera l pro stra ted c o n

d itio n wo u ld b e fo u nd in a ny o n e a s near d eath as this m a n

w a s . Witne ss d o e s no t a gre e with the sta temen t that the o n lything in his examinatio n that led him to d iagno se tu bercu lo sis

44

was the kind o f rfile s that he fo u nd in the che st ; it was allthings comb ined . One alo ne is n o t su fficie nt u po n which to

b ase a diagn o sis o f tu b ercu lo sis . Three things are emaciatio n ,

pro stratio n a nd the cyano tic co nditio n o f the chest . Theysu ggest tu b ercu lo sis, b u t n o t e no u gh to give it as a diagn o sis ;the fo u rth po int is the fine , mo ist rfiles , to ge ther with du lne ssa nd change in b reathing in top a nd bo ttom Of lu ngs . Witne ss,asked if the change in b reathing might no t have come fromappro aching d eath, replied that in the tw o lo catio ns (top a nd

b o ttom o f lu ngs) it is po ssib le b u t impro b ab le ; it may a nd

m ay no t . As far a s the histo ry o f the case is co n cerned , thething which impre ssed witne ss as being ind icative o f tu b erc u lo sis was the spitting up o f b lo o d . Witne ss d o es no t thinkthat he got a de scriptio n o f the b lo o d . As a re su lt o f a c o n

d itio n o f tu b ercu lo sis a perso n might spit up some clo ts o f

b lo od , a fre sh hemo rrhage o f b right red b lo o d , a nd spu tumstreaked w ith b lo o d , either d ark o r light . There are o therd iseases resu lting in the spittin g up Of blo od in some fo rm o r

shape, amo ng them being u lcer o f the stomach, cancer o f the

stomach, ca ncer o f the lu ngs , pneumo n ia, varico sities o f the

esophagu s, a nd b leeding to n sils o ver a ny o ne Of the respirato rytra cts . Witne ss, asked if spitting o f blo o d w a s a markedsymptom o f tu b ercu lo sis, replied , If I u nderstand yo u rqu e stio n , it is very su gge stive ; w e wo u ld a lways think tha t .”

Witne ss wo u ld no t eliminate a ny o f these o ther dise ase s tha tare accompan ied by the raising o f b lood en tire ly . In this casethe spitting o f b lo o d was accompa n ied by a co u gh. Witne ssco u ld n o t give a d e scriptio n o f the kind o f co u gh, merely thatthe m a n had had it since the in jury . Witne ss d o e s no t re ca llthat he inqu ired into the kind o f co u gh tha t the m an had ;

he spared the m a n as mu ch as po ssib le . Lo ss o f weight a nd

stre ngth are ind ica tive o f tu b ercu lo sis in this ca se , b u t are

a lso indicative o f a ny deb ilita ting disease . Witn e ss co u ld no t

give figu re s a s to the man ’s lo ss Of we ight ; he might have

go t some figu re s from the so n , b u t he d o e s no t rememb erpu tting them d own . If the m a n we ighed 195 po u nds in April ,whe n inju red , a nd -o nly 146 o n Au gu st 19 , witne ss wo u ld thinkit wou ld b e very su ggestive Of tu bercu lo sis . Asked if o n

Septemb er 1 , ab o u t tw o weeks a fterward s, he weighed 157 as

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again st the 146 o n Au gu st 19 , and o n Septemb er 7,that wo u ld have a bearing o n the d iagno sis of tu b ercu lo sis,witn e ss replied that perhaps the tu b ercu losis had qu ie teddown . If it had qu ie ted d own it wo u ld seem tha t the m a n

had b egu n to recover from it . If the man ’s weight w a s 195 inApril , o n Au gu st ~ 19 , 146 , Septemb er 1 , 157, and Septemb er 7 ,165% po u nd s , asked if he wo u ld say that either the tu b erc u lo sis was no t a facto r in his d isease or cau sed his tro u b le, o rthat whatever effect the in ju ry had upon the tu b ercu lo sis hadceased , witne ss wo u ld say that the m an was recovering from it .If the m a n had a change in co nd itio n after that which re

su lted in his death, witness , asked if he wo u ld say that someo ther facto r had come in to the case , replied that som e o therfacto r had com e in to the case n o t some o ther d ise ase , b u tsome o ther d e cided thing, ju st a s this inju ry may have b ee nthe thing that started him fo r a time “ down hill .” Assumingthe fa cts that witness ha s b e en to ld as to the man ’ s we ight atvario u s time s, it wo u ld b e pretty hard fo r witn e ss to say thatthe in ju ry in April was ‘

the cau se o f the man ’ s su b sequ en tdeath.

Re-d irect : Witne ss , asked if he had ever known o f case s Oftu b ercu lo sis where the patie n t co u ghs, spits up blo o d , go e s d owmfo r a while , lo ses we ight, a nd then in some way regain s we ight,go e s d own again and die s , replied that he had .

To Mr. Do nahu e : Witne ss ha s had experience with tu b erc u lar patie n ts ; how mu ch, it wo u ld b e pretty hard to say, o r

give figu re s , b u t he ha s d evo ted a go od deal o f his time fo rte n o r twe lve years to examin ing lu ngs and che sts . He ha s

had experie nce with tu b ercu lo sis in his ho spital wo rk . Witne ssspe cia lize s in internal med icine , a nd ha s been co n nected withthe Bo sto n City Ho spital fo r e ight o r n ine years, and ha s hada great numb er Of cases Of tha t n a tu re .

John J . Glenno n , recalled by the claiman t, sta ted that D r .

Phipps came to exam ine his father ab o u t o r

b e twe e n that time ; his father d ied at almo st PM . Itw a s five a nd o ne -half ho u rs a fte r the do cto r saw him ; no t

twe n ty min u tes .D r . Frank A . Gardner, called by the in su rer, te stified that

he is a physician and su rge o n . He was in general practice in

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Pea b ody a nd Salem fo r a n umb er Of ye a rs, a nd ab o u t five yearsago retired from ge n eral practice a nd came to Bo sto n asexamin er o f the treatme n t o f a nd co rre ctio n o f d isab ling inju rie s . Witn e ss had charge o f a tu b ercu lar ho spital , and w a s amed ical inte rns in charge Of a ho spita l d u ring his sen io r yearin med ical scho o l . Fo r many years witn e ss ha s give n a greatd e a l o f attentio n to d isease s Of the heart and lu ngs . Witne ss ,at the in su re r’ s requ e st , examin ed a m an named Pa trickGle nno n , and saw him several time s . Witn e ss first saw the

employee o n May 25, 1918, ju st ab o u t a mo nth afte r the

accid en t . He saw the m an a t the o ffice o f the in su re r o n thatd ate and examin ed him . At that time the m an was compla ining o f his b ack the lowe r pa rt o f his b ack . There wastend e rness o n to u ch o ve r the right sacro iliac re gio n , b u t ap

pa rently no t very severe . He stated he was fe e ling a littleb e tte r. At tha t time witne ss saw no tro u b le with the lu ngs ,a nd heart actio n seemed go o d at the time . Diagno sis wassacro iliac strain o f the right sid e . He was co ntin u a lly impro vin g a t the time witne ss saw him . The se co nd e xamin a tio nwas mad e o n Ju n e 15, 1918, whe n he called at the Office . He

to ld witne ss that he fe lt very mu ch b e tter a nd that he wasgo ing in to the co u ntry to re cu perate . On Ju ly 6 , 1918, he cameagain , stating that his b ack was mu ch better. Witne ss fo u ndimpro veme nt u po n examin atio n . On Au g. 7 , 19 18, witne sssaw him aga in . At that time the m a n sta ted that he w a s in

the co u n try re cu perating a nd had come in to see witn e ss , whoad vised him to re st a while lo nger a nd then come in aga in .

Du ring this time the m an was ge tting better, a nd had le sstend ern e ss o n to u ch o ve r the sa cro iliac line whe re mo st o f

his tro u b le had b e en . Ab o u t six o r seven weeks later, Sept .28, 1918, witne ss saw him again , a nd at tha t time he was mu chb e tte r . Witne ss saw him again o n Nov. 9 , 1918, when he wasu nab le to come in a nd wro te fo r his che ck .

To Mr. Do nahu e : The le tter w a s n o t sen t d ire ctly to witne ss ;it was se nt to the company add re ssed to the compa ny. Witn e ss happe n ed to have that in his re co rd b e cau se he had se e nthe m a n at the o ffice o f the compa ny, and he se n t in wo rd thathe co u ld n o t come in to see witne ss, and asked that his che ckb e fo rward ed to him .

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him u ntil the end , o f a c o u gh, o r complain ed Of a co u gh o r o f

any special pain in his che st . His pain was in the b a ck a nd the

hip. Witne ss stated that he fo u nd n o evid en ce in his examinatio n s o r had no histo ry which he go t from the patien t thatwo u ld ind icate to his mind that the m an had tu b ercu lo sis .Witne ss d o e s n o t be lieve that the m a n had tu b ercu lo sis fromwhat he saw o f him from tim e to time . When witne ss first sawthe employee he d id n o t weigh him . At the la tter part o f thetime he came in he lo o ked better and was c o ntinu a lly impro vinga nd gain ing in we ight . That w a s in Au gu st , 1918. Witn ess d idexam ine the employe e ’s lu ngs , b u t fo u nd n o rfile s ind ica tiveo f tu bercu lo sis, n o r a nything e lse ind icative o f tha t d isease .

If tu bercu lo sis cau sed the employee ’s d eath o n D e c . 27 , 1918,

witne ss , asked wha t wo u ld he say as to the time when the

tu b ercu lo sis e ither lighted up o r began from the examinatio n sthat he had mad e , replied that ,

“ It began between the time Isaw him last and the time o f his d eath.

” Witness , whe n askedif in any o f his examinatio n s he fo u nd any malignan t co nd itio no f any kind , replied that when he saw the employee the lasttim e it was n o t cle a r to him ju st what might have o ccu rredto cau se that re cu rren ce o r new co nditio n o f the severe painthat he had . The fa ct that he had raised a la rge lump o f b lo o dwhen he had that pa in led witn e ss to be lieve that in the casethere was some co nd itio n o ther tha n the sacro ilia c straino ther than the strain o f the b ack .

Cro ss-examin ed , witne ss stated that he saw this employeee ight o r te n time s , a nd that u po n examinatio n he remo ved theemployee ’s clo the s from particu lar parts o f his b o dy . He

examined the employee ’s lu ngs , b u t d id no t examine his u rineo r the c o ntents o f his stomach. Witne ss never ca lled in a

specialist to examine Mr. Glenno n with him ; he tho u ght theman was getting b etter. He n ever called a ny o ne e lse in . IfMr. Gle nn o n was su ffering from some o ther d isea se o r fromany internal co nd itio n ,

witne ss d id no t d isco ver it d u ring thatsummer, b u t u po n his la st examina tio n he d isco vered evid en ceo f o ther tro u ble . Witne ss asked the employee if he had

strain ed himse lf in a ny way . This was o n No v. 1 1 , 1918, the

last time witne ss saw the m an . Witne ss d id n o t ca ll in a n

expert o r ask the employee to su bmit to an X-ray examinatio n ;

49

mere ly go t in tou ch with the do cto r in the case , as is the pro perway to pro ceed . Witne ss repre sen ted the in su rance companyin m aking the se examination s . From the date o f witn e ss ’ lastexamin a tio n (No vemb er 1 1) u ntil the d ate o f Mr. Gle nn o n ’ sdeath (De cemb er seven we eks afterward , witne ss d id no t

talk to any o ther physician o r requ est an X-ray examinatio n Of

Mr . Gle nno n . The d o ctor d o e s no t believe that this m an had

tu bercu lo sis, b u t he examined him fo r that disease . Witnesslistened to the man ’s breathing a nd tried his chest fo r evidenceo f rale s o r local d u ln e ss in the lu ngs . This was at the man ’ shome o n Nov . 1 1 , 1918 b u t he ha s n o t the fact that he ex

amined the man ’ s lu ngs In his no tes . Witne ss has in his note s,dated May 25, 1918, that he examined the man ’s lu ngs, b u texaminatio n fa iled to show any tro u ble with the lu ngs, a nd

heart actio n seemed go od at the time o f this examination .

This was o ne mo nth after the o ccu rren ce o f the acciden t .Witn e ss examined the man ’s lu ngs at his home o n Nov. 1 1 ,

1918, b u t he d id no t pu t it in his note s . Witness , asked ifthere was anything e lse that he did at the ho u se examination ,

replied that he mad e variou s examinatio n s as to the amo u n t o fb ending , o n postu re , mo ving, e tc . , in o rd er that he co u ld seewhat the m an cou ld do in the way o f bending , b u t thesemovemen ts are all re co rded in his n o tes . Witne ss did examinethe man ’s lu ngs o n Nov. 1 1 , 1918, b u t it is no t reco rd ed inhis no te s .At this po in t Mr . Do nahu e lo oked over the no tes tha t the

witne ss had .

To Mr . Do nahu e : The on ly no te in witn e ss ’ ow n handw ritingwas that Of May 25, 1918. The o the rs were copie s Of o riginalsthat he made fo r the in su rance compa ny . His practice is tomake three copies, o ne fo r himse lf a nd tw o fo r the in su rer . Thenotes that he ha s we re all e lab o rated from no te s that he tooko n small cards while making the examinatio n ; they we re en

larged la ter. It is witness ’ pra ctice to d o that o n the same dayas the examinatio n is he ld , if po ssib le .

Fred Stahl, called by the in su rer, testified that he is an

ambu lan ce driver fo r the Pe ter Ben t Brigham Ho spital , a

fou rth-year stu d en t attend ing Harvard Medical Sc ho o l , and

he has b e en delegated by the ho spita l to come to co u rt and readthese re co rd s .

50

Apri l 99 , 1918. Glenn on,Pa trick ; age : 65 ; ma rried ; white . Ad

d ress : 10 Mansu r Stree t, Roxbu ry. Oc c upa tion : La b orer. Pa tien t was

in ju red a t w ork . Nam e o f employer: Frank Jones Brewing Company.

Addre ss : 21 Lewis Wharf, City. Na tu re o f a c c iden t : Was pitched from a

w agon hit by au to ; in ju ry to head and right hip; happened April 25,1918

,a t A .M . Pla c e o f a c c iden t : Atlan tic Avenu e , City . Bro u ght

to ho spita l : Alo ne . Treated by D r. Saeger.

OUTDOOR DEPARTME NT RECORD .

J an . 3,1916 . So re left fo o t ; a t wo rk on Thu rsd ay

,D ec . 30, 1915 .

Signed GWRS.

Jan . 5,1916 . This pa tien t had a c on tu sion o f left Shin and a lso

varic o se ve ins o f the left leg and a lo t o f e c chym o sis . Trea tm en t : Bo ric

Oin tm en t and pressu re b andage .

Jan . 7,1916 . Sam e trea tm en t slightly improved .

J an . 8,1916 . Sam e trea tm en t grea tly improved .

J an . 1 1,1916 . Sam e trea tm en t improved .

J u ne 13,1917 . Jamm ed left thum b in d o o r. Three d ays ago d oo r

slamm ed o n left thum b pro du c ing a la c era te d w o u nd a b ou t tw o c en ti

m ete rs in length over pa lm a r a spe c t ; slightly so re .

Physic a l exam in atio n : La c era ted supe rfic ia l w o u nd over pa lm a r a spe c t .

Finger is sw o llen,som e e c chym o sis with c repita tion in se c o nd pha lanx.

Trea tm en t : D ry b and age . X-ray show s c omm inu ted fra c tu re, gu tte r tin

splin t . Diagn o sis : Frac tu re o f thum b .

Apri l 99 , 19 18. In su ra n c e c a se . In ju red a t w o rk o n April 25,1918.

On tha t d a te a u to hit wagon ,throw ing him Off the team

,and in ju ring head

and right che st . In ju ry to head a little so re,b u t d oe s n o t b o ther him

m u ch. Ha s c on stant soren ess in hip,b u t n o pa in s . Physic a l exam ina tio n :

Co n tu sio n o f right hip. Trea tm en t: Strapping . Ro en tgen repo rt,No .

10215. Patrick Glenn on ,su rgic a l , 25345. Date : Ju n e 13

,1917 . There

is a very la rge c omm inu ted fra c tu re o f the d ista l pha lanx o f the left firstfinger. Ro en tgen repo rt

,NO . 25345. Ou td o o r Departm ent . Ju ly 13

,

1918. Pa trick Glenn on . There w as c on sid erab le de lay a t the third po rtiono f the esophagu s aggravated by the taking o f so lid fo od . Flu ro sc opic a lly

w a s u n ab le to n o te irregu la:ity in o u tlin e and b arium . The stom a ch w as

high , n o rm a l in to ne and o u tlin e . Perista lsis was ra ther vigo ro u s . There

was n o gastric stasis . A go o d sphin c te r and first po rtion o f the du od enum

w ere see n . Ileum w as appa ren tly n o rm a l,and a t the end o f six ho u rs the

b arium c o lu mn had rea ched the hepa tic flexu re . The c ec um w a s n o rm a land appendix w a s n o t se en . Aside from the Slight lo oping o f the splen icfiexu re and d e sc ending c o lon the la rge b ow el w as n o rm a l . Wa s u nab le toge t a satisfa c to ry pla te with the b a ri u m in the esophagu s , as the la tte remptied to o rapid ly. It su ggests irregu larity a nd is prob ab ly o rganic .

“ I w ill try to Ob ta in ano ther pla te .

”(McCarthy).

Ju n e 16,1917 . Wo u n d slightly infec te d . Cleane d w ith a lc oho l .

Treated w ith amm onia te d m erc u ry dressing. Splin t.

1

Ju ne 20, 1917 . Do ing well . D ry d ressing.

J uly 5 , 1917 . Clean and go od . Fa irly goo d fu n c tion ,b u t Slightly

stifi . Discharged w itho u t splint.

Sept. 6 , 1918. So re left foo t. The leg is ma ssively oedemato u s . There

is m od erate oed ema o f right ankle . Left leg shows d ila ted va rico se vein s .

Tight fla nn e l bandage applied and patient instru cted in its u se .

Sept. 14, 1918. Treatment: Patient m ea su red fo r Co rliss sto cking.

Oct. 9,1918. Rec e ived Co rliss sto cking.

October 31,1918. Medica l 25345. Patrick Glenn o n . Temperatu re ,

98. Pu lse , 80. Weight, 179 . Ha s a pa in in stoma ch and ha s had it fou rw eeks a constant pa in ; hu rts to d raw a deep breath . Seems wo rse

after ea ting. Co u ghs and vomits in mo rning ; gets u p a little b lood,

bu t no t every m o rning. Ha s qu ite a b it o f ga s . Appetite seems good ,b u t he can

’t ea t b eca us e o f pa in . Is very constipa ted . Pa in is mostly

on swa llow ing. Past histo ry : Do esn’t reca ll any illness . Throa t, n ever

so re . Card io-respirato ry, no symptoms . Ga stro-intestinal , a s stated .

Kidney , no symptoms . Genito-u rinary, no trou b le . Blood pressu re , 140systo lic , 85 d iasto lic . Pupils equ a l and rea c t to light and d istan c e . Teeth

,

genera lly cario us . Thro a t, negative . Hea rt, 1 1 c entimeters to the lefto f the mid ste rna l line . Blowing systo lic m u rmu r b est heard over apex.

Lu ngs , negative . Abdom en , dou ghy , tender ju st below a quite prom inentxypho id . Knee jerks , Westpha l’s phenom . Varico se veins on left lowerleg. Urine

, spe c ific gravity 1017. Su ga r and a lbum en negative . Signed

D re . C. W . Swartz and West. Patient gives a histo ry su ggesting card io

spasm . Some shortness o f b reath on exertion . Heart, som ewhat enla rged ,12 c entimeters to the left, so ft b lowing systo lic m u rmu r at apex transmittedto axilla . Oc casiona l extra systo les . Advise ga stric ana lysis . Po ssib lyX-ray la ter.

Nor. 1,1917 . Ga stric ana lysis . Fa sting contents . Oc ca siona l free

HCl,12 to ta l . Spec imen I , 30 HCl , 63 to ta l . Spe c imen II, 25 HCl , 62

to ta l . Spec imen III, 10 HCl , 25 to ta l . Blood present in all spec im en s

Nov. 9,1917 .

-X-ray .

Nov. 3 , 1917 .

—Tempera tu re , 97 . Pu lse , 80. X—ray repo rt no t u p.

Re tu rn Monday o r Tu esday .

Nor. 5, 1917 . Eleventh m onth, Sec ond day . Flu o ro scopic exam ina

tion : Barium pa sses d own the esophagu s in no rm a l m ann er to a po in tabo u t 3h in ches a bove d iaphragm where there is m et an ob stru c tion with

sha rp angula tio n o f shad ow anterio rly. After som e heaping o f the ma teria lit pa sses read ily aro u nd the ob stru c ting ma ss and into the stom ach .

Stoma ch apparently no rma l . Du od ena l cap no t seen . P .M . : Afterfive ho u rs stoma ch empty. A sma ll am o u nt o f b arium still present at po in tOf Ob stru c tion in eSOphagu s . Plates confirm flu o ro scopic exam ina tion

Showing Obstru ction w ith sta sis and d istention o f esophagea l cana l . Probab ly carc in oma o f the esophagu s . Temperatu re , 99 . Pu lse , 64. Patientto ld tha t he ha s wha t is prob ab ly a growth on his gullet, b u t so long a s he

52

can eat 0 . K . ,no operation . Will repo rt later on if he gets in to tro u b le .

Pho ne num b er is o n ca rd . WRK .

May 13 , 1918.

—Tempera tu re , Pu lse , 76 . Do esn ’t vom it

,bu t

regu rgita tes food . Thinks he is ho ld ing his own . Ju st ha s constant so re

ness b elow low er end o f ste rnum . Is ea ting so ft food , and while he ha stro u b le in getting it down ,

he ha s lo st bu t 3 po u nds the pa st yea r. To

retu rn Wednesday to see D r. Ja c o bso n a s to advisa b ility o f opera tion .

May 15 , 1918. Pa tient says tha t he fee ls a ll right now and that he

ha s go tten over his co ld and b ro n chitis . Ate this mo rn ing three eggs ,

plenty o f to ast, som e m eat and po ta toes ; says he does no t vom it any food ,b u t spits up c o nsid erab le phlegm . Be lches a good d ea l o f gas . l a st

Novembe r had som e d iffic u lty in sw a llow ing so lid food when he had

b ro n chitis . X—ray pla tes a t that tim e su ggest neopla sm o f the esophagu s ,w ith cessa tion o f this respira to ry d istress . He ha s felt a ll right, ea tingeverything w itho u t any vom iting u ntil a bo u t a week ago , when he says heb ecam e

“sto pped upw ith c o ld ” and fe lt a so re

,tende r a rea in lower po r

tion o f his throat on swa llowing so lid ma teria l . NO tro u b le w ith liqu idso r so ft so lids . At the present tim e is ea ting everything, from liqu id s toso ft so lid s , w itho u t any d iscomfo rt . Be lches co nsid era b le ga s and is

somewhat tro u b led w ith co nstipa tio n . Ha s lo st o nly a bo u t 3 to 4 pou ndsd u ring a yea r and a ha lf. Is to have X-ray pla tes o f the esophagu s aga inin case o f fu rther tro u b le .

July 1 1 , 1918. Pu lse , 90. Pa tient now ha s a severe

pa in in low er pa rt o f right chest over ga ll b ladd e r, bu t appa rently no t

c onnected w ith ga ll b ladd er. Pa tient has lo st 20 pou nd s sin c e the la st

fo u r weeks . Physica l exam ina tion : N0 change . N0 ma ss pa lpab le .

Re pea t b ismu th stud ies . WRK .

Ju ly 19 , 1918. There is no no te .

Ju ly 13 , 1918. Tempera tu re , 97 . Pu lse , 78. We ight, 165 po u nd s .

Ju ly 16 , 1918.

— Tempera tu re , 98. Pu lse , 80. Patient fee ls improved asfa r a s his pa in is co n c erned , bu t feels qu ite weak . .Is a b le to ea t very we ll .Ea ts c erea ls , m ilk, eggs, etc . IS u nab le to eat so lid food . To keep upd iet .

Retu rn in two d ays fo r X-ray repo rt .

J uly 19 , 1918.

— Tempera tu re , Pu lse , 104 . Two days ago spit u prather a la rge c lo t o f b lo od ; sin c e then ha s fe ltmu ch b ette r. Fee ls stro ngerand appe tite is m u ch better. Hem oglob in , 80 pe r c en t. Trea tm ent sam e .

Au gu st 9 , 1918. Tempe ra tu re , Pu lse , 72 . We ight , 155 pormd s .

Pa tient felt a ll right u n til yesterd ay. Ab le to take so ft food witho u t

d iffic u lty. Yeste rday vom ited everything he to ok . N0 b lo od . This

m o rn ing managed to ea t a few m ou thfu ls o f o atmea l , bu t vom ited it . In

a few m inu tes w a s ab le to keep som e o f it d own . Patient d id manage to

keep d own an eggnog yesterday. Treatment : To take sma ll am o u nts o ffood a t frequ ent in terva ls . Patient ha s lo st 12 po u nd s in three weeks ,a c tua lw e ight . Re tu rn to -m orrow afterno on fo r Ob serva tion . Ga stro stomy.

Oct. 9,1918.

— Temperatu re , 99 . Pu lse , 80. Weight , 155 po u nds . Is

getting wo rse and lo sing w eight. Lo oks pa ler and thinn er tha n befo re .

53

Ta lked qu ite pla inly to pa tient abo u t fu tu re ou tlook, and he is wi lling totry opera tion S. O . S. (if ne c essa ry). Trea tm en t: Atrophin su lpha te.0005, one o u n c e tw ic e and three tim es a day . To try o u t fo r spa sm .

WRK . Referred X—ray n ext tim e if no relief. Seems d efinite ly ca rc in omasom ewhere .

Oct. 5 , 1918.

— Temperatu re , 97 . Pu lse , 76 . Same . Ga s is wo rse .

Atrophin su lpha te .0005 a lso soda b ica rbona te 50, a c . powd er 20,mag. ox. (m anganese oxid e) a d ram three tim es a day (z . t . i .

MMS.

Witne ss stated tha t this is the o n ly re co rd that he ha s .

There is o n e X-ray o f the stomach that ha s been d e stroyed ;witn e ss ha s all o the rs . Witn e ss d o e s n o t kn ow when thisstoma ch X-ray w a s taken . (The X—rays were shown .)D r. Robert R. Cu lbert, called by the in su rer, testified that

he ha s b een in gen eral practice fo r abo u t thirty years, a nd tha this o ffice fo r the last three years ha s been at his home , 373So u th Hu ntingto n Aven u e , Jama ica Plain . He is a grad u ateo f the Un iversity o f Vermo nt . Witne ss ha s d o ne ho spital wo rkin New Yo rk and Bo sto n . AS a general practitio ner, witne ssha s ha d some experien ce with tu bercu lo sis . Witn e ss saw the

employe e , Patrick Glenno n , o n May 27, 1918. At that timehe cam e to witne ss complain ing o f pain in his stomach w ithvomiting abo u t tw o weeks previo u s to his coming to se e witne ss .Distre ssed fee ling after eat ing, a lso with eru ctatio n and liftingo f gas, and co n stipatio n . Witn e ss examin ed him o n tha t date ;his we ight three mo nths previo u s to that tim e had be en 190

po u nds, b u t u po n physical exam inatio n , witne ss fo u nd the

pre sent we ight to b e 168% po u nd s . His heart had a very so ftsysto lic mu rmu r . The liver w as en larged . E xam inatio n o f the

ab d om e n negative ; his u rin e w a s clear, high co lo red , b u t c o n-i

ta ined n o album in o r n o su gar. There was jau nd ice . Ju ne5, 1918, witne ss did n o t take the patien t ’s pu lse and temperatu re at this time . X-ray w a s taken o f the gastro -in testina ltract, b u t it was n egative ; no thing fo u nd . He was still c ompla in ing o f so rene ss o f the stoma ch, a nd his bowe ls were stillco n stipated . Ju ne 14, 1918, he was still complain ing o f someso ren e ss in the stomach, b u t fee ls some improvement . Hiswe ight was he was gain ing a little we ight . His lu ngswere 0 . K . Witness fo u nd no thing the matter with his lu ngs .

His liver was enlarged a nd abd omen was n egative . His eyes

54

were clea r. The heart had a so ft systo lic murm u r. (Thesevisits were at w itness ’ Ofi c e .) Ju ne 21 , 1918, pa in in stomachw as go ne , and patien t w a s c omplain ing entirely o f soreness inlower point . Ju ne 28, 1918, he w a s still complaining o f so renesso f the stomach. Ju ly 1 , 1918, pain in stomach better, pain and

soreness referred to seventh rib below n ipple. Ju ly 6, 1918,he was fee ling better. Ju ly 10, 1918, his weight w as 164}po u nd s. The next visit w as Ju ly 27, 1918. He sta ted he wasfeeling first ra te since la st visit up to last Thu rsd ay (fo u r daysprevio u s to his coming o n Ju ly Since then ha s pain inlower ribs , right side , pit o f stomach hu rts slightly, took a fu llbreath a nd lifted up gas . Weight , 164 witho u t vest . Heart, amitral mu rmu r. Liver enlarged . Chest, negative . Lu ngs,negative . Au g. 10, 1918, he was no t fee ling any better ; hevomited twice. Has a little pa in in pit o f stomach, mu scu larweakn ess . We ight, 155. Heart , a mitral mu rm u r, b u t it w asd o ing its wo rk . Liver, edge fe lt and it is sharp bu t smooth.

Au g. 19, 1918, so reness, eru ctatio ns , vomiting, also raising o f

blood . We ight , 146% po u nd s . Au g.. 26, 1918, he was fee ling

mu ch better. Pain go ne, vom iting stopped , and his we ight was157 po u nd s . Sept . 7, 1918, he was feeling mu ch better ; we ight

So rene ss mu ch less, n o severe pain , and ha s practicallyno eru ctatio n s . Oct . 12, 1918, witness was called to see him atthe ho u se . He had vomited co n sid erab le blo o d at 6 AM . Hisheart was irregu lar a nd in termittent . Nov. 1 1 , 1918, ha s had

o n ly a co u ple o f attacks o f ra ising blo o d since . Fe e ls a littlebetter. Heart has started to im prove . This was the last o f theno te s that witn e ss mad e . Witness saw the employee o n severa lo ccasio n s from Nov. 1 1 u ntil Dec. 27, 1918, the date o f the

man ’s dea th, b u t mad e n o no tes . On November 1 1 the man ’sheart had become irregu lar a nd begu n to break d own , a nd he

had evid en ce o f what med ica l m en term no n-c ompensa tio n ,

and oedema o f the lu ngs, like dropsy Of the lu ngs . He grewweaker and weaker, and the dropsy set in the abd omen . Hesu dd en ly died from heart failu re. Witness du ring the time hesaw him and attend ed him fo u nd no evid en ce o f tu bercu lo sis .Cro ss-exam ined, witness saw n o evid ence whatever o f can cer .

Witne ss, a sked if o n Ju ly 1 , 1918, he complain ed o f soren e ss inhis b reast near the n ipple , replied that it was o n the right

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death. He saw n o evid en ce at that time Of anything o therthan what he ha s stated . Witn e ss examin ed the man ’s lu ngso n his last vi sit ; he a lways mad e a general examinatio n o f the

m an . He listen ed to his lu ngs a nd hea rt , and examined hisa b d om en . His fam ily kn ew tha t the m an wa s n o t go ing tolive . Witne ss had to ld them that abo u t No vember 1 1 , whenhe was called to se e him at the ho u se and when he had vomitedup b lo od and his heart broke d own ; witn e ss to ld the familythat “ that was the b eginn ing o f the end .

” Spitting up o f

b lo o d , and gen eral weakn e ss a nd lo ss o f we ight are symptom s

o f tu bercu lo sis . On May 27, 1918, the m an we ighed 168%po u nd s ; o n Ju ne 14, 1693} po u nd s ; Ju ly 10, 166} po u nd s ;Ju ly 27, 164 po u nd s witho u t ve st ; Au gu st 10, 155 po u nds ;Au gu st 19, 146i po u nd s ; Au gu st 26, 157 po u nd s ; he wasgain ing here . Witne ss , asked if it were a tru e fact that intu bercu lo sis some patien ts will go d own hill a nd then regainc o n sid erab le and then drop aga in , replied it is .To Mr. Do nahu e : Witn e ss a cco u n ted fo r the l l -pou nd gainfrom 1461 On Au gu st 19 u ntil the 157 po u nd s o n Au gu st -26

by the fact that the m an had re spo nd ed to the treatm ent andthat he co u ld e at a nd thereby pu t o n we ight .

D r . Timo thy Leary , called by the in su rer, testified that heha s talked with D r. Cu lbert a b o u t this ca se , b u t the d o cto r

’

s

n o te s were n o t available at tha t time , and so he ha s no t heardthem read . At P .M. o n De cember 27, the date o f the

employee ’s death, witne ss was n o tified that d e a th had o ccu rreda nd that there had b een a n accid ent . It is requ ired by lawthat in a ll case s in which d ea th ha s in a ny way re su lted froma moving vehicle , o r where a claim is mad e tha t d eath wascau sed by a moving vehicle , a med ical examiner makes su chinqu e st . Witne ss visited the ho u se and mad e a view o f the

b ody . Witness d id no t make an au topsy, b u t he go t a histo ryfrom the family and co n su lted with D r . Cu lb ert , the attend

ing physicia n , and tried to ge t some info rma tio n from the

Peter Bent Brigham Ho spital and from the reco rd s ava ilable.Witn e ss certified o n the info rmatio n that he go t, to gether with

the re su lts Of his view o f the b o dy . Witn e ss, u po n his examinatio n o f the bo dy, fo u nd no evid en ce s tha t led him to b e lieveo r su spect that death had resu lted from tu b ercu losis . “

Frankly,

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I did no t co n sider tu bercu losis ; no history was given me thatSu gge sted tu bercu lo sis .” The stateme nt of Dr . Cu lb ert thatdeath was cau sed by cirrho sis a nd myo carditis seemed c o n

sisten t . Upo n examinatio n the m an had tran slu cen t eyelid s .He was n o t emaciated , b u t w as thin . The arterie s were so fta nd there was a slight oedem a Of the right leg. The left legwas very swo llen and showed a regio n o f pigmentatio n thereabo u t 3% by 1 % in ches , o r a little more than that. His heartarea w a s enlarged , and the regio n o f liver du lness w a s small .The abd omen was scapho id a nd the belly walls were shru nksom e . There was no du lness in the flanks, indicating n o flu idin the b e lly . His co nclu sion was cirrho sis of the liver and

myo card itis .Cro ss-exam ined , witness fo u nded

.

m ost o f his opin io n u po nthe de ta ils he go t from the atte nd ing physician a nd from the

fam ily. The m a n was dead when witness saw him . Witness ’

exam ina tio n o f this ma n is pu re ly a matter of fo rm , as in allc ases where there are sign s o f criminal Violence . The b o ard o f

health will no t accept a statement from the attending physicianin any case where a moving vehicle cau ses dea th. Witnessmade a n investigation in this ca se fo r the pu rpose o f startinga chain which w ill end in an inqu e st, and no t fo r the pu rpo seo f testifying in cou rt. Witne ss knew that Mr . Glenno n hadspit up b lo od from time to time a nd that he had lo st we ight .The se a re symptoms o f tu bercu lo sis, and it is tru e tha t incases o f tu b ercu lo sis a patient may go “ down hill ” and thenperhaps rega in a little we ight, take a su dden drop a nd d ie .

Witne ss saw no evidence o f can cer in his view o f the man ’sbody ; as far as witness knows there was no ca n cer pre sentthere .

Re—d ire ct : Witness, asked if he fo u nd anything u pon his

exam inatio n that wo u ld lea d him to change his o rigina l diagnosis Of cirrhosis and chro n ic m yo carditis ; whether or no t

there was any indication o f can cer, replied , the reco rds o f thePeter Bent Brigham Ho spita l wo u ld lead him to con sid er thepossib ility of a carcinoma Of the e sophagu s . (At this po intMr. De itrick, atto rney fo r the claimant, requ e sted the d o ctor

’s

qu alificatio n s if he is to testify as an expert on can ce r.) In

the first place, witness is a pro fesso r o f pathology at Tu fts

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Medic a l School . As professor of pathology, it is his du ty toknow abo u t cancer ; sec ondly, it has been w itness ’ d u ties tomake exam ination s and specia liz e in tissu es , and report to

su rgeon s if there is ca ncer present in the tissu es . His ex

perien c e in that rela tiOn wou ld cover several tho u sands ofexam ination s of tissu es for can cer, and in add ition to that w itness ha s experimented o n the ca u se Of cancer, particu larlywith relation to the variou s fo rms of stimu lation that m ightprodu ce it . He ha s experim en ted with som e of the lowerforms Of marine an imals where overstimu lation produ ces a

cell growth very closely allied to the condition s fou nd in casesOf can cer. Witness ha s perfo rmed au topsie s o n several hu ndreds o f cases in which cancer was given as the cau se o f d eath.

Medical m en do n ot know mu ch abou t cance r ; what they dono t kn ow wo uld fill a large library, b u t there are certa in wellknown facts abou t the disease . Witness ha s the u tmo st respectfor Dr. Phipps ’ ab ility, b u t does no t a gree with him in his diagnosis and opin ion tha t the man died from tu b ercu lo sis . Withthe in fo rmatio n that witness ha s got from D r. Cu lbert and therecord s o f the Peter Bent Brigham Hospital, witne ss thinksthere are two things to be co n sid ered . There was somethingat the b o ttom Of the esophagu s, the X-ray makes that eviden t .Witne ss thinks the tw o things to be co n sidered in dia gnosingthis case are either a can cer o f the esophagu s o r cirrho sis ofthe liver. The cirrho sis of the liver is accompan ied by a n

interference Of the passage o f blo od ; the b lo od that goesthrou gh the liver is side-tracked , and o ne of the importantside-tracks is the reverse flow thro u gh the gastri c ve in s . The

resu lt o f this carrying of b lo od by the liver thro u gh the

esophagea l vein s ca u se s the dila tio n Of these ve in s . In cirrhosisa m an

“ blows up like a ballo o n .

”The ca ncer o f the e sophagu s

might have rema ined localized fo r a lo ng time and mightsu dden ly have begu n to metastasize and send o u t cells whichspread and produ ce new tumo rs . It is dou btfu l if this cau sedthe su dd en lo ss o f we ight and su dden “ go ing down hill .”

Patrick Glennon , the employee in this ca se, su stained a n

in ju ry on April 25, 1918, which ha s been d escribed, and whentreated by Dr. Cu lb ert o n May 25, 1918, abou t o n e monthafter the acciden t, D r. Cu lbert fo u nd no symptoms o f any

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traumatism at all ; he fou nd some definite symptoms that hediagnosed as cirrhosis of the liver. The re is a history of awe ight of 167 po u nds when the doctor saw him o n May 27,and then a decrease to 146 pou nds in Au gu st. Then an in

crease Oi 1 1 pou nds ; the employee re tu rned to the we ight hew as when Dr. Cu lbert first saw him in May . Witne ss do esno t think that the fact that the ma n was treated at the o u t

patien t department Oi the Peter Bent Brigham Ho spital hasany connectio n as to the character o f the in ju ry . The accidentdid some harm ; b u t in witne ss ’ opin io n it did n o t influ ence acarcinoma of the stomach and cou ld n o t influ en ce a cirrhosiso f the liver . If the m an lo st weight , and then improved a nd

came b ack to no rmal weight, the general ind ication wo u ld bethat the harm which had resu lted from the in ju ry had bee novercome and that he was getting b ack to impro vement . The

m an had more o r less acu te cardiac tro u b le . Witne ss thinksit wo u ld b e pre tty hard to measu re with any exactness theharmfu l influ ence that the accident had w ith reference to theman ’s weight, etc . , b u t the acciden t d id d o him harm . The

site of the carcinoma is in a mo st pro tected positio n where yo uco u ld n o t produ ce an in ju ry by external Vio le nce u nle ss yo ub ro ke rib s o r po ked something po in tedly in ; it wo u ld have tob e a serio u s d isab ling in ju ry . Witness , asked o f the sign ificanceOf a pu lse o f 64 sitting and o f 80 stand ing o n November 1 1when D r . Gardner examined the m an , replied ,

“ I d o no t thinkthat has a ny sign ificance with reference to a tu bercu lo sis o therthan to ind icate that he did n o t have a very active pro gressin tu b ercu lo sis .” Witness wo u ld expe ct a m a n with tu b erc u lo sis to have a higher pu l se . The m an d ied ab o u t a mo nthafter this (NOV . 1 1 , 1918) examinatio n . It was a very lowpu lse fo r tu b ercu lo sis ; witne ss wo u ld expe ct in tu b ercu lo sisthat the heart wo u ld go mo re rapid ly than that, and that am a n wo u ld have had a mo re advanced pu l se .

Cross-examined , witness , asked if the m an had a he art c o nd itio n at the time o f the acciden t , and was thrown o ff a highseat of the wago n and landed o n the b o dy o f the wago n , a nd

from there to the stre e t , and rece ived a severe in ju ry su ch asha s b e en describ ed , so that whe n he to o k a deep b reath his

side s ripped ,” might it no t have b een po ssib le in witness ’

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o pin io n that the accident a ccele rated that heart tro u b le byte aring some of the ligamen ts, replied , When yo u say ligamen ts yo u mean valve s .

” Whe n yo u tear heart va lves there isa prompt a nd serio u s d isability . It is a very u n u su al accide nt .That might resu l t from an acciden t . Witne ss , asked if itmight hasten the man ’s d e ath by accelerating the heart tro u ble ,replied it might have , and , o n the o ther hand , the m an had a

myo c ard itis o r d istu rb ance o f the heart mu scle . The le akyva lve w as appare n tly seco ndary to the myo card itis o f the heartmu scle . Witne ss ha s d ifficu lty in trying to co nceive how an

acciden t co u ld lead to a mu scle pro cess . Yo u co u ld strain yo u rheart in the sense that yo u produ ce o veractio n and 9. we akening o f the mu scle s ; this is a temporary we aken ing . In this casewitne ss thinks that the valvu lar trou b le was se co nd to the myocarditis . It may no t have been , b u t witne ss thinks that thevalvu l ar tro u b le fo llowed the mu scle tro u b le . Witne ss , a skedif an accident in which a m a n fe lt as if “

his side s ripped ,whe ther o r no t that was severe , replied that it indicated thathe had b ee n hu rt , withou t any qu e stio n . Witness , asked if itwo u ld ind icate some tro u b le with the man ’s heart, lu ngs o r ribsat that time replied ,

“ I sho u ld say che st wall rather than he arto r lu ngs , inclu d ing rib s a nd mu scle s .” Witne ss , asked whatcau sed the man ’s d eath, replied that he certified o n the info r

matio n given him b y D r . Cu lb ert , Chro n ic myocard itis a nd

cirrho sis o f the l iver .” Witne ss is inclined to lea n towa rd s acan cer o f the eso phagu s that d id n o t affe ct him grea tly a fterhe lo st we ight u nt il it began to me tastasize in to the lu ngs ; thewe ake n ing o f the he art o r myo c ard itis w as perhaps the maincau se Of d eath. Witn e ss d o e s n o t think tha t he wo u ld havesee n some eviden ce o f this , and wo u ld n o t expect D r. Cu lb ertto make it o u t . There was a n Ob stru ctio n in the e sophagu s , b u tit was mino r, a sto pping Of the flow o f the ma terial . The m an

deve lo ped symptoms su ch as vomiting very la te .

The d e ath certifica te give s the ca u se o f d eath as fo llows .

Chro nic myo ca rd itis wi th hepatic c irrho sis . Fa ll from team which w a s

in c o llision wi th au to tru ck April 25. Disab ility sin c e a c c id enta l .

Dr . Phipps , reca lled by the claimant , sta ted that he ha s heardall the evid e nce in this case , inclu d ing the re co rd s o f the Peter

1

Be n t Brigham Ho spital , ind icating a carcinoma o f the e sopha

gu s , and ha s he ard D r . Cu l b ert ’s te stimony as to the liver and

he art tro u b le . Witne ss , asked if he had changed his o pin io nthat the m an d ied from tu b ercu lo sis , repl ied tha t the re co rd sd id no t cha nge his o pin io n a s to the ca u se o f the ma n ’s d eath,b u t they shed some l ight u po n his d ise a se and u po n o ther c o n

d itio ns which m ay have b ee n pre se nt . They d o no t cha ngehis o pin io n a s to the chie f cau se Of d eath . The chie f cau se ofthis man ’s d e a th was pu lmo n ary tu b ercu lo sis .

Member’

s D ec is i on .

Upo n all the evid e nce in this ca se I find tha t the employe e ,o n April 25, 1918, while rid ing o n the se at o f his emplo yer ’swagon , u po n which he wo rked as a he lper, a s a re su lt o f an

a u tomo b ile striking the wago n from b ehind , w as kno cked fromthe se at in to the b ack o f the wago n , thence o u t o f the wago no n to the cu rb sto ne , striking his b ack against the hu b o f the

whe e l o n falling, and su stain ing in ju ries to his rib s , chest a ndb a ck .

The emplo yee was to tally incapacitated fo r wo rk from the

time o f his in ju ry up to the time o f his death, o n D e c . 27,

1918. D r . Cu lbe rt, the family physician , was o f the opin ionthat the emplo ye e ’s d eath was cau se d by chro nic myocard itisand cirrho sis o f the l iver . D r . Timo thy Le ary, the med icalexaminer, who viewed the b o dy in his o fficial capacity, certifiedto the same ca u se o f d eath, b asing his certifica tio n u po n the

sta teme n ts Of D r . Cu lbert and the histo ry he go t . D r . Cad isPhipps , a n impartia l physician o f the Bo ard , a nd a Clin icia nwith wid e experie n ce , who examined the emplo ye e impartia llyfo r the Bo ard o n the date o f his d e a th, and who he ard a ll the

evid e nce in the case , w a s o f the opin io n tha t the employee ’sd e ath re su lted from pu lmo n ary tu b ercu losis ca u sed by in ju rie sto the emplo ye e ’s chest a nd rib s .Upo n the evid e nce , I find tha t the d e ath o f the emplo ye e

re su lted from pu lmo nary tu b ercu lo sis cau sed by tra u ma tism to

his rib s and che st o n April 25, 1918, this traumatism o c cu rring while the emplo yee w a s in the co u rse o f his emplo ymen t ,a nd arising o u t o f su ch employme nt .Und er this find ing the widow is entitled to compen sation at

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the rate o f $10 a week u ntil the paymen ts in the ca se re ach thesu m o f the first payment to d ate from the employee ’sd eath. The wid ow in additio n is en titled to a n advan c e payme nt o f $100 for the fu nera l expen ses o f her dece ased hu sb and .

FRANK J. DONAHUE .

Filed Wed ne sday Sept . 23, 1920, at 9 AM .

FIND INGS AND DECISION OF INDUSTRIAL ACCIDENT BOARD .

The in su rer having filed a claim fo r review, the Ind u strialAcciden t Bo ard heard the parties at Boston , Mass . , o n Thu rsday, Sept . 23, 1920, at 1 1 AM .

Appearance s : H . S . Avery, E sq . , fo r in su rer ; Frederick S .

De itrick, E sq . , fo r claiman t .Prese n t : Messrs . Kennard (chairman), Dickinso n , Parks ,

Do nahu e a nd Co gswell .Qu e stio n : Whether the death of the emplo yee re su lted from

the in ju rie s rece ived o n April 25, 1918.

The repo rt o f the Bo ard memb er contains all the materialevidence .

The Indu strial Acciden t Bo ard , o n review, affirm and ado ptthe findings and ru l ings o f the Bo ard member, that the deatho f the emplo yee re su lted from pu lmo nary tu be rcu lo sis cau sedb y traumatism to his rib s a nd chest o n April 25, 1918, thistra umatism o ccu rring while the employee was in the co u rse Ofhis employme n t, an d arising o u t o f su ch emplo ymen t .The wid ow o f the emplo yee, Mary Glenno n , is e n titled to

a n advance payme n t o f $100 fo r the fu neral expense s o f herde ceased hu sb and , and in ad d itio n a weekly compensation o f

$ 10, d ating from D e c . 27, 1918, the date o f his de ath, a nd

co ntinu ing u ntil the to tal payments equ al the sum o f

su b ject to the pro visio ns of the a c t .

DAVID T . DICKINSON .

JOSEPH A . PARKS .

FRANK J . DONAHUE .

JOHN H . COGSWELL .

Filed Thu rsday, Oct . 7, at 9 AM .

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COMPENSATION .

The paym en ts pro vided by the ac t are foun ded sim ply upo n the in ju ry re ce ived , an dhave no re la tio n to any theo ry o f fau l t o n the pa rt o f the em ployer o r right o nthe pa rt o f the employee , e ither in to rt o r c o n tra ct , established by law prio r tothe passage Of the a c t ; the wo rd “

c om pe nsa tio n m ea n s the m o n ey re lie fafi

’

o rd ed a cc o rdin g to the sc al e esta blished an d fo r the perso n s design a ted bythe a c t , an d n o t the c om pensa to ry dam a ge s re c overa ble in an a ctio n a t law fo r

a wro ng do n e o r c o n trac t bro ken . D erinz a’

s Case , 229 Ma ss . 435 , 44 1 .

REHE ARINGS.

The a c t provide s tha t n o pa rty sha ll a s m a tte r o f right b e en titled to a se co ndhea rin g upo n an y que stio n o f fa ct, the im plica tio n Of this se n ten ce be in g tha tc omm o n ly there sha ll b e n o re he arin g. There is n o do ubt o f the power o f theco urt to send a case ba c k fo r fu rthe r he a ring when justice seem s to requ ire it.Ne lso n ’

s Case , 217 Ma ss . 467 ; D o he rty’s Case , 222 Ma ss . 98. Whe re b o th theIndus tria l A c ciden t Bo a rd an d a ju dge Of the Superio r Co u rt have d ec ided tha tin the presen t case the re o ught to b e no rehea rin g, and the re is no thin g o n thisre co rd to show tha t there ha s bee n any abuse o f disc re tio n , it can no t b e sa idtha t it w a s n o t wise ly exerc ised . Fie rro ’

s Case , 223 Mass . 378 ; Be an ’

s Case ,

227 Mass . 558 ; G o rski’

s Case , 227 Mass . 456 .

FIND INGS OF BOARD .

The fin din g Of the Industria l A c ciden t Bo ard m u st stan d if su ppo rte d by eviden ce .

Pass ’ Case , 232 Mass . 515 .

REPORT OF MEMBER OF INDUSTRIAL ACCIDENT BOARD .

The member o f the Indu strial Accide n t Bo ard appo in tedu nder the pro visio n s o f Part III , sectio n s 5 a nd 7, chapter 751 ,Acts Of 191 1 , a nd amendme n ts there to , having heard the

parties iii the above-named case at Fall River, Ma ss . , o n

Friday, March 15, 1918, at A .M. , repo rts as fo llowsAppearan ce s : Cha rle s R. Cummings, E sq . (Jo hn W . Cu m

mings, E sq . , Of c o u n se l) fo r the widow ; John T . Swift, E sq . ,

fo r the in su rer .

It was agreed that John Devine , the dec eased employee ,re c e ived a perso nal in ju ry arising o u t o f and in the c o u rse o f

his emplo yme n t o n May 14, 1917 ; that his average we eklywages were $9 ; a nd that he was paid compen satio n at the rateo f $6 per we ek up to Sept . 16 , 1917 .

Qu estio n s : (1) was the emplo yee ’s d eath d u e to a persona lin ju ry arising o u t o f and in the c o u rse o f his employmen t ?

(2) depe nd en cy.

Repo rt of the E videnc e .

All the mate rial evide nce is repo rted he rewith .

Mrs . Margare t De vine te stified that he r hu sba nd , JohnDevine , was fifty-three yea rs Old whe n he d ied . She is sixty

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tw o years Of age . Her hu sb a nd was emplo yed in the Gran iteMills . On May 14, 19 17, w a s home to d inner, a nd he wasapparently a ll right a t that tim e . Whe n he came home in theeve n ing he complain ed o f a n in ju ry to his b ack . He to ld herthat he w a s lifting a lap a nd he slipped , in ju ring his b a ck,a nd his e lb ow came against the machine .

”She no ticed his

le ft e lb ow that n ight b e fo re he went to bed . There w a s a littlered spo t o n it . He was u nab le to go to wo rk the next d ay .

On the fo llowing Thu rsday he we n t to the ho spita l and re

mained there o ne we ek . She was no t ab le to go to see him

while he w a s in the ho spital . He w as still sick whe n he re

tu rned from the ho spita l . He complain ed o f his e lb ow a fterretu rn ing from the ho spita l , a nd at that time there w a s a red

spo t o n it . He went to the ho spital every d ay afte r that fo rtre a tme n t Of his b ack . (It was agre ed that a n o peratio n wasperfo rmed o n Mr . Devine ’s e lb ow at the ho spital .) His arm

was d o ne up in b andage s , a nd he complained o f it up to the

time he fina lly wen t to the ho spital b efo re his d eath.

On cro ss-examinatio n , Mrs . Devine te stified that there wasno b ru ise o n the o the r e lbow .

Wilmer T . Ke lley, ca lled by the claimant , te stified that he isMrs . Devine ’s so n-in-law. He saw Mr . Devine ab o u t May 16

or May 17, 19 17, a t the ho spital . At that time he qu estio nedhim as to his co nd itio n , and he to ld him that while lifting alap he sprained his b ack a nd kno cked his e lbow against amachine . He saw him o n the stree t sho rtly after he le ft theho spital , and at that time he said that there was some thinggrowing o n his e lb ow and the do cto rs wanted to o pe n it , b u the wo u ld no t co nse nt to have it o pe ned .

Mr. Swift , the atto rney fo r the insu rer, o ffered in evidencethe ho spital reco rd s , which are here to attached .

D r . Thomas F . Gu nn ing, ca lled by the claiman t , te stifiedtha t he is a practicing physician a nd su rgeo n in Fa ll River .

He has b e en in practice twe n ty-seven ye a rs a nd has he ld theo ffice o f med ica l examiner fo r twe lve o r thirtee n years . (The

do c to r ’s qu alificatio ns as an expert were admitted .) The caseOf John Devine came to him in his o fficia l capa city as med icalexaminer, b u t the au to psy w as perfo rmed at the requ e st o f

Mr . Devine ’s family . (Mr . Swift o b jected to the admissib ility

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o f the te stimo ny as to the a u topsy, o n the gro u nd that thisau to psy w a s perfo rmed at the requ e st o f the d ece ased em

ploye e’

s family , a fter the man’s d eath, and there was n o o ne

repre sen ting the de fe ndant pre se nt at the au to psy . Mr .

Gleaso n o verru led the o b jec tio n .) D r. Jame s H . Wa lsh and

Dr . Lewis a ssisted at the au to psy, a nd D r. Barre , Dr . D e lcher,Dr . Hu ssey and D r . No rmand were prese n t . There were o the rd o cto rs in a nd o u t . Dr . Hu ssey was at that time e ithe r ho u sephysician o r ho u se su rgeo n at the Un io n Ho spita l . (Mr .

Swift ob je cted to the fo rego ing statemen t .) D r . Barre is amemb er o f the staff of the Un io n Ho spital , a nd D r. D e lcher

is e ithe r ho u se physician o r ho u se su rgeo n . D r . Normand isn o t co nnected with the ho spita l . D r . Walsh w a s b a cterio lo gistat the ho spita l . An external examinatio n o f Mr . Devine ’sbo dy d isclo sed o n the le ft arm an o pen , u nhe aled su rgicalwo u nd that had made some attempt at he a ling partially, b u tit w as n o t complete ly healed . Internal examinatio n showed theb rain no rmal . On o pen ing up the chest he fo u nd within b othpleural cavitie s a Very large amo u nt Of flu id , e stimated at o vera qu art in ea ch cavity . There was some co ngestio n o f bo thlu ngs po sterio rly, which was no t impo rtant . The pericard ium ,

that is , the co vering o f the heart , w a s inflamed , friab le ap

pe aring, with some pu s appearing u nderne a th the u nder su r

face . The liver, Ou micro sco pical examinatio n , appeared to bed ise ased . The kid neys a lso gave micro sco pical evid e nce o f

d isease . The lower lu mb ar verteb rae se emed qu ite en larged .

He d id no t kn ow which o n e s they were . The pericard ium , the

kid ney, part o f the liver a nd the b o ne s removed from the

spine were tu rned over to D r . Wa lsh fo r b a cterio lo gica l a ndpatho lo gica l examina tio n . He fo u nd that Mr . Devin e d iedfrom septic pericard itis . Septic pericard itis is a card itis du e tothe fo rmatio n o f pu s , o r pu s within the parts invo lved , d u eto some germ capa b le o f cau sing sepsis o r po iso n ing . Sep

sis, Or b lo o d po iso n , is a we ll-u nd ersto o d wo rd . The e n trancefo r the b lo o d po iso n in this ca se w a s the wo u nd in the e lb ow .

Septic perica rd itis w a s the cau se Of de a th. It interfe red so

mu ch with the he art a ctio n tha t the m a n literally d ied fromd rown ing . He had a qu a rt o r mo re o f flu id in b o th lu ngs ,a nd he pro b ab ly d ied from tha t b e fo re he co u ld d ie from the

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b loo d po iso n ing . The primary cau se Of death was the septicpericarditis . The immediate cau se w a s drown ing o r the stopping Of the circu latio n in terfe re n ce with the circu la tio n by

drown ing o f the heart . The d e a th certificate , which was presen ted to the d o cto r showed the ca u se o f death to b e “ Septicpericard itis , hydro tho rax right a nd le ft , pro bab le o steomyelitiso f spina l verteb rae co ntrib u to ry ; sepsis fo llowing removal ofb u rsa at e lb ow .

”The do cto r stated that the d e a th certificate ,

a s far a s he is co ncerned , stand s co rre ct, except fo r the“ prob

able oste omye litis ,” which is in co rrect. The o ste omye litis was

a pro bab ility o n ly . At the au to psy he fou nd that there w as asu rgical wo u nd o n the elb ow . The en trance o f some septicbacteria co u ld cau se the genera tio n o f pu s in the e lb ow . A

bu rsa is d u e to violence . In answer to the following qu estion :It co u ld come by a m an falling a nd striking again st a machine ? ” the do cto r replied,

“ I wo u ld still maintain that thatwas vio le nce .

”

(Mr . Cummings , the attorney fo r the widow,

Offered in evidence a copy o f the d eath certificate .)On cro ss-examination Dr . Gu nn ing testified that a bu rsa

cou ld b e fo rmed by vio lence re su l ting from a fa ll , su ch as a ma nwou ld rece ive by falling and striking his elb ow aga in st a machinein the mill . A bu rsa is a clo sed wo u nd . In his o pin io n , the

me re hitting o f an e lbow again st a machine , as ha s b een described , co u ld n o t cau se in fe ctio n sepsis . If he assu med thata blow o n the e lb ow at that time cau sed a bu rsa , it d id n o t atthat time ca u se sepsis , po sitive ly . The case o f John Devinewas repo rted to him from the ho spital by the medica l examinerthere . The a u topsy was perfo rmed the fo llowing d ay a fter thedeath. He d id no t learn who the d ifferen t physicia n s were whoattended Mr . Devine befo re he performed the a u to psy. Heknew that D r . Lewis , D r . Wa lsh, D r. Barre , D r . No rmand o r

D r . D elcher had n o thing to d o with the treatme n t o f this case .

At the time he perfo rmed the au to psy D r . Hu ssey w a s eitherho u se surge o n o r ho u se physicia n . Mr . Ke lley w as re ferred tohim b y e ither D r . Barre o r D r . No rmand . He pla ced the factsin the ca se b e fo re him , a nd he re fu sed to ca ll the d istrict a tto rney fo r au topsy. The cau se Of death, a s give n by the ho spital , appe ared to b e reaso nab le , and o n the facts pre sented tohim he fe lt that there w a s no nece ssity for an au topsy . Mr .

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Ke lley sa id he wo u ld like to have a n au to psy perfo rmed , at a nyra te , and acco rd ingly he perfo rmed it . He pre sumed that Dr .

Ba rre was the atte nd ing physician whe n his name w as m e n

tio ned to him , b u t he later le arned that tha t w as no t so . The

wo u nd o n Mr . Devine ’s le ft arm w as a n excised b u rsa at thee lb ow . An au to psy, care fu lly a nd properly co ndu cted , o u ghtto d isclo se whe ther o r no t there w as a ny valvu lar heart tro u b le .

As he remembered it, there was no valvu lar heart tro u b le inthis ca se . In his o pin io n this inflamed , friab le appearing c o n

d itio n Of the pericard ium was du e to inflammatio n d ise a se .

That d ise ase appeared to b e rece n t, acu te ly inflamed , and beside s that , it carried with it the appearance o f pu s a nd the

pre se nce o f pu s . The pe ricard iu m had no evide nce o f a n o ld

co nd itio n . The micro sco pical examinatio n Of the liver and kid

neys w a s made afte r the a u topsy ; that w a s a part o f the patholo gical and b acterio lo gical examina tio n by D r . Wa lsh. The

lower lumb ar vertebra were inju red , b u t he co u ld no t say

which o ne s they w e re . It lo o ked like tw o o f the lumb ar verteb rae which he remo ved , b u t he was no t certa in which o ne sthey we re . It was a mass o f bo ny tissu e , and it w as tu rnedo ver to the patho lo gist fo r examinatio n . The vertebrae weretaken o u t b e cau se they appe ared to be d ise ased . He co u ld no t

de cid e whe the r that co nd itio n o f the verteb ra had the appe arance Of being re cen t o r o f some d u ratio n . An X-ray will showwhether a n acu te o r a chro n ic co nditio n exists in the bo ne . Itwo u ld b e po ssib le fo r the sepsis which he fo u nd in the systemto have eman a ted from a dise ased co nditio n o f the verteb ra .

He made an examinatio n o f Mr . Devine ’s thro at and tee th, a nd

they appeared all right to him .

In an swer to qu e stio n s by Mr . Gleaso n , the d o cto r te stifiedthat a b u rsa is a co lle ctio n o f flu id u su ally at the end o f a tend o n , a nd u su ally du e to vio le nce . It might no t b e direct viole n ce . A b u rsa might d eve lo p o n a perso n ’s hee l from a sho e .

That is co n sidered vio le nce , b u t n o t direct vio len ce . Thiswo u nd was right o n the tip o f the le ft e lb ow . The o ther e lb oww a s a ll right .D r. E . A . McCarthy , ca lled by the claimant , te stified that he

is a practicing physician , specializing in o rthoped ic su rgery .

(The d o cto r’s qu alificatio ns a s a n expert were admitted .) He is

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co nnected with the Un io n Ho spita l . He was called u po n to

atte nd Mr . Devine in the o u t-patien t departme n t o f the ho s

pital o n Ju ne 2, 1917 . He had a co nd itio n Of hypertrophicarthritis o f the spine , o r an inflammato ry co nd itio n o f the ver

teb ra l jo ints . The histo ry given was that while lifting a ro lle rwe ighing ab o u t 60 po u nd s , o nto

"a machine , he fe lt a sharp

pain a cro ss his lu mb ar spine . His tre a tme nt fo r tha t co nd itio no f the spin e co nsisted o f strapping, a nd he was a lso measu redfo r a sho rt b ack bra ce , which w a s applied to his b ack . Ab o u tJu ne 30 he compla in ed to him o f a co nd itio n o n his le ft elb ow,

and he asked him when he rece ived the co nd itio n which hed e scrib ed . He sa id it happen ed at the time he in ju red hisb ack . He a sked him why he d id n o t repo rt his e lbow co nd itio n at the time o f e ntrance to the ho spita l , and he replied thathe tho u ght it wo u ld no t amo u n t to anything . On examinatio no f his le ft e lb ow he fo u nd a flu ctu ating b u rsa, that is , a swe lling which o n pre ssu re with the finger ind icated that the re wasflu id u ndern eath. The u su a l tre atmen t fo r tho se co nd itio n s isto excise the b u rsa , which is cau sing the secretio n o f flu id , andthat me an s cu tting d own u po n it and removing it, so that therewill no t be any fu rther se cre tio n o f flu id . This w a s re c om

me nded to b e done u nder lo ca l a naesthesia . He to ld Mr . Devinethat it o u ght to b e ‘

d o ne , a nd he agre ed to have it d o ne , if itwere d o ne u nder a lo cal anaesthetic , a nd witne ss a sked D r . McCre ery to perfo rm the o pe ra tio n . Whe n he lo o ked at the b u rsao n the e lb ow there w a s no d isco lo ra tio n ; it was no t red o r in

flamed . It w a s ab o u t no rmal in co lo r . He wo u ld say thatthat w a s n o t re ce n t b e ca u se it w a s qu ite friab le a nd w a s no t

pain fu l . In his o pin io n it co u ld b e ca u sed a s the m an said atthe time Of the accid en t . He saw

'

the e lb ow a b o u t tw o we eksafter it w a s o perated u po n . The wo u nd was ope n and therew a s wha t might b e called a se ro u s d ischarge . The re co rd s o fthe ho spital sta te that this se ro u s d ischarge co n tin u ed , a nd the

wo u nd was dre ssed from Au gu st 1 1 to Septemb er 8, whe n a n o te“

appe ars tha t there w a s n o d ischarge . His arm w a s pla ced in a

sling and a cast w a s applied o n Au gu st 9 .

On cro ss-examin atio n D r . McCarthy te stified tha t he fir st sawthis pa tien t in the o u t-pa tie n t d epartme n t o f the Un io n Hospital o n Ju ne 2, a nd at that time the o n ly co nd itio n o f which

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he complained to him was the inflamed condition o f the vertebral jo ints . On Ju ne 30 he complained to him abo u t his elbo wfo r the first time . He w as present at the time o f the excis ionby Dr . McCreery . The excis io n showed that it w as an Old

b u rsa . The bu rsa w as excised o n Ju ly 13. In his opin io n the

b u rsa which w as excised co u ld have o riginated as rec ently as

May 14 . He wo u ld n o t be su rprised to know that it had existed mu ch longer than that . Tw o weeks after the excisio n thewo u nd itse lf was septic . The re co rd shows that o n Septemb er8 there was no d ischarge . That did no t necessarily mean thatthe sepsis had d isappeared ; there might have been some gra nulatio n . On Octo b er 6 a no te appears that a d re ssing w as ap

plied to the e lb ow, which wo u ld ind icate that the wo u nd w as

still o pen . Afte r the d ischarge sto ps the po ison disappears .When the d ischarge sto ps there is n o po iso n there b e cau se it isstill an o pe n wo u nd . There was no indicatio n o f po iso n there .

On re -d irect examina tio n the do c to r te stified that as late a s

Octo b er 6 a dre ssing was applied to this wo u nd , and that wo u ldind icate that the wo u nd w a s still open .

On b e ing qu e stioned by Mr . Gle aso n , the doctor te stified thata n in ju ry ca u se s a b u rsa . The d o cto r has se en o ver a hu nd redcase s o f b u rsae . Bu rsae a re qu ite frequ en t in ind u stria l accidents . In miners it is spo ken o f as a min er ’s e lbow . He

wo u ld say that any vio lence to any b u rsa wo u ld aggravate theco nd itio n . He d o e s no t kn ow a s it wo u ld pro d u ce pu s , b u t itwo u ld aggrava te it . This was water o n the e lb ow, b u t it hecame septic a fter the o peratio n .

D r . Jame s H . Walsh, called b y the cla imant , te stified thathe is a physicia n d o ing lab o rato ry wo rk o nly . He is a patho lo gist and b acterio lo gist co nn ected with the Un io n Ho spital .He is a grad u a te o f the Co llege o f Physician s and Su rgeo ns , andha s b e en a physician since 1910. He assisted D r . Gu n n ing atthe a u to psy o n the b o dy o f John Devine . His pre sence at thea u to psy w a s fo r the pu rpose o f taking pa tho lo gical o b serva tio nsa nd b acterio lo gica l specimens , a s d ire cted by Dr . Gu nn ing, a ndwhenever, in his opin io n , tho se were n ece ssary to b e take n . In

gro ss , whe n the bo dy o f John Devine was open ed , there was apu ru le n t co nd itio n o f the pericard iu m . E ach pleu ral cavityco nta ined ab o u t a qu art o f flu id . Both lu ngs appeared to b e

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d eceased emplo yee we nt to the ho spita l at the requ est o f theIIIill .)Mr . Charle s Dwe lley, called by the in su rer , te stified that he

is o verse er o f the card ing departme nt in the Gra n ite Mills ,John Devine wo rked fo r him . On May 17 he learned from Mr .

Devin e himse lf tha t he had su stained a n in ju ry . He came tohim o n tha t d ay and to ld him that he had a lame b ack, thathe sprained it while lifting a lap , a nd tha t he wo u ld like tohave a card to go to the ho spital . As a re su lt o f this in fo rmatio n he we nt to the o ffice a nd secu red a card fo r Mr . Devine .

On cro ss-e xaminatio n Mr . Dwe lley te stified that Mr . Devinew a s a fa ithfu l , ste ady wo rke r .

Peter Dexter, called b y the insu rer, te stified that he wo rksin the Gran ite Mills . He wo rked in the same d epartme n t withMr . Devine , and he knew him ab o u t twe lve o r thirte en years .

He a nd Mr . Devine wo rked to gether in the picke r ro om thre eo r fo u r ye ars . Mr . Devin e n ever to ld him a b o u t in ju ring hisb a ck in the Gran ite Mills . He rememb ered tha t he stayed o u t

from wo rk la st May , b u t he d id no t te ll him tha t he wen t tothe ho spita l . Previo u s to the time he stayed o u t , b e fo re hisin ju ry, he showed him a lump o n his e lb ow , a nd he squ ee zedit a nd some wa ter came o u t Of it .” That was abo u t five o r sixweeks b e fo re the a ccide n t . He was wo rking at the time , and

he wo rked ste ad ily right a lo ng a fter that fo r a few we eks .On cro ss-examinatio n Mr . Dexter te stifie d tha t his wo rk c o n

sists o f a tte nd ing in te rmed iate s in the picker ro om . Mr . D e

vine wo rked near his ma chine . This incid e n t o f the m an showing him his e lb ow happe ned la st ye ar , b u t he c o u ld

‘

n o t say ju stwha t time . He showed him that lu mp abo u t five o r six we eksb e fo re he we nt o u t the la st time . He n ever spo ke o f it to any

o n e u n til a m an ,pre su ma b ly Mr . John Gra ndfie ld , came to the

mill . He thinks tha t was a fter Mr . Devine ’s d e a th . This m an

a sked him how Mr . Devin e in ju red himse lf , a nd he replied tha the d id n o t know , that he n ever to ld him how tha t lump camethere . He to ld this m a n tha t Mr . Devine showed him his

e lb ow a nd he had a lu mp o n it . He a lso to ld him that he“ squ e e zed it a nd some wa ter came o u t o f it . Mr . Devine d idn o t te ll him wha t cau sed tha t co nd itio n o n his e lb ow . He d idno t compla in o f any pa in . Witne ss n ever to ld the o ve rseer

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abo u t it . He d id no t te ll Mr . Dwe lley abo u t it . Mr . Devines a id it d id n o t b o ther him . Witne ss is a Canad ia n . He ha s

wo rked in the Gra n ite Mills ab o u t thirty-o ne ye ars . WhenMr . Devin e showed him this co nd itio n o n his e lb ow , he

squ e e zed it and some wa ter a nd something e lse came o u t o f

it .” There w a s a little lu mp ab o u t the size o f a marb le o n his

e lbow . He d id no t kn ow whether Mr . Devine bro ke that lu mpo r no t .

Mr . Dwe lley, recalled , te stified tha t he is in cha rge o f the

c ard ing d epartment in the Gra n ite Mills . He never n o ticedthis swe lling o n Mr . Devin e ’s arm . The m e n in the mill wo rkwith the ir arm s b are .

In an swer to a qu e stio n by Mr . Swift , Mr . Dwe lley te stifiedtha t he never n o ticed Mr . Devine ’s arms a t a ll .

D r . Stephen M . Go rd o n , called b y the in su rer, te stified tha the is a pra cticing physicia n a nd su rge o n , specia lizing in o rtho

ped ic su rgery . (The do cto r’s qu a lificatio n s as an expert were

a dmitted .) He is o n the sta ff Of the Un io n Ho spital . He firsts aw Mr . Devine o n May 17 a t the Un io n Ho spital . He was ina ward . He compla ined o f pain and tenderne ss in the lower

part Of the b ack, a nd he treated him . An X-ray was o rd ereda nd taken . Ho t fome ntatio n s were applied and the m an wasmad e comfo rtab le in b ed . The ho spita l no te s were writte n byD r . McCreery at his d ictatio n . He w a s n o t d ischarged fromthe ho spita l a t the su gge stio n o f the ho spital a u tho ritie s , b u tb eca u se he wished to go home . He w a s re fe rred from the

ward to the o u t-patie n t d epartme n t . He n eve r saw him aga in .

He examin ed the X-ray pla te s . They showed a co nd itio n o f

hypertro phic arthritis o f the lu mb ar regio n , tha t is , a thicke ning of the bo ne . This was the fifth vertebra , the o ne n extab ove the pu b ic b o n e . From his examina tio n o f the se X-ray

pla te s this w a s a n o ld co nd itio n , d e c id edljr prio r to May 14 .

He he ard the te stimo ny o f D r . Wa lsh and D r . Gu n n ing . Fromwha t he kn ows o f the ca se , the co nd itio n which he fo u nd a s are su lt Of his examin a tio n Of the X-ray , and his tre atme nt , it ishis opin io n that this ab n o rma l co nd itio n o f the fifth lumb arverteb ra co u ld have had some co n nectio n with the m a n

’sd e ath . Any hypertro phic co nd itio n is ind u ced b y some fo rmOf in fectio n . It m ay b e a chro n ic co nd itio n . It showed itse lf

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no t only in the vertebra, b u t a lso in the spu rs o n the elbow ,

which w e re fou nd in the field Of operation when the operationwas performed . Then it was shown again in the infection Of

the kidneys chro n ic nephritis . It w as show n in the pericarditis , whatever the cau se might have been . It might havebe e n acu te o r it might have been the lighting u p o f a n o ld

tro u ble , b u t all tho se things lo o k to him as if the cau se mighthave be e n remote from the rece nt acciden t . In o ther w o rdshe feels that the cau se o f death might have been remote fromthe in ju ry at the mill .On cross-examinatio n Dr . Go rdo n te stified that it was hisimpre ssio n that this m an was lifting some thing up over hissho u lder at the time o f the accide n t . It is his o pin io n that hestrained the mu scle s o f the back and lighted up an o ld hypertro phic co nditio n . In answer to a qu e stio n as to how this who leconditio n wo u ld b e lighted up and cau se this man ’

s death, thedo cto r replied : General infectio n , no t o nly there b u t o the rparts . I do n ’t know b u t he had a pericarditis be fo re tha t . Ido n ’t know b u t that he had a perio stitis mo nths ago that w a sinfected lo ng b e fo re this acciden t ; all t hat co u ld be wo rkingthro u gh his system .

” He fo u nd no indicatio ns o f that exceptthe spu rs o n the e lb ow a nd the fifth verteb ra . He saw thisman ’s e lb ow o n general in spection . He traces this man ’s deaththro u gh the ge neral infectio n e lsewhe re to the heart .On re-d irect examin atio n the do cto r te stified that whe n he

rece ived this m an in the o u t-patie nt departmen t he d id n o t

examine his e lb ow .

D r . Jo hn J . Go rman , called by the insu rer, te stified tha t heis rad io grapher at the Un io n Ho spital , and has he ld thatpo sitio n fo r fo u r ye ars . He is a physician a nd su rge o n . He

had with him a t the he aring the X-ray pictu res which‘

weretake n o f John Devine ’s spine . He examined them , a nd fo u ndthat they showed a co nd itio n o f hypertro phic arthritis b o nyo u tgrowth . The se plate s were take n within a d ay o r tw o o f

his e n trance to the ho spita l , a nd he wo u ld say that this b o nyo u tgrowth had existed some time b e fo re the se plate s were made .

He wo u ld say tha t that co nd itio n anted a ted May 14, 1917 .

D r . Cla rence C . McCre ery , called by the insu rer, te stifiedthat he is a practicing physician and su rge o n in Fall River

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and Somerse t . (The do ctor’s qu alificatio ns as a n expert were

admitted .) He is a member o f the staff Of the Un io n Ho spital .He saw John Devine at the Union Hospital o n May 17 , 1917At that time he complained Of a pain in the right part o f hisback. He gave a histo ry Of having been in ju red while liftinga roller lap we ighing abo u t 60 po u nds . While l ifting the laphe fe lt a sharp pain acro ss the lumbar region o f his spine.He stated tha t he worked the re st Of the day, altho u gh the painin his back was severe . His previo u s histo ry was negative .

His family histo ry was that his father died at the age o f fiftyyears ; ca u se, u nknown . His mo ther died at the age of twe n tye ight ; cau se, pne u mon ia . Tw o brothers d ied ; cau se , u nknown .

He had n o sisters . He gave his age as sixty years . Physicalexamination o f the b ack showed backward bend ing o ne-halfno rmal , fo rward bend ing o ne-third no rmal , and side b e nd ingthree-fo u rths no rmal . All the mo tio ns were painfu l whenforced . The lower segme nt Of the spine was rigid . There w a s

a tender area o ver the fo u rth a nd fifth lumbar vertebra . Therewas a slight amou nt o f swe lling o f lu mb ar mu scle s . At thattime he said he fe ll again st a ma chine ; he did no t me ntio nanything abo u t his e lbow . He co n tin u ed to tre a t him u nderthe s upervisio n o f Dr . Go rdon . He was in the ward u n til the25th o f May, and he saw him every day . He next saw him in

the o u t-patien t departme n t o n Ju ne 2 . At that time he stillcompla ined Of pain in his back . He said nothing abo u t hiselbow at that time . He saw him practically every other d ay ,

and o n Ju ly 13 he excised the b u rsa . While ta lking with himabou t his back co nd itio n he showed him his e lbow, a nd wan tedto know “ if that co u ld b e fixed up a t the same time .

” Heasked him how long he had had that co nd itio n , and he saidit had b een there qu ite a few mo nths, that a co u ple o f time sit had become swo lle n , b u t it had go ne d own aga in . He to ldhim it wou ld b e better to have it done u nder lo c al ana sthe siathan u nder a genera l an aesthe sia . The b u rsa , which was asmall sac , was remo ved . There was a little pu s a nd a b o u t ateaspo o n fu l o f straw-co lo red liqu id . There were a few ratherSharp b o ny po in ts u nd erlying the b u rsa , a nd the se were scra pedo ff a nd the bo ne was made fa irly smo o th. The wou nd wascleaned and sewed u p and a dre ssing applied . He did no t

6

remain in the ho spital at that time . At the time he remo vedthe bu rsa there was n o infectio n there . The m a n to ld himthat the b u rsa had b een there fo r some months ; that attime s it wo u ld swe ll u p a nd go down aga in , b u t it neve r we ntdown alto gether . That was o n Ju ne 30, 1917 . In his opin io nthat b u rsa was there prio r to May 14, 1917 . He wo u ld sayit was an o ld b u rsa . There was n o evide nce o f any infe ctio nthere . The first time he saw a ny evidence o f infectio n aro u ndthe b u rsa o r the place whe re the b u rsa had b ee n was Au g . 4,

19 17, and that was ne arly thre e weeks after he excised it .As he remembe red it , the edge s o f the wo u nd were red , a nd

there was a discharge which co n sisted Of water o r serum and

pu s , and the inflammatio n extend ed ab o u t a half inch all thew ay aro u nd . It was d isco lo red , red and da rk . He tre atedthat in fe cted co nditio n u n til Sept . 6 , 1917 On Sept . 6 , 1917there w a s n o d ischarge , and the wo u nd had fil led in . A steriledre ssing w a s applied . The skin had n o t e ntire ly grown o ve r it .He saw him o n Septemb er 8, 13, Oc to b er 6 and 1 1 , a nd ate ach time there was n o d ischarge from the e lbow , altho u ghsterile dre ssings were appl ied .

On cro ss-examinatio n D r . McCre e ry te stified that some o f

the o riginal ho spital re co rds are in his handwriting . He to o kD r . McCarthy

’

s d ictatio n . He kn ew that Mr . Devine waso riginally se n t to the ho spita l to b e tre a ted fo r a n acciden t .He d id no t u nd ersta nd at the time that he was tre ating thism an tha t the insu ra nce compa ny we re paying fo r the tre atmen t . On b e ing shown ho spita l card NO . 109 , b earing the

wo rd s Re spo n sib le fo r charge s — E mp. Liab . , the do cto r w a s

asked if he knew tha t tho se abb revia tio n s me a n t Employe rs ’

Liab ility,”

an d the d o cto r replied that he u ndersto o d it thatw ay . The ho spita l tréa ts a numb er o f su ch case s , a nd he n eve rlo oks up to se e who is paying fo r the tre a tmen t . He b e l ieveda nd u nd e rsto o d tha t the in su rance company was paying fo rthis m a n . He reco rd ed the treatme nt fo r the co nd itio n o n thisma n ’s e lb ow o n the same card s o n which he re co rd ed the tre a tme nt o f his b a ck , a nd o n the same ca rd o n which the in su ra ncecompa ny is marked re spo n sib le fo r the charge s . The re a so n

he d id tha t w a s no t b e cau se he b e l ieve d tha t the m a n w a s

in ju red o n the e lb ow at the same time tha t he re ce ived the

77

in ju ry in the b ack, b u t becau se it is the cu stom o f the ho spitalto record tho se things as they come up, and co nsequ e ntly itis the ir cu stom to u se the same card fo r the same patie n t .

(Mr . Swift agreed that this tre a tme nt is marked o n the samecard o n which the E mploye rs ’ Liab ility Assu ra nce Co rpo ratio nis marked re spo n sib le fo r the Charge s .) The rem arks that Mr .

Devine made to him abo u t the b u rsa o n his e lb ow were madein D r . McCarthy

’

s pre sence . He heard D r . McCarthy’

s

te stimony, and he heard him say that the m an to ld him he

hu rt his e lb ow at the same time that he inju red his b ack .

In an swer to the fo llowing qu e stio n : D O yo u me an to say thatthis m an said in the pre sence o f D r. McCarthy that this w a so f o ld standing, that it was qu ite Old ?

”the d o cto r replied,

“ I do n ’t know ; w e were right there to ge the r . The reaso nhe d id no t reco rd Mr . Devine ’s remarks in regard to the

bu rsa o n the ho spita l card s w a s b ecau se those remarks weremade in D r . McCarthy

’

s pre sence , and D r . McCarthy did no t

te ll him to write them o n the reco rd . He d id n o t examineMr . Devine ’s e lbo w whe n he e n tered the ho spital , b u t whe nhe examined it o n Ju ly 13 there was no sc ar there . If hise lb ow had bee n b roke n o r had been o pened up by pressingwater o u t o f it thre e o r fo u r weeks befo re May 17, 1917 , hewo u ld expect to find some scar o r some ind icatio n o f it , b u tthere w as no su ch indicat io n . On Au gu st 4 he d iscovered theinfection in the place where the b u rsa had bee n . The o peratio nwas perfo rmed o n Ju ly 13 . He d id no t see the case from the

time Of the o peratio n u ntil Au gu st 4. He d id no t know the

cau se o f the infe ctio n . In his o pin io n the infectio n did no t

come from the in ju ry to the spine . He thinks that the infe c tio n in the b u rsa co u ld n o t come from the in ju ry to thespin e . The cau se s o f a bu rsa a re trauma o f some de sc ript io n ;fo r in stance, a m an might fall o n his elb ow ; he might kno ckit up against a hard Ob ject , a s again st the e nd o f a piece o f

machinery, striking a nd irrita ting it that way ; that wo u ldb e a n exciting cau se .

On re-d ire ct examinatio n the do c to r testified that the bu rsais a no rmal co nditio n and b u rsitis is the inflamed b u rsa . The

me re fact that a perso n has a b u rsa is no thing ab no rmal , b u tif he has a b u rsitis, that me ans that the b u rsa is inflamed

from some cau se . Bu rsitis co u ld re su lt from ru bbing o n ab u rsa . He knows n o thing abo u t the arra ngeme nts regardingthe payme n t o f a ny o f the se case s at the hospital . He re

c e ived no pay fo r the wo rk he d id o n this case .

In an swer to qu e stio n s by Mr . Cummings , the docto r te stifiedthat , as far as he knows , the ho spital rece ive s pay fo r a certainlength o f time in the se ca se s . The co nd itio n o f this man ’se lb ow a t the time he saw it w as a defin ite b u rsitis , defin ite ly ihflamed . At the time he first saw it , it w a s ju st a little reddeneda nd slightly swo lle n . That bu rsitis, in his ju dgmen t , cou ldhave an tedated May 14, 1917 .

D r . Arthu r I . Co nn e ll , called by the insu rer, te stified that heis a practicing physician in Fall River, and ha s be e n in practicetwenty-seven ye ars . (The docto r

’s qu alifications as an expertw ere admitted .) He is a membe r o f the staff Of the Un io nHo spital in Fall River . He saw John Devine at the Un io nHo spital as a n o u t-pa tient . It was his be st ju dgment thathe saw him ab o u t tw o o r three days befo re he died . That w asd u ring his regu la r service a s attend ing o u t-patien t su rge o n .

He had no ta lk with Mr . Devine o ther than qu e stion ing himregarding his symptoms . He w as dre ssed whe n he saw him .

He examined him and se nt him into the med ical departmentfo r fu rther examinatio n . He was first re ferred from the

o rtho ped ic o u t-patie nt to the medical o u t-patien t, a nd thatw a s where he saw him . He had charge o f b o th med ical servicein the ho u se and the o u t-pa tie nt, a nd Mr . Devine came u nderhis card . After examinatio n he made a d iagno sis o f chro n icnephritis , arterio sclero sis and pro b ab le endo carditis , which isa n inflammatio n o f the l ining memb rane o f the he art . He

atte nded him u n til he d ied . This m a n died from his heartin fe ctio n . He inclu ded in his d iagno sis the Chro n ic n ephritis .He was n o t pre sen t a t the au to psy . He knew n o thing ab o u tthe a u topsy u ntil it was o ver .

On cro ss-e xaminatio n the do cto r te stified that he inclu d edthre e things in his d iagno sis : chro n ic nephritis , e nd o card itisa nd arte rio sclero sis . He d id n o t write ho spita l card No .

14342 . On card No . 109 he mad e the n o ta tio n ,

“ card iac d ilatatio n , apex Sixth space in o u tsid e mammary line .

” He mad en o n o te o f e nd o card itis . The n o te “

apex sixth space in o u t

https://www.forgottenbooks.com/join

80

o ne examina tio n o f the u rine su fficie n t pro o f that the m an

d id n o t have arte rio sclero tic kidneys . The fact that the

examination o f the u rine showed specific gravity 1020; co lo r,ambe r ; reactio n , acid ; alb umin , negative ; su gar, negative ,do e s no t nece ssarily indicate that the m a n did n o t have the

c o nd itio ns ab o ve me ntio ned . One examinatio n , in his o pin io n ,

is no t su fficie n t . That examin ation , whether it w as su fi c ient

or no t , indicate d that the m an did no t have tho se co nditio n s .On re-d irect examina tio n the docto r te stified that the no te o n

the card from the o u t-patie nt departme nt,“ apex, sixth space

in o u tside mammary line ,

” indicate s d ilatatio n o f the heart .That was to him a su fi c ie nt ind icatio n o f the heart co nditio n .

He heard D r. Walsh’s te stimo ny . He he ard him state that asa re su lt o f the patho lo gical exam inatio n he fo u nd a chro n icne phritis , which in his ju dgme nt antedated May 14, 1917

tha t co nfirms his diagno s is ab o u t the chro n ic nephritis . Thereis no thing o n the ho spita l shee t dated May 25, 1917 , whichshows that any u rina lysis w as made at all . He wo u ld no t co n

sid er o n e u rina lysis , as re ferred to o n May 18, as b e ing su f

fic ien t to b ase a c o nclu sio n as to the co nditio n o f the kid neys .

On re-cro ss exam ina tio n the d o cto r testified that d ilatatio no f the he art doe s no t nec e ss arily mea n e ndo card itis . He a lsomade a diagno sis Of flu id in the pleu ral cavity , b u t tha t do e sno t appe ar o n the rec o rd . He first made that d iagno sis in theo u t-patie nt departme n t , whe n he saw the m an fo r the first time .

Dr . A . W . Bu ck, ca lled by the insu rer, testified that he is a

prac ticing physician in Fall Rive r, and has b ee n in practicetwe nty-six years . (The do cto r

’s qu alificatio ns as an expertwere admitted .) He d id no t treat John Devine a t the Un io nHo spital . He examined him at his o ffice o n Aug. 23, 1917 .

He examined him fo r the co nd itio n o f his e lb ow a nd his b ack ,as to the pro bab ility o f his b e ing ab le to re tu rn to wo rk . Whe n

he saw him , he w a s we aring a plaster cast with a wind ow in ita nd a su rgical dre ssing . He did no t remo ve the dre ssing , prefe rring to re ly o n the histo ry o f the case as he o b ta in ed it fromthe m e n at the ho spital ra the r tha n d istu rb the dre ssing . He

was we aring a b ra ce o n his b ack a nd he did no t d istu rb the

brace . Mr . Devine gave him his age as sixty ye ars , b u t helo o ked mu ch Old er than that . He was somewhat anemic , b u t

81

he lo o ked as he wo u ld expe ct a m a n to lo o k who had been inthe ho spita l fo r some time , limited in his activitie s . He mad eno examinatio n o f the kidn eys, a nd he made no examin atio n toasc ertain whe ther the m an was sclero tic o r no t . He mad e n o

u rin alysis . He c o nfined his examinatio n to the e lbow and the

back witho u t remo ving the bra ce o r the dre ssing. He thinksthat o ne u rinalysis wo u ld no t be su fficien t u po n which to basea conclu sio n as to whe ther o r no t a pe rson is sc le ro tic o r ha s

chro n ic n ephritis . Assuming a perso n ha s a n in fe cted co nditio no f the lower lumbar verte bra , he wo u ld say that it wo u ld bepo ssib le fo r that c o nditio n , arisin g from the in fe ctio n o f the

lower lumbar verte bra , to be come a systemic in fe ctio n whenthe wo rd in fe ctio n ” is u sed in that bro ad way. If a m an

ha s a septic co nditio n anyw here , it may spread thro u gh the

system . The mo st frequ en t cau se o f a b u rsitis is repeatedirritatio n . In his Opin io n , a bu rsitis co u ld be cau sed by

a trauma . Any irrita tio n , frequ en tly repeated , m ay c au se abu rsitis . Co n tin u o u s lean ing o n the e lb ow co u ld pro d u c e ab u rsitis . He made thi s examina tio n at the requ e st o f the insu ra n ce company .

D r . Go rd o n , re ca lled by Mr. Swift,te stified that in his

o pin io n o ne u rinalysis wo u ld n o t b e su fficien t to e stab lish aco n clu sio n as to the pre se n ce o r a b sen ce o f arterio sclero sis o rchro n ic n ephritis . Mr. Devin e appe ared an emic a nd po o rlynou rished while he was treating him .

On examinatio n by Mr . Cu mmin gs the d o cto r te stified thathe ceased attend ing Mr. Devin e o n May 25.

D r. McCre ery , re called by Mr . Swift, te stified tha t Mr .

Devine d id no t lo o k like a stro ng m a n . He w a s rather an emica nd n o t very we ll n o u rished . In his o pin io n , o ne u rinalysiswo u ld n o t b e su fficie n t to e stab lish a co nclu sio n a s to the

pre se n ce o r ab sen ce o f arterio sclero sis o r chro n ic n ephritis .John A . Gra ndfie ld , called by the in su re r, te stified that he isa repre sen tative o f the Emplo ye rs ’ Liab ility Assu ra n ce Co r

po ra tio n . The in su ran ce company in this case paid the Un io nHo spital fo r tre a tmen t o f Jo hn Devin e du ring the first tw oweeks o n ly, that is , from the 14th to the 28th o f May, 1917 .

They also paid fo r the back b race later . The in su rer fu rn ishedno o ther tre a tme n t .

82

Find ings a nd Ru lings of B oa rd Member.

1 . The death o f the emplo ye e , o n Oct . 18, 19 17 , was n o t d u eto o r re lated to a perso nal in ju ry which aro se o u t o f a nd in

the co u rse o f his emplo yment by the su b scribers .Claiman t ’s witn e sse s te stified that the death Of her de c ed e nt

w a s d u e to septic pericard itis , fo llowing remo val o f a b u rsa atthe tip o f the le ft e lb ow . The employee re ce ived a perso n alin ju ry o n May 14, 1917, which aro se o u t o f a nd in the co u rseo f his employment, in ju ring his back o n that d ate while liftinga “ lap .

” He was treated a t the Un io n Ho spital fo r a co nd itio n o f pa in and te nderne ss in the lower part o f the ba ck a nd

gave n o histo ry, o r mad e no complain t o f any e lb ow co nditio nu n til Ju n e 30, 19 17 . At that time D r . McCarthy te stified thatthe employee in fo rmed him that “ it happened at the time b ein ju red his back .

”D r . McCre ery co ntradicts D r. McCarthy

’

s

eviden ce as to this histo ry at that time , stating that whi letalking with the emplo ye e abo u t the b ack co nditio n the latterasked him if it co u ld no t b e fixed up at the same time ,

”a nd

stated that.

the e lb ow co nd itio n had b e en there “ qu ite a fewmo n ths . D r. McCre ery said that when the emplo ye e mad ethis stateme nt , he a nd D r. McCarthy we re

“ right the re to

ge ther.

” A fe llow emplo yee , Pe te r Dexte r, te stified that thed e c eden t showed him the e lbow co nditio n five o r six weeks befo re the in ju ry Of May 14, a nd that he

“ squ ee zed it a nd somewater came o u t o f it . All the evide n c e leave s it as u n like lya nd impro bab le that the emplo yee su stain ed a pe rso nal in ju ryto the e lb ow o n May 14, o r that the re is a ny cau sal c o n ne ctio nbetwee n the co nd itio n which cau sed the emplo yee ’s d e a th a nd

a perso nal in ju ry arising o u t o f a nd in the co u rse o f his em

ployme n t.2. Depe nd e ncy ha s b e en shown o n the re co rd , sin ce claiman t

lived with the employe e at the time o f his in ju ry a nd de a tha nd wo u ld b e e ntitled , if the in su re r were liab le u nd er the act,to a we ekly compen satio n o f $6 fo r the balan ce o f the perio dof five hu nd red weeks immed iate ly fo llowin g May 14, 1917 .

In View o f the first finding, however, n o c ompe n satio n is d u e

her u nd e r the statu te .

CHESTER E . GLEASON .

83

THE UNION HOSPITAL IN FALL RIVER.

No . 13379 .

Nam e :Devin e , John . Addres s : 1003 Pleasant St .

Adm itted : May 17,1917

,3 P .M .

, Ward C . Age : 60. Oc c u pa tionPicker, Granite NO . 2.

Birthpla c e : Ire land .

Address o f relative o r friend :Margaret Devin e , w ife , at ab ove address .

Nearest telepho n e : NO . 227 4—R,Alb ert Lambert , 1009 Pleasant St.

Ra te per w eek : Respo nsib le for charges E mp. Liab . CO .

Spe c ia l trea tm ent : X-ray spine , $10, May 17 and 18.

Re c omm ended by D r. (Watt and Bu ck)Ma cAu Sland . Ho u se c ase .

Diagn o sis : Exo sto sis 5 lumb ar? fra c tu re . Orite . R. B . Vo l . VIII .

Transferred : Improved .

Discharged :May 25, 1917 , P .M . ,aga inst advice .

Amo u nt Of b ill : $22. Sent May 29 , 1917 .

ORTHOPEDIC OUT-PATIENT DEPARTMENT.

NO . 109 .

Nam e : Devine , John . Address : 1003 Pleasant St. Age : 60.

Admitted : Ju ne 2, 1917 . Oc c upatio n : Granite Mills .

Transferred : From ho u se .

Responsib le fo r cha rges Emp. Liab .

Compla int : Pa in in b a ck.

Du ratio n :Tw o weeks .

Cau se : Fall .

Onset : Su dden .

Histo ry: Adm itted to ward May 17, 1917 . X-ray taken . Lifting ro llerlap60 lbs . into a ma chine , and in do ing so felt a sha rp pain a c ro ss lumb arspine . Transferred from ho u se .

P. E . : F . B . B . B . La t . Bend a ll m o tio ns pa infu l when fo rc ed .

Low er segm en t o f spin e rigid .

Diagno sis : Hypertrophi c arthritis .

Trea tm ent : Pa tient gu arded in spin e m ovem ent,F. B . i , B . B . i , R. L.

La t . Bend Tendern es s over fo u rth lumb ar spine , rigid . Sho rt

b a ck b ra c e . Pe lvic Cir . Eb ert Cir . Pad 8"

Ju ne 9 : Referred fo r operation . E . A . M .

Ju ne 28: Bra c e is fitted by D r. McCarty .

Ju n e 30: Bra c e is fitted by D r. McCarty , patien t recomm end ed to have

o le cranon exc ised . E . A . M .

Ju ly 12: Tu es . AM . fo r operation u nd er lo ca l . E . A . M .

Ju ly 13 : Opera tio n ,exc isio n o f b u rsa .

Au g. 4 :Wo u nd edges c lea n ed,sw ab s

,iod in e . Cast at right angle .

W . R. M .

Au g. 8: Cast applied to -d ay . E . A . M .

Au g. 1 1 :Wo u nd dres sed , Tr. iodin e and D . S. D . E . A. M .

84

Au g. 14: Slight am o u n t Of sero u s dis charge . Wo u nd swab bed with Tr.

iodine , D . S. S. C . C . M .

Au g. 16 : Dressing do ne , retu rn Sa tu rd ay. S. M . G .

Au g . 18: Consid erab le sero u s discharge , wo u nd dressed . C . C. M .

Au g . 21 : Discharge less , w o und dressed , iodine and D . S. D . C . C . M .

Au g. 22: Discha rge less , w o u nd dressed , iodine and D . S. D . C. C. M .

Au g. 23 : Discharge less , Tr. iod ine , D . S. D .

'

C . C. M.

Au g. 25: Improved , Tr. iodine D . S. D . C . C. M .

Au g. 28: Improved , dis charge sero u s , b u t very sm a ll am o u nt. C. C. M.

Au g. 30:Wo u nd dressed , cast trimm ed . E . A . M .

Sept. 1 : Cu retted , cast Off . Strapped with adhesive . W. R. M .

Sept . 4 : Improved , dis charge very slight, granu latio n cu retted . C

C . M .

Sept . 6 : Improved , no d ischarge D . C . D . C. C . M .

Sept . 8: NO d is charge D . S. D . C . C . M .

Sept . 13 : NO d is charge D . S. D . C . C . M .

Oc t . 6 : Dres sing to elbow . E . A. M .

Oc t . 1 1 : NO d ischa rge ; retu rn in two w eeks . E . H . M .

UNION HOSPITAL IN FALL RIVER .

N0 . 14342.

Nam e : Devin e , John . Address : 1003 Pleasant St .

Adm itted : Oc t. 15, 1917, P .M .,Ward C . Age : 53 . Oc c u pa tio n : Picker.

Birthpla c e : Irela nd .

Address o f re la tive o r friend :Margaret Devin e , w ife .

Nea rest te lephone : No . 2274-R,Albert Lamb ert , 1009 Pleasant St .

Rate per week : $14. Respo nsib le fo r charges . Self ? Ask O . P. D .

Re comm ended by D r. A . J . Co nne ll . Ho u se .

Diagno sis : Arterio sc lero sis , chronic , n ephritis . Med . R. B . Vo l . XIII .

Discharged : Oc t . 18,1917 .

Amo u nt o f b ill : $6 . Sent

Paym ent m ade : Nov. 2,1917 .

UNION HOSPITAL,OUT-PATIENT DEPARTMENT MED ICAL.

No . 109 . Date , Oc t. 15, 1917 .

Nam e : Devin e , John . Age : 60. Sex:Ma le . Oc c upation : Laborer.

Address : 1003 Pleasant St. Weight : Average , 175 lb s . Present, 144 lb s .

Nativity: Irish .

Fam ily histo ry : Parents and two b ro thers d ead . Mo ther and o ne b ro ther

d ied o f pneum on ia .

Ac c id ents : 1917,b a ck stra in .

Appetite : Fa ir. Diges tion : Fa ir . Sleep :Well .Hab its : To b a c co , m od erate .

Urin e S/Gr. 1028 Ac id . Alb . XX . Su g . Neg . Mic ro s . Gran u la r an d

b loo d c ells W. B . C . R. B . C .

85

Treatmen t: Temp . 98. Orthopn oea and dyspn oea fo r 2 o r 3

days . No c ou gh , an a m ic , L . pupil sl . larger than right .

Cardiac dilat . Apex sixth spac e in ou tside m am . lin e .

D r. Conn e ll .pa tien t d ied .

FIND INGS AND DE CISION OF THE INDUSTRIAL ACCIDE NT BOARDON REVIEW.

The pe titio ne r having filed a claim fo r review, the Ind u stria lAccide n t Bo ard heard the partie s a t Bo sto n , Mass . , o n Thu rsd ay , April 25, 1918.

Pre sen t : Me ssrs . Kennard (chairman),Dickin so n , Parks a ndDo nahu e .

Appe a ra n ce s : Charle s R. Cummings , E sq . (John W. Cum

mings, E sq . , Of co u n sel) fo r the widow ; John T . Swift, E sq . ,

fo r the in su re r.

Qu e stio n : whe ther the death o f the employee was d u e to aperso n a l in ju ry which aro se o u t o f a nd in the co u rse o f his

emplo yment .

The repo rt o f the Bo ard memb er co rrectly state s all themate ria l evide n ce .

Pe titio n er ’s mo tio n fo r a rehearing is d en ied .

Pe titio n e r’s sta temen t that the Bo a rd member su ggested thatthere be n o argumen t

” i s n o t in acco rd with the facts . Oppo rtun ity w a s affo rd ed co u nse l fo r argumen t, and a ny limitatio n o f

time a s to argumen t was pu re ly vo lu n ta ry o n the part Of co u n se l .The Ind u strial Accid en t Bo a rd affirm and adopt the find ings

and de cisio n o f the Bo ard memb er, a nd find that the d ea th o f

the employe e o n Oct . 18, 1917 , w a s no t d u e to o r re lated to a perso nal in ju ry which aro se o u t o f a nd in the co u rse o f his employmen t by the su b scribers . The employee rece ived a perso nal inju ry by re a so n o f a back strain while lifting a “ lap ” o n May 14,

1917 , which aro se o u t o f and in the co u rse of his emplo ymen t .Thre e days later, o n May 17, 19 17, he was re ce ived at theUn io n Ho spital as a ward patien t , a nd at n o time d u ring hisstay in the ho spital , o r while b e ing treated there, was a ny re f

erence mad e by him to the b u rsa o n his e lbow, u n til Ju n e 30,1917 , a ma tter o f nearly seve n we eks a fte r the in ju ry. A fe llowemploye e , Dexter, te stified that the employe e showed him the

elbow co nd itio n five o r six weeks b e fo re the in ju ry Of May 14,

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a nd that he squ eezed it a nd some wate r came o u t o f it . The

employee ’s sta temen t to Dr . McCree ry that the b u rsa had be enthe re “ qu ite a few mo n ths shows also that this co nd itio nan tedated the back strain Of May 14. Ado pting the langu ageo f the Bo ard member,

“ all the evide n ce leave s it a s u n like lya nd impro bab le that the emplo ye e su stained a perso nal in ju ryto the e lbow o n May Ado pting the co n clu sio n arrived atby the Bo ard membe r, the Bo ard find that

“ all the evidenceleave s it a s u n like ly a nd impro b ab le that the emplo ye e su s

ta in ed a perso nal in j u ry to the e lb ow o n Ma y The claimfo r compen satio n is dismissed .

WILLIAM W. KENNARD .

DAVID T . DICKINSON .

FRANK J . DONAHUE .

JOSEPH A . PARKS .

MOTION BY PETITIONER AND WIDOW.

And n ow come s the pe titio ner and widow, after the caseha s be en re committed to the Indu strial Accid ent Bo ard , a nd ,

witho u t wa iving a ny rights, mo ve s that spe cific find ings bemad e with re feren ce to the claim that the d eath o f the em

ploye e was cau sed by aggravating o r acce lerating, thro u gh thestrain to his back d u e to the accid e nt, the c o n sequ en ce s Of a

pre-existing d iseased co nditio n .

By he r Atto rney,JOHN W. CUMMINGS.

MEMORANDUM AND ORDER.

This is a mo tio n to re commit to the Ind u strial Accid en tBo ard a ca se in which the 'Bo ard ha s mad e a de cisio n adverseto the d epe nd e n t widow o f a de ceased emplo yee .

John Devin e , the d e c eased , died o n Oct . 18, 1917. The

au to psy revealed a n inflammatio n o f the pe ricard ium d u e to

b lo o d po iso n ing which the med ical examin e r who pe rfo rmedthe au to psy te stified was the primary cau se o f d eath On

Ju ly 13, 1917 , the d e ceased had su bmitted to a n o peratio n fo rthe excisio n o f a b u rsa ,

”i .e . , a Swe lling with a co llectio n o f

flu id , o n the tip o f the le ft elb ow . After the operatio n the

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88

me ans tha t the introdu ctio n Of new evide nce is a matter Of discretio n ordinarily . Commo n ly there sho u ld n o t h

p3 rehearing .

”

Doherty ’s Ca se , 222 Mass .,

98, 101 ; Go rski’s Case , 227 Mass .

456 ; Fierro’s Cas e , 223 Mass . 378, 382.

Under the act it is left to the Bo ard , when a claim fo r reviewis filed , to say whe ther they will retry the facts o r re fer thecase b a ck to the memb er fo r fu rther find ings o f fact . (St . 19 1 1 ,c . 751 , Part III, 10, as ame nded by St . 19 17 , c . 297 ,

The Bo ard is the so le ju dge o f the facts . When , there fo re , theBo ard d en ie s an applicatio n fo r a rehearing o f the facts , itsactio n is e n titled to co ns id erab le we ight , a nd it seems to methat it wo u ld requ ire very stro ng reaso n s to warrant this co u rtin re committing a case to the Bo ard fo r a re trial o f the factsfo r rea son s which have b ee n pre se nted to the Bo ard a nd fo u ndby it insu fficie n t in its opin io n to ju stify su ch a rehearing . Ithink, there fo re , that a re committal fo r that pu rpo se sho u ldn o t b e o rdered .

There is , howeve r, o ne aspe ct o f this ca se in which the recordis n o t clear . The pe titio ner claimed that the eviden ce wo u ldwarrant a find ing that the in ju ry to the back, co nceded ly su s

ta ined o n May 14 b y the de ce a sed ,“ l it up

”a n Old diseased

co nd itio n o f the b ackb o ne , and cau sed a ge neral infectio n whichpro d u ced the septic pe ricarditis and thu s cau sed the emplo yee ’sde a th. D r . Go rdo n , ca lled by the insu rer, who was a memb e ro f the staff o f the Un io n Ho spita l and a spe cialist in o rthoped icsu rge ry, te stified tha t the X-ray plate s o f the d ece ased take no n May 17 showed a co nditio n o f hypertro phic arthritis o f

the lumb a r regio n , that is , a thicken ing o f the bo ne . This w asthe fifth verte bra . This was an Old co nditio n , decided lyprio r to May 14 . From wha t he knows o f the case , theco nd itio n which he fo u nd as a re su lt o f his examinatio n o f the

X-ray , a nd his tre atmen t , it is his opin io n tha t this ab n o rmalco nd itio n o f the fifth lu mb ar verteb ra co u ld have had some c o n

n e c tio n w ith the man ’

s d e a th . Any hypertro phic co nd itio n isind u ced b y some fo rm o f infectio n . It may b e a Chro n ic c o n

d itio n . It showed itse lf no t o n ly in the vertebra , b u t also inthe spu rs o n the e lb ow , which were fo u nd in the fie ld o f o pera tio n when the o pera tio n was perfo rmed . The n it w as shown

89

a gain in the infectio n o f the kidn eys chro n ic nephritis . Itwas shown in the pericard itis, whatever the cau se might haveb een . It might have b e en acu te o r it might have b een the

l ighting up o f an Old tro u b le ; b u t all tho se things lo o k to himas if the cau se might have b e en remo te from the rece nt accid en t . In o ther wo rds, he fee ls that the cau se o f death mighthave b e e n remo te from the in ju ry at the mi ll .

“On cro ss-examinatio n D r . Go rdo n te stified that it was his

impre ssio n that this m an was lifting some thing up o ver hissho u lder at the time o f the accide nt . It is his o pin io n that hestrain ed the mu scle s Of the b ack a nd lighted up an o ld hy

pertrophi c co nditio n . In an swer to a qu e stio n as to how thiswho le (sic) co nditio n wo u ld b e lighted up and cau se this man ’sd e ath, the d o cto r replied ,

‘Gen eral infe ctio n , n o t o nly there b u to ther parts . I d o n ’t kn ow b u t he had a pericard itis b e fo rethat . I d o n ’t know b u t that he had a perio stitis mo nths ago

that was in fe cted lo ng b e fo re this accide n t ; all that co u ld b ew o rking thro u gh his system .

’ He trace s this man ’s d eaththro u gh the ge n eral infe ctio n e lsewhere to the heart .”

The Bo ard ha s fo u nd that the death o f the employe e wasno t d u e to o r re lated to a perso nal in ju ry which aro se o u t o f

a nd in the co u rse Of his employme n t by the su b scrib ers .”B u t

nowhere d o e s the Bo ard or the Bo ard memb er deal with thisparticu lar cla im , o r make any specific find ings o f the su b sid iaryfacts re lating to this cla im . It se ems to m e tha t the petitio n erm ay b e entitled fo r the reaso n s give n in Mathewso n ’s Ca se , 227Mass . 470, to spe cific findings o n this b ranch o f the case .

Crowley ’s Ca se , 223 Mass . 288 ; Bu rn s’ Case , 218 Mass . 8, 1 1 ;

Walsh’s Case , 229 Mass . 599 .

The o rder m ay b e

Ca se recommitted to the Ind u stria l Accid e nt Bo ard fo r thepu rpo se o f permitting the pe titio ne r to move that specific findings b e made with re fere nce to her cla im that the d eath o f the

emplo ye e w a s cau sed by aggravating o r a cce lerating, thro u ghthe stra in to his b ack d u e to the accid e n t , the co n sequ e n ce s o fa pre -existing dise a sed co nd itio n . If su ch m o tio n is alloweda nd fu rther find ings mad e , the Bo ard may co n sider the casea new , a nd may, if it see s fit , permit the in tro d u ctio n o f fu rther

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evidence u po n this b ranch o f the case . This o rder o f rec om

mittal is made fo r the pu rpose abo ve stated , a nd no t fo r the

pu rpo se o f requ iring the Bo ard to hear fu rther evidence exceptas it may choo se to d o so .

FRANKLIN T . HAMMOND ,

J u stic e , Superi or Cou rt.

SUPPLEMENTAL MEMORANDUM.

The fo llowing cha nges and additio n s are made to the Memora ndu m a nd Order ” filed in this case o n Dec . 1 1 , 1918.

1 . On page 1 , in the third paragraph, after the wo rds The c la imant

c ontended ,”insert the words

“am ong o ther things .

”

2. On page 3 insert “defendan ts b efo re “

eviden c e , so as to read

The petitio ner c la im ed tha t the d efendant’s eviden c e wo u ld warrant a

find ing, etc .

”

3 . On page 1 , in the first lin e , after mo tio n , insert“filed Sept . 13,

1918.

4. On page 2, at the end Of the paragraph c on c lu ding in the co u rse Of

his employm ent by the su b scrib ers ,”insert the fo llowing: “ I refu sed to

rec eive any eviden c e at the hearing upo n this m o tion .

”

FRANKLIN T . HAMMOND ,

J u stic e, Superi or Cou rt.

DECISION OF INDUSTRIAL ACCIDENT BOARD ON RECOMMITTAL .

The ' ab o ve case , having bee n recomm itted to the Indu strialAccident Bo ard in acco rdance with the attached “Memo randuma nd Ord er ” a nd Su pplem e nta l Memo rand um , filed with theBo ard o n Feb . 2, 1920, and co u n se l fo r the pe titio ner havingfiled a mo tio n with the Bo ard o n Feb . 3 , 1920, this mo tio n w as

co nsidered by the Bo ard o n Thu rsday, Feb . 5, 1920, at B o sto n ,

Mass .Pre se nt : Me ssrs . Ke nnard (chairman), Dickins o n , Parks ,

Do nahu e an d Co gswe ll .Fo llowing is the mo tio n filed by John W . Cummings, E sq . ,

co u nse l fo r the pe titio ne r

And now c om es the petitioner and w idow , after the cas e has been re com

m itted to the Ind u stria l Ac c ident Bo ard , and witho u t wa iving any rights ,

m oves that spec ific findings b e m ad e w ith referen c e to the c laim that the

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d ea th Of the employee w as c au sed by aggrava ting or a c c elerating, throu ghthe stra in to his b a ck du e to the a c c id ent

,the c on sequ en c es o f a pre

existin g d iseased c ond ition .

Upo n this mo tio n Of the pe titio n er, filed in acco rdan ce withthe Mem o rand um and Ord er o f the Su perio r Co u rt, the Bo a rdgran ts and allows the mo tio n ; and upo n the qu e stio n pre sen ted ,the Bo ard find s that the de a th o f the emplo yee was n o t cau sedb y aggravatin g o r acce lerating , thro u gh the strain to his b a ckd u e to the acciden t , the co n sequ e n ce s o f a pre-existing d iseasedco nd itio n .

WILLIAM J . KENNARD .

DAVID T . DICKINSON .

JOSEPH A . PARKS .

FRANK J . DONAHUE .

JOHN H . COGSWELL .

DECREE OF THE SUPREME JUD ICIAL COURT.

RUGG, C.J. This is an appeal from a d e cre e Of the Su perio rCo u rt co nfirming a find ing o f the Ind u strial Acciden t Bo ard tothe e ffe ct that the d eath o f John Devine , an employee u nd er

the Wo rkmen ’s Compen satio n Act , was n o t d u e o r re lated to

a perso n al in ju ry which a ro se o u t o f o r in the co u rse o f his

employmen t , a nd d ismissing the claim o f his Widow fo r c om

pen sa tio n . The dece a sed employee is alleged to have rec e ivedo n May 14, 1917, the in ju ry from which his d eath re su lted .

At that time it was pro vid ed by the act that in case o f d is

agre emen t b e tween the partie s co n cern ing compe n satio n , acommittee o n arb itratio n sho u ld b e fo rmed to d ecide the matters in d ispu te . That committee was to b e compo sed o f a rep

re se n ta tive appo in ted by each o f the re spective partie s, and itscha irman w a s to b e a memb er o f the b o ard d e signated fo r thatpu rpo se . St . 191 1 , c . 751 , Part III , 6 , 7, as ame nded bySt . 1912, c . 571 , 1 1 , 12. The se pro visio n s were changed bySt. 1917, c . 297, which was approved o n May 24, 1917, and

to o k e ffect o n Ju n e 23 , 1917, whereby the Committe e o n Arb itra tio n was e liminated a nd its fu nctio n s we re tran sferred to a

single memb e r Of the Bo ard . By the same statu te the m em

b ership o f the Bo ard was increased from five to seven . The

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hearing a nd decisio n o f the dependen t ’s claim in the case atb a r was heard b e fo re a single memb e r in a cco rdan c e with St .1917, c . 297 .

1 . The depe nd en t n ow co n tends that this hearing a nd d e

c isio n sho u ld have b e e n by a comm ittee o n arb itratio n in s e

c o rd a n c e with the statu te in fo rce at the time o f the allegedin ju ry , a nd that the single memb er had n o ju risd ictio n , altho u ghSt . 1917, c . 297 , w a s in fo rce at the time the hearing o ccu rred .

This po in t was raised fo r the first time by mo tio n to re

commit made in the Su perio r Co u rt after adverse decisio n s bythe single memb e r a nd by the fu ll Bo ard o n appeal . It is assumed , b u t witho u t so deciding, that the po in t thu s raised , ifso u nd , wo u ld a ffect the ju risd ictio n o f the co u rt , a nd hen cem ay b e taken advan tage o f in this pro ce eding at a ny time b efo re final decree . Co rco ran a . Higgin s , 194 Mass . 291 ; Bo sto nB a r Asso cia tio n a . Ca sey, 227 Mass . 46 , 50.

This co n ten tio n o f the d epend en t ca nn o t b e su ppo rted . St .1917, c . 297, re la te s who lly to pro ced u re , a nd affe cts n o su b

stan tia l rights o f the employer, employee o r in su rer . The

general pu rpo se o f the Wo rkme n ’s Compensa tio n Act was tosu b stitu te in case s to which it is applicab le , fo r commo n lawo r statu to ry rights o f actio n s a nd gro u nd s o f liab ility , a systemo f mo n ey paymen ts b ased u po n the lo ss Of wage s by way o f

re lie f fo r wo rkers o r depende n ts o f wo rke rs who re ce ive in ju ryin the co u rse o f a nd arisin g o u t o f the ir employmen t . Asstated in the “

Repo rt o f the Commissio n o n Compen satio n fo rInd u strial Accid en ts , su bmitted in 1912, which framed the

a c t ad opted by the Legislatu re (witho u t cha nge except inPart V, 3, where by all liab ility in su ran ce compa n ie s we regran ted the same privilege s as the Massachu se tts Employee sIn su ran ce Asso c iatio n in the matte r o f in su rin g), at page 46 ;“The Massachu se tts law m ay b e b riefly characterized as a n

e lective compen satio n in su ran ce law giving compen satio n fo r

all in ju rie s arising o u t o f employmen t irre spective o f n egligen ce ,except tho se d u e to the serio u s and wilfu l m isco ndu ct o f the

in ju red employe e . The b asic princ iple Of the act is that theco st o f the in ju rie s in cid e ntal to modern ind u stry sho u ld b etreated as a part o f the co st o f ' pro d u ctio n . The act wasframed with that e nd in View . The paymen ts pro vided by

93

the act are fo u nded simply u po n su ch in ju ry, a nd have n o

. re latio n to a ny the o ry o f fau l t o n the part o f the employer o r

right o n the part o f the emplo ye e e ither in to rt o r co ntracte stab lished b y law prio r to the passage o f the act . All paymen ts are by way o f financial re lie f fo r inab ility to earn wage s ,o r fo r deprivatio n Of su ppo rt flowing from wage s there to fo rere ce ived . The wo rd “ compe n satio n , in the co nn ectio n in

which it is u sed in the a c t , means the mo ney re lie f affo rd edacco rd ing to the sca le e sta b lished a nd fo r the perso n s d e signa ted by the act , and no t the compe nsa to ry damage s reco verab le in a n actio n at law fo r a wro ng d o ne o r co ntract b ro ken .

D erinz a’

s Case , 229 Mass . 435, 441 . The employee ta ke s n o

part in the co n tract fo r in su rance which is made so le ly by theemplo yer a nd the insu rer in acco rdance with the terms o f theact . He ha s n o active re la tio n to it Un le ss and u ntil he re ce ive sa perso nal in ju ry arising o u t o f a nd in the co u rse o f his employme n t . The rights o f the employee u nder the act re st n e itherin neglige nce n o r co n tract . They arise who lly o u t o f the

Wo rkmen ’s Compens atio n Act . That act e sta b lishe s a statu sfo r tho se su b je ct to its pro visio ns from which flow certaino b ligatio n s a nd rights fo r employer, employee a nd insu rer.

Tho se o b ligatio ns a nd rights , so fa r as the employee is c o n

cerned , are su sceptib le o f e nfo rcemen t exclu sive ly thro u ghthe pro ced u re se t fo rth in the a c t . That pro c ed IIre is d irecta nd flexib le , bu t pe cu l iar to the act . It is ne ither a n actio n atlaw n o r a su it in equ ity . Certain featu re s o f practice co ncerning case s arising u nder the Wo rkmen ’s Compen satio n Actre semb le in the main equ itab le pro cedu re (Go u ld

’s Case , 215Mass . b u t they are no t su its in equ ity . The fo rms o f

that pro cedu re , like o ther statu te s o f that Character, may b echanged from time to time by the Legislatu re witho u t affectingthe co nstitu tio nal rights o f the employee . Whether the c laimfo r compen satio n b e he ard and decided in the first in stan ce bya committee o n arb itratio n , the Chairm an Of which is a memb e ro f the Bo ard , o r by a single impartia l individ u al who is a

membe r o f the Bo ard , is a pu re matter. o f pro cedu re affectingn o su b stan tial right e ither o f the d ece a sed emplo ye e o r his

depe nde n ts . The amo u n t to b e paid u nd er the act is in n o

way influ e n ced by the change wro u ght by St . 1917, c . 297 .

94

The right to have a n arb itratio n comm ittee in cas e o ccasio naro se for the asce rtainmen t o f compensatio n u nde r the act

0

fo rmed no part o f the co ntract o f employme nt . It was who llya legislative regu latio n o f the mean s fu rn ished by the law as astep in the ascertainment o f the material facts in case a claimfo r compensatio n was made u nder the act . Altho u gh o u r actis vo lu n tary a nd n o t compu lso ry the pro ced u ral portio n s o f

the act d o no t b ecome a part o f the co ntract o f employme n tso as to b ecom e co n stitu tio nally u nchangeab le by the GeneralCo u rt. Se e Yo u ng ’s Case , 218 Mass . 346, 350. The Com

m ittc e o n Arb itratio n and the Indu stria l Accide n t Board are

pu rely admin istrative trib u nals created so le ly to administe rthe Wo rkme n ’s Compensatio n Act in aid to the co u rts .Levangie

’

s Case , 228 Mass . 213 . They co n stitu te no part o f

the su bstan tive rights conferred by the ac t u po n any o f itsbeneficiarie s , b u t like o ther su ch trib u nals m ay be changed a t

w ill b y the Le gislatu re .

That the amendm en t of the act made by St . 1917, c. 297 is

pro c edu ral , n o t affecting rights o f su bstan ce , is plain no t o n lyfrom exam inatio n o f its te rms in c o nnection with their c on textin the act, b u t from the fact tha t the sectio n s to which itrelate s are u nder Part III o f the a c t, which is en titled Pro

c ed ure .

” It is clear from this circumstance that it was thelegislative intentio n thereby to deal with pro cedu re alo ne .

B arto ni’

s Case , 225 Mass . 349, 354. The ca se at bar in this

particu lar is within the au tho rity o f many d ecisio n s . Roger ’sc . Nichols, 186 Ma ss . 440; Selec tm en o f Ame sb u ry c . Citizen sE lectric Street Railway, 199 Mass . 394 ; Howard a . Fall RiverIro n Works Company, 203 Mass . 273, 276 ; Han scomMalden Me lro se Gas Light Company, 220 Mass . 1 , 3 ;

Simmon s Han o ver, 23 Pick. 188; Hallowell a . Commo n s ,239 U. S . 506 ; Ay-Yu -Tse-Mil-Kin v. Smith, 194 U. S . 401

Campb e ll s . Iro n-Silver Min ing CO . , 27 C . C . A . 646 (83 Fed .

Rep. See in this co nne ctio n Wilson a . Head , 184 Mass .515 ; Yeoman s a . Heath, 185 Mass . 189.

It was he ld in Commonwealth v. Phelps, 210 Mass . 78, afterreview ing many d ecision s , that a statu te enacted after the

c ommission Of a capital Offen ce was n o t vo id as a n ea: post

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223 Mass . 378 ; Bean’s Case, 227 Mass . 558; Go rski

’s Case,

227 Mass . 456.

4. The finding o f the Indu stria l Acciden t Bo ard man ife stlywas su ppo rted by eviden c e a nd mu st stand . Pass ’ Case, 232Mass. 515. No erro r o f law is d isclo sed o n the re c ord .

Filed Jan . 5, 1921 .

D ec” “Wm”

CASE NO . 69 1 1 . (236 Mass .

SARAH M . DORMAN , WIDOW OF CHARLES DORMAN (DECE ASED), E mployee .

BOSTON SAND AND GRAVE L COMPANY, E mployer.

CONTRACTORS’ MUTUAL LIABILITY INSURANCE COMPANY, Insu rer.

ADMIRALTY JURISD IC I‘ION .

Where a m a te Of a ste am lighte r, engaged exclusive ly in comm e rce within the territo ria l lim its Of the Comm o nwe a lth Of Massa chuse tts , lo st his life from cause sa risin g o u t Of an d in the c o urse Of his em ploym en t, the rights o f the pa rtie s arewithin the adm ira lty jurisdictio n ; the circum stan ce tha t the vesse l did n o t go

o utside the three-m ile lim it do es no t d ivest the o ccu rren ce Of its adm ira ltycha ra cte r , which depends who lly upo n the questio n whe the r it is upo n n avigablewa te rs . So uthern Pa cific CO . v. Jen se n , 244 U . S . 205 ; D uart 0 . Simm o n s , 23 1

M a ss . 3 13 ; Id . 236 Mass . 225 ; Kn icke rbo cke r Ic e CO . 9 . Stewa rt, 253 U. S. 149 .

The jurisdictio n Of the co u rt can n o t b e e stablished by co n side ra tio n s a risin gfrom the c o nduct Of the pa rtie s , an d by fo rce Of the c o n tro llin g Of Kn icke rbo cke r Ic e CO . 0 . Stewa rt , su pra , de cree to b e en te red in favo r Of the in sure r.

REPORT OF MEMBER OF INDUSTRIAL ACCIDENT BOARD .

The memb er o f the Ind u strial Accident Bo ard appo in tedu nd er the provisio n s o f Part III , sectio n s 5 a nd 7, chapter 751 ,Acts o f 191 1 , a nd amendmen ts there to , havin g heard the partie sin the abo ve-named case at the State Ho u se , Bo sto n , Ma ss . ,o n Frid ay, Ju ne 21 , 1918, at 2 P .M .

, and o n Wedn e sd ay, Sept .17, 1919, at 10 A .M . , repo rts as fo llowsAppearan ce s : J . Fra nk Scann e ll , E sq . , fo r in su rer ; Gilbe rt

E . Kemp, E sq . , fo r petitio ner .

Qu e stio n s : (1)Whe ther o r n o t the accid en t , re su lting in theemploye e ’s death, aro se o u t o f and in the co u rse o f his em

plo ymen t ; (2) whe ther o r n o t, a ssuming that this Ma ssa chu

se tts act do e s cover the maritime to rts, the legislatio n , havingpassed in Octo ber, 1917, after the issu an ce o f the po licy inApril

,1917, co u ld b e e ffe ctive o n the gro u nd that it might

then intend to e n large the scope o f the co n tract .

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Repo rt of the E vidence .

All the material evide nce is repo rted herewith.

E . Lero y La ne , called by the pe titio ne r, te stified that he istreasu rer o f the Bo sto n Sa nd a nd Gravel Company . Thiscompany own s the “Herb e rt ,

”a nd w a s o perating it b etwe en

B o sto n a nd Scitu ate in March, 1918, at the time o f the accid ent . Captain Brad fo rd w a s captain Ou the

“Herb ert at thattime , a nd since then he ha s le ft the employ o f the company .

The Herb ert ” is called a steam lighter, and it is u sed in the

tran spo rtatio n o f sand and grave l . The Herb ert ” is ab o u tfee t lo ng, feet wide and feet deep . The pilo t

ho u se is o n the upper deck a nd was erected o u t o f the mainde ck. The ho u sing qu a rters a nd the ste ering apparatu s is infro n t o f the smoke stack . Offhand , he sho u ld say that the distance from where the ladder is faste ned o n the deck to the o u t

sid e edge Of the b o at is 6 o r 8 fe e t , and the wid th o f the pilo tho u se stru ctu re a t that po in t is 18 o r 20 fee t. The rail , o r

raised -up po rtio n at the side o f the b o at , is 3 o r 4 fee t fromthe side o f the pilo t ho u se . He b e lieve s that the ladder go e sdown .the aft side o f the ho u se . The ro u nd trip from Bo sto nto Scitu ate a nd b ack is ab o u t twenty-fo u r ho u rs . There is ahand rail o n the u pper deck o f the Herb ert,

”b u t there is n o

hand rail o n the lower deck . There a re the o rdinary sid e ele

vatio ns o n the b o at to preven t any o ne from fa lling o verb o ard ;the se side e levatio n s are a b o u t a fo o t high . The company ha sseven b o ats that are similar to the Herb ert .” The lo ss o f

the employee was repo rted to him ab o u t o r the sameday . As the re su lt o f this info rmatio n he mad e a n inve stigatio n and made a repo rt to the in specto r o f steam ve ssels, whichis as fo llows

MARCH 14 , 19 18.

Capta in HAYNES, U. S. Loca l In spec tor of Steam Vessels , 161 D evonshire

Street.

DEAR SIR: Upo n arriva l in po rt yesterdayCapta in Bradfo rd repo rtedthe loss overb o ard o f his m a te , Charles Do rman . The a c c id ent happen ed ,a c co rd ing to info rmatio n given u s by the capta in and m emb ers o f the crew ,

ab o u t A .M .,March 12, 1918, at ab o u t on e m ile so u thea st o f the Graves

while o u tward b o u nd to Sc itu ate .

We are u nab le to get any d eta ils o f how the a c c id ent happened , as onlyan o u tcry was heard as he apparently fell overbo ard . It is qu ite do u b tfu l

,

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from statements Obta ined from the c rew , whether he was seen in the water

a t a ll o r no t . How ever, the b o at was stopped as soon as the o u tcry was

heard and b a cked up to ab o u t the pla ce he was su ppo sed to have fa llen ,b u t the body did no t c om e to the su rfa c e . The lighter la id ab o u t in tha t

vic inity fo r a lm o st an ho u r, b u t the body was no t rec overed .

We u nderstand he is su rvived by a w ife and two married children .

E . L . LANE,

Then perso na lly appeared b efo re m e E . Leroy Lane , and mad e o ath tha tthe above statemen ts are tru e to his b es t b e lief and know ledge .

Witness fu rther te stified that five m e n compo sed the s inglecrew o n the

“Herb ert ,”a nd that ten m en compo sed the do u b le

crew . His reco rds show that the fo llowing compo sed the crewo n the

“Herb ert” at the time o f the accide nt : Captain Bradfo rd ; Charle s Do rma n , mate ; E . H . Hu nter, engine er, Mu s

c o ngu s , Me . ; Jo e Qu iza , fireman , 268 Commercial Stree t , B o sto n ; To n i Qu iza, 268 Commercial Stree t , Bo sto n ; J . Tavare s ,co o k, care o f City Fu e l Company, E ast Bo sto n ; E dward Cu rtis

(no addre ss); E rne st Pierce , 46Lexingto n Street , E ast Bo ston,seco nd e ngineer ; L . Thibeau , ho isting enginee r, 345 MeridianStreet , E ast Bo sto n ; a nd Olaf Olse n , 347 Meridian Stree t,E ast Bo sto n .

Co u n se l fo r petitio ner read the fo llowing le tter from CaptainBradfo rd to Captain Hayn e s

MARCH 14 , 1918.

Captain HAYNE S, U. S. Loca l In spector, 1 61 D evon shire Street, B oston .

DEAR SIR: At AM . on March 12 I was notified by one o f the c rewtha t the ma te had fallen overbo ard . I imm ed iate ly stopped and b a ckedthe b o at as near as I c o u ld ju dge to the spo t where he went overb o ard .

We go t the lifeb o at ready and watched for anything tha t m ight arise , b u tsaw no thing wha tever. We la id there fo r abo u t thirty-five or fo rtyminu tesand then pro c eed ed to Sc itu ate .

Yo u rs very tru ly,E . G . BRADFORD

,

Master of the Herbert.

Then persona lly appeared b efo re m e E . G . Bradfo rd , m aster Of the

Herb ert ,"and made o ath tha t the ab ove statem ents are tru e to his b est

belief and kn°W19d3e °

GEORGE J. MULHALL

J u stice of the Peace .

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At this po in t employee ’s dau ghter sta ted that the employeewas sixty-fo u r years o ld .

Witn ess fu rther testified that the employee seem ed to be verystrong and vigo ro u s . The employee had been to his home

qu ite frequ ently d u ring the win ter when the Herbert w as

la id up fo r repairs . The employee told him that the Herbert w a s b eing repa ired . He was manager of the Fo re RiverHo spital for three o r fo u r yea rs , and he con sid ers him self anObserver o f people . The employee and his wife lived togetherin Rockpo rt . The employee was able to go home o n c e a week.

At d ifferen t times d u ring the past three or fo u r years the em

ployee told him abo u t his du tie s on the“Herbert .” The em

ployee to ld him that he took charge of the vessel acting in thecapac ity Of captain ; that there was on e captain a nd he w a s

the mate, and that he acted as captain , b u t was u nder thed irectio n o f Captain Brad ford, and that he w a s a lways ca lledCapta in Dorman .

”

Cro ss-examined , witness testified that he is c onnected withthe Underwriters’ Securities Company ; that he is forty-o neyears Old , and ha s lived in Rockpo rt all his life .

The fo llowing eviden ce was taken at the con tinu ed hearingo n Wednesday, Sept . 17, 1919At the beginn ing o f the second hearing cou n sel for the in su rer

ob jected to the jurisdictio n o f the Bo ard over this case o n thefu rther grou nd , assuming that the Un ited States statu te of1917, passed to meet and overcome the difficu lty raised by theJen sen d ecision , ha s n o effect in Massachu setts be ca u se thereha s b een n o legislation passed in Massachu setts since the Un itedStates statu te Wa s pa ssed to su pplemen t Un ited States law and

re-enact Massachu setts law . He cite s , by way o f example, theNew Yo rk law o f 1918, chapter 249, which, after the passageof the Un ited State s statu te , was re-enacted .

It is agreed that this accident to ok place within the limitsOf the Ma ssachu setts water, that is, within three miles o f thesho re and n o t upo n the high seas .It is agreed that there is n o qu estio n raised as to the tota l

dependen cy o f the petitio n er, who is the widow o f CharlesDorman .

At this poin t five pictu res Of different views Of the Herbert

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were Offered in eviden c e, sam e b eing attached to the . files ofthe Board .

Olaf Olsen o f 345 Meridian Street, E ast B o sto n , called bythe petitio ner, testified that he is a gu y tend er o n the

“Her

bert,”and has b een so

‘ emplo yed fo r the past tw o years. Hewas o n the Herb ert ” on March 12, 1918, at the time theemployee was lo st overbo ard . On the mo rn ing of the accid en t the employee called him to dump the ashes ju st b efo red aybreak. The mo rn ing o f the accident was co ld a nd n o t qu iteclear, and there was ice o n the water. When the employeecalled him , he (witness) was in his bu nk o n the stern of thepilo t hou se o n the starboa rd side.At this poin t the blu e prin t o f the deck plan and side eleva

tion of that po rtio n of the stern o n which the accident is b elieved to have o ccu rred , and also the side elevation of the bo atfrom the stern , was received in eviden ce. The blu e prin t isa ttached to the files of the Bo ard and is marked E xhibitWitness then indicated the lo ca tion of his b u nk o n po int

d esignated o n plan by letter and stated that he was inthe top bu nk . He stated that the employee ’s ro om is designafed on plan by letter D that there is a partition betweenthe po int marked D and po int marked O,

”and that there

is a swinging do or between these two poin ts .

Witness testified fu rther that these room s were o n o ne floorlevel ; the pilo t ho u se was a little higher . On o ne side therewere steps leading d own from the pilot hou se to the deck. Ifthe employee was in the pilo t ho u se and attempted to go downto the ma in deck he wou ld have to go down a ladder, b u t ifhe was o n the starboard side he wou ld on ly have to go downone step and wa lk arou nd . There is a door lead ing from the

crew ’s room to the mate’s ro om . When the employee cameto his door on the morn ing of the acciden t he opened it andsaid,

“Ashes, B u d ; give me a ha nd with the ashes .

” It w asthe cu stom to wait u n til the bo at got o u t a little ways,

”and

then the employee wou ld give orders to him to dump the

ashes . The employee called him immediately after the changeof watches , which took place abo u t 6 o

’clo ck. He had beeno n this trip with the employee several times , and it w a s c u s

tomary for the employee to c all him to empty the a shes any

02

time when they passed Graves Light. He w as sou nd asleepwhen the employee called him . He started to get dressed immed iately after the employee called him . He remained in hisroom abou t three min u tes after he w as ca lled . The fireman ,

who had ju st c ome o ff watch, was awake when he left his room .

The fireman was a Portu gu ese, and is n o t employed o n the“Herb ert ” at the presen t time ; he believes he lives in Cambridge . He was abo u t to open the do o r o f his ro om when heheard some one ho ller . It was the employee ’s vo ice, and he

was to o far away to throw a life saver. He then went to thepilo t hou se a nd reported it to the captain . It sou nded astho u gh the employee was saying:

“Overbo ard , overb o ard , overbo ard . He heard this ho llering befo re he opened the do o r o fhis ro om , and it came from the dire ctio n o f the stern o f the

b o at . As so o n as he heard Do rman ’s vo ice he wen t to the

captain and then jumped from the pilo t ho u se down to the

main de ck ; the engin e s were go ing astern . The captain re

versed the bo at immed iate ly, b u t they failed to fin d the em

ployee . They stayed in that vicin ity fo r ab o u t o n e-half ho u r,b u t were u n able to lo cate the employee’s body . He d id n o t

hear any so u nd from Do rman after he had called overbo ard ”

three times . There was ice o n the po rt side o f the ma in d e ck .

The starbo ard sid e o f the m a in d e ck was clear o f ic e , b u t therewas some snow o n it . The po rt side o f the main deck was slippery . There is a ladd er o n the po rt a nd starb o ard side o f the

deck ho u se . He d o es n o t kn ow in which d ire ctio n the em

ployee wen t after leaving his ro om when he called him o n the

mo rn ing o f the a cciden t . Bo th the crew and o ffic ers u sedthe se ladders o n bo th sid es o f the de ck ho u se . The ladd er o nthe starbo ard sid e is a little mo re aft than the ladder o n the

port side ; that is , the starb o ard ladder w a s a little n earer thedo o r en tering in to the c rew ’s qu arters than the po rt side lad der.

On the mo rn ing o f the acciden t the ashe s were in tw o place so n the po rt side and o n e pla ce o n the starb o ard side. He didn o t know o n which pi le o f ashe s he was to wo rk o n the mo rning o f the acciden t . When he he ard the employee crying“overb o ard it so u nded to him as tho u gh it was straightastern . The bo at was go ing seven o r e ight kno ts an ho u r o n

the mo rn ing of the accid en t.Cross-examined , witness testified that they had changed from

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The passageway o n the deck hou se, u pper deck, shown o n

pho tograph No . 2, is ab o u t 31} fee t in w idth.

Pho to graph No . 4 shows the po rt side of the main dec kwith ladder lead ing from the u pper deck down , this being theladder in fro nt o f the mate ’s qu arters .Witness fu rther testified that the d ista n ce from the fo o t ofthis ladd er o n the main deck to the gu ard rail is abo u t 5 feet .

The gu ard rail alo ng the o u ter edge of the main deck is a foothigh.

The gu ard rail re ferred to is shown o n pho tograph NO . 4.

On the day in qu estio n there w as snow a nd a lo t of ice o n

the po rt side o f the main deck, and also o n the stern o f the po rtside . The ic e fo rmed from the u ppe r deck, and froze the n ightbefo re the accident . The deck was clear o f ice the next daywhen they came b ack to Boston . The Herbert was repairedat Campbell ’s wharf in E ast Bo ston . He a nd a deck hand bythe name Of Bo u dreau , from the

“ Co rnelia,” sc raped the snow

and ice o ff the de ck o f the Herb ert ” o n the afternoo n of theacciden t . Bou dreau is no t o n the Cornelia at the presenttime ; he do e s n o t kn ow where he is . Bou dreau on ly wo rkedo n the Herb ert ” that day (the day o f the a cciden t), and wen tback o n the Co rnelia ” the next day . The firea o n the

Herbert gave o rders to the d eck hands and they dumpedthe ashes . Bu cke ts were u sed in dumping the ashes . He doesn o t know how Often he assisted in d umping the ashes . Wheno ne o f the d eck hand s o n the Herbert ” was ill he wou ld takehis place. On the mo rn ing of the acciden t the Herbert ”

was sho rt-hand e d ; it was sho rt tw o deck hand s . Wheno rd ers were given to dump the ashes they were given by the

firemen , bu t the m en knew how to d ump them withou t any

o rd ers . He d id n o t expect to b e called o n the mo rn ing o f the

accid en t to d ump the ashe s . He b e lieves he was o n the

Herbert in May o f 1918. He d id no t ever talk with any

o ne from the Indu strial Acciden t Board in regard to thisacciden t . He heard the employee make a statemen t one daythat he cou ld no t swim . He ha s b een a sailo r fo r fifteen years ,and d u ring that time ha s been a fireman and a D . B . seaman .

He had been o n the Herbert abo u t three yea rs before theacciden t . The door o f his ro om was closed after the employeecalled him ; there are tw o windows in his ro om o n the stern of

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the vessel , neither of which was open , as it was very co ld thatmo rn ing . He heard the employees sho u ting while he was inhis qu arters , the d o o rs and windows b e ing clo sed ; the ven tilato r was open . He did n o t n o tice any ice o n the ladd er thatm o rn ing . He heard the employe e sho u ting ab o u t three min u te sa fter he had called him . He was ju st ab o u t to open the d o orwhen he heard the sho u ting. From the time he had beencalled to the time he heard the sho u ting he had pu t o n his

tro u sers , sweater, low sho e s and cap , and had his co at in hishand . He dre ssed hastily that morn ing , as he always does .When the employee called him he said , Ashes, B u d ; give mea hand with the ashe s .” He did n o t take any n o tice o f the

employee ’s fo o tsteps go ing away from the d o o r . He and Mr .

Bo u dreau cleared the ice o ff the d e ck after the ve sse l w a sloaded at Scitu ate and it was o n the way back to Bo sto n .

The Herbert arrived in Bo sto n in the afternoo n , and Mr .Lane met them o n the City Fu el Co al wharf .At this po int the in su rance po licy w as offered and rece ived in

eviden ce , same be ing attached to the file s o f the Bo ard .

E . Leroy Lane, re called by the in su rer, testified that to hisknowledge the Herbert had b een laid up fo r several weeksfo r repairs . He believe s the Herbert came b ack to Bo stonthe day fo llowi ng the alleged accident . Ord inarily the trip toScitu ate was made in twenty-fo u r ho u rs , altho u gh sometimesit was made in twelve ho u rs . The firemen and the de ck handsw ere su ppo sed to take care o f the ashes . The mate is torelieve the captain a nd have charge o f the hand ling o f the

boat . The mate and the captain are very seldom o n d u ty atthe sam e time . While the mate is o n du ty his respo n sib ilityis as great as that o f the captain . He did n o t Ob serve any iceor sn ow o n the d e ck the d ay after the accident .Co u nse l fo r pe titio ner o ffered in evidence the fo llowing

statement o f Capta in Brad fo rd

B OSTON , MASS. , March 15 , 19 18, A .M .

Elm er G . Bradfo rd , 12 Everett Street, Ma lden ,Mass .

,ma ster o f steam er

Herb ert ,”having b een d u ly swo rn ,

was examined as fo llow s

Q . (Mr. Ha in es). On March 12,1918, were yo u ma ster of the sand

lighter “Herb ert ”? A . Yes , sir .

Q. Was Charles C . Do rman employed on yo u r vessel as chief ma te ?A . Yes , sir.

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Q. State the c ircum stan ces attend ing the lo ss o f this man . A. That is

ab o u t as near as I can get it there (referring to repo rt o f a c c iden t). We

left at 4 o '

c lo ck for Sc itu ate , and he was in the pilo t ho u se with m e u ntilw e pas sed the Graves , and he went o u t o f the pilo t ho u se to ca ll one o f them en to help get the ashes overboa rd , and that is the last I saw o f him . In

five or Sixminu tes from that tim e this man he ca lled rushed upto the pilo tho u se and says ,

“Do rman is overbo ard .

’ That is the first I kn ew o f it .

Q. What a ction did yo u take then ? A . I stopped the bo a t and b a ckedher up as near as I co u ld ju dge where he fell overbo ard , and w e go t thebo at ready sm a ll lifeb o at ready to drop, and w e la id fo r thirty-fiveor fo rtym inu tes and saw no thing whatever. It was ju st growing daylight .

Q. How was the sea ? A . Very sm oo th.

Q . Was the see ing pretty good ? A . No t very. Ju st growing light.

Q . Why didn’t yo u lower the lifeb o at and send o u t a crew ? A. We

ju dged from the tim e this happened u n til we go t b a ck a man wo u ld perish,and we tho u ght the chan ces were poo r, a ltho u gh we had one o f tho se sm a llbo ats we c o u ld throw over in a se c ond .

Q. D id yo u imm ed iate ly throw a life preserver over? A. No , I didn t,bu t the b oys c laim they hea rd him ho ller, and I suppo se they m u st haveheard som ething o r they wo u ldn ’

t have kn own o f the a c c id ent.

Q . On yo u r vessel , when the m en wan t to u rinate , do they go to the ra il?A. No

,sir . There is a to ilet.

Q . D o they a lways u se it? A. Po ssib ly they m ight go to the ra il .Q . Have yo u ever seen them do it? A . I think I have on som e o c ca

sions . It was icy on de ck . It had b een co ld and wa s rather Slippery, andin my Opinion c om ing from the top d eck down I think he let go the ra il

and slipped .

Q . Is that ladd er o n the po rt or starbo ard side ? A . On b o th sid es , and

one near the after end o f the hou se .

Q . Yo u d on’t kn ow whi ch one he u sed in go ing down ? A . No , sir.

Q . D id yo u lo ok at the fo o t o f the ladd er and see there was ic e aro u nd

there ? A . Yes , Sir.

Q . It was po ssib le fo r a m an to strike tha t ic e and fa ll overb o ard ?A . Yes , Sir.

Q . Never has b een any tro u b le o n that bo at w ith any one ? A . No , sir,and he was fee ling fin e . In the m o rnin g we tu rned o u t at 4, and w e w ere

b o th in the pilo t ho u se together and he was feeling as well as u su al .Q . Had he ever expressed hid f as go ing to c ommit su ic id e ? A . NO,

Q . Who was the fellow he went to ca ll? A . A fellow by the n am e o f

Olsen .

Q . All the life-s aving equ ipm ent o n you r vessel in good c ond ition and

ready fo r imm ediate u se ? A . Yes .

E LMER G . BRADFORD ,Maste r of the

“Herbert.

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no t seem to be en tire ly warranted , a nd I prefer to base myfind ings u po n the general natu re of the occu patio n a nd the

general finding that in the absen ce of other evidence the

occu patio n in itself su pplied a cau se .The in su rer ha s raised ano ther qu estio n in this case which is

new to o u r ju risd ictio n , and that is that by reason o f the

decisio n o f the Un ited States Su preme Co urt in the Jen senCase , 244 U. S . 205, the Massa chu setts Compen satio n Actbecame in operative in the case o f maritime in ju ries , a nd that ,having become so inoperative, the statu te enacted o n Oct . 6,1917 , by Co ngress d id no t serve to revive it, b u t that it isn ecessary fo r the State Legislatu re to re-e nact the compen sation law as to maritime in ju rie s b efore it will be operativetherein . Co u n sel ha s referred to the fact that the New Yo rkAssemb ly has seen fit to re-e nact the law of that Sta te becau seo f a n expressed be lie f to that effect . Su ch a dec laration u ponthe part of a Legislatu re Of a neighbo ring State ha s neitherthe force of precedent in the determ inatio n of the legal phasesof the qu estio n , o r the stand ing Of a co urt decision as a gu ideto o u r local interpreta tion .

The fo llowing is the part of the Un ited States statu teapplicab le :

The ju risd iction vested in the Co u rts o f the United States in the c asesand the pro ceed ings he reinafter m entioned sha ll be exc lu sive o f the Co u rtsof the severa l states.

Se cond .

Third . Of all c ivil cau ses o f adm ira lty and m aritim e ju risdic tion ;saving to su ito rs , in a ll c ases , the right o f a c omm on law rem edy where thec omm on law is c ompetent to give it, and to c la im an ts the rights and

rem ed ies u nd er the workm en ’s compensa tion law o f any state .

The inju ry in qu estio n occu rred after the pa ssage o f this a c t .

A co n sideratio n o f the Je n se n Case lead s me to the co nclu sio nthat the decisio n there was that so far as maritime in ju rieswere co nc erned the State co u rt had no ju risd ictio n to en fo rc ethe compe nsatio n law fo r the reason tha t the ju risdictio n w as

exclu sively in the hand s o f the Federal co u rts, and that so faras su ch cases were co nce rned the compen sa tio n laws were n o t

applicab le . By the passage o f the law qu oted that ju risd ictio n

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has ceased to b e exclu sive . As was sa id by the co u rt in the

case o f Du art 0. Simmo ns , 231 Ma ss . 313, at 320:“ Seemingly

the exclu sive natu re o f the Federal ju risd iction ha s b ee n re

leased as to ca ses o f this so rt occu rring since Oct . 6 ,Cou nsel for the insu rer has su bmitted decisio ns o f some other

c o u rts as having a bearing u po n the qu estio n at issu e . Theyseem to me to go no fu rther than ho lding that o ne who has

su ffered a maritime in jury in all probab ility ha s a cho ice ofremedies in some ca ses e ither u nd e r the Un ited States ju risd ictio n o r u nder the Compensatio n Act . In the case o f Rhode ,Lib ellant, a . Grant-Smith Company, Respo ndent, decided Ju ne23, 19 19 , in the District Co u rt o f the Un ited States fo r theDistrict of Oregon , Ju dge Bean said .

The c ontention that the c o u rt is denied the right to pro ceed with thiscase and affo rd relief a c co rd ing to the ru les applicab le if the lib ellant isentitled thereto b eca u se o f the Oregon compensation a c t is in my ju dgm ent

no t so u nd . The Constitu tion o f the United States and the judiciary a ct

give the c o u rts o f the United States cognizan c e o f a ll c ivil cas es o f adm iralty and m aritim e ju risd iction exc lu sive o f the State c o u rt, saving tosu itors and c ompla inants the right to a comm on-law rem edy where thec omm on law is c ompeten t to give it, and the right and rem ed ies u nder theWo rkm en

’s Compensation Ac t o f any Sta te (a c t o f Oct . 6, The

rights and rem ed ies u nd er the comm on law and the State compensa tiona cts are no t given by the ju d ic iary a ct , b u t they are saved by it and are

open to the lib ellant if he e lec ts to pu rsu e them , b u t they are no t his ex

elu sive rem edy .

Whe ther this is so , however , is no t ma terial to this decision ,

and my investigatio n o f the law o n this po int has no t b een so

exhau stive as to rea ch any defin ite c o nclu sio n thereo n .

While I am of the o pin io n that my c o nclu sio ns in this caseare co rrect as a matter Of law , I am free to state that I believetha t if su ch a find ing and ru ling as is co nte nded for by theinsu rer is to prevail it wou ld come with mu ch better gracefrom a co u rt of la st resort rather than from the Indu stria lAccide nt Bo ard . Fo r this reason I have no t felt it ne cessaryto go fu rther into the co nsid eratio n of the law in this casethan seems su fficient to warrant a decisio n a long the lineswhich I have given . When I co n template the record s in the

Jen sen Case , and find that this case w as reargu ed twice befo re

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the highe st cou rt in the land, and then w as decided by a fo u rto thre e d ivisio n of the co u rt, I feel that any attempt u pon mypart to promu lgate a decisio n o f a co n tro lling character wo u ldbe o f no assistance .

The in su rer is o rdered to : pay to the widow o f the deceasedthe su m o f $10 per week fo r a period o f fo u r hu ndred weeks ,u n less said payme nts sho u ld be so o ner terminated u nder thepro visio n s o f the Wo rkmen ’s Compens atio n Act .

WM. W . KENNARD .

Filed Wedne sday , Nov. 19 , 1919 , at 9 AM .

FIND INGS AND DECISION OF THE INDUSTRIAL ACCIDENT BOARDON REVIEW .

The in su rer having filed a claim for review, the Indu strialAccide nt Board heard the parties at Bo sto n , Mass . , o n Thu rsd ay , D e c . 1 1 , 1919 .

Pre se nt : Messrs . Kennard (chairman), Dickinso n , Parks ,Donahu e and Co gswell .Appe arance s : J . Frank Scanne ll , E sq . , fo r insu rer ; Gilb ert

E . Kemp , E sq . , fo r widow .

Qu e stio ns : (1)Whether o r no t the accide nt, resu lting in theemployee ’s death, aro se o u t o f a nd in the cou rse o f his emplo yment ; (2) whe ther o r no t , assuming that this Massachu setts act do e s cover the maritime to rts , the legislation ,

having passed in Octo b er , 1917 , after the issu ance of thepo licy in April , 19 17, co u ld be effe ctive o n the grou nd thatit might then intend to enlarge the sco pe o f the con tract .The report o f the Bo ard

'

membe r and this record contain allthe material evide nce .

By agreement o f co u n se l , all of the pro visio n s of the c om

pe n sa tio n po licy issu ed by the ins u re r are material and are

made a part o f thi s re cord , except page 2 and rider NO . 2.

The Indu strial Accident Bo ard aflirm a nd ado pt the findingsa nd ru lings of the Bo ard member, a nd in addition ru le and

find as fo llows o n insu rer ’s requ ests below :1 . On all the evide nc e the claimant is no t en titled to re

cover .

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amendment and in addition thereto, any inju ry which was no t

inclu ded thereto fo re .

Den ied .

5. A maritime to rt is no t inclu ded within the provisions o f

chapter 751 , Acts of 19 1 1 , a nd ac ts in ame ndmen t and in ‘

ad

dition thereto .

Den ied .

6 . Until the Massa chu setts Legisla tu re enacts legislation inc orpo rating m aritime inju ries or torts within the provisio ns ofchapter 751 , Acts of 191 1 , a nd acts in amendment and in additio n thereto , no compen satio n c an b e awarded for the same .

Den ied . Certain ly if the Un ited States sho u ld cede back tothis Commonwe alth civil ju risdictio n over the land o ccu pied bythe Navy Yard in Bo ston , the Workmen

’

s Compensatio n Actwo u ld apply to pe rso nal inju ries su stained “thereon by em

ployee s o f su b scrib ers withou t any add itional legislation by theGeneral Co u rt . The same is tru e here .

7 . The insu rance po licy issu ed by the Contractors ’ Mu tu alLiab ility Insu rance Company did no t co ver the in ju ry to the

de ceased employe e in the case at b ar.

Den ied . The po licy issu ed by the insu rer to the su b scrib erin this case spec ifically co vers the o peratio ns of the dredgero n which claiman t ’s deceden t was employed . Thispo licy was

o riginally writte n to co ver the period from April 16 , 1917 , toDec . 31 , 1917 . On D e c . 31 , 1917 , the po licy w a s exte nded toexpire a s o f noo n April 16 , 19 18. The death o f the emplo yeeo ccu rred o n March 12, 1918. The extension o f the po licy inrid er No . 4 w as made a fte r the a c t of Oct . 6 , 1917 . See 40U . S . Statu te s a t Large , chapter 97 , se ctio n 2.

8. The depe nd en t is no t e ntitled to compen satio n u nder thein su rance po licy issu ed by the Con tracto rs ’ Mu tu al Liab ilityIn su rance Company to the emplo yer .

De n ied fo r the re aso n se t fo rth in ru ling o n NO . 7 .

9 . The co ngre ssio nal act o f Oc t . 6 , 1917 , did no t b ring maritime inju rie s and to rts within the provisio ns o f the po lic y o f

in su rance issu ed by the Co ntracto rs ’ Mu tu al Liab il ity Insu rance Company to the Bo sto n Sand and Grave l Company prio rto said Oct . 6 , 1917 .

Den ied fo r the reason that the po licy u nder which the em

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plo yee s o f the su bscrib er were covered at the time o f the deatho f claima n t ’s deceden t was issu ed as o f Dec . 31 , 1917 . (See

rid er No .

10. The co ngre ssio nal act o f Oct . 6 , 19 17, co u ld no t enlargethe liab ility o f the Co ntracto rs ’ Mu tu al Liab ility In su ranceCompany u nder the co ntract o f in su rance issu ed to the Bo sto nSand and Grave l Company prio r to Oct . 6, 19 17 .

Den ied as b e ing immaterial , the po licy b e ing o f the date o f

D e c . 31 , 1917 .

No qu e stio n was raised a s to the co n stitu tio nality o f the

amendment o f 1917 . This qu e stio n has b een argu ed , and de

c isio n is now pe nd ing be fo re the Su preme Co u rt o f the Un itedState s in the case o f Kn ickerb o cker Ic e Company a . Lillian E .

Stewart , No . 543, in erro r to the Su preme Co u rt o f the Stateo f New Yo rk .

Under this decisio n there is du e Sarah M . Do rman , widowo f the de ceden t, the su m o f $10 a week fo r a perio d o f fo u rhu ndred weeks , u n le ss said paymen ts Sho u ld b e so o ner termiu s ted u nder the pro visio n s o f the Wo rkme n ’s Compen satio nAct .

WM. W . KENNARD .

DAVID T . DICKINSON .

FRANK J . DONAHUE .

JOSEPH A . PARKS .

JOHN H . COGSWELL .

Wed ne sday, at 9 A .M.

DECREE o r SUPREME JUD ICIAL COURT ON APPEAL.

RUGG, C .J. Charle s Do rman was emplo yed as mate u po n a

ve sse l d e scrib ed a s a steam lighter, named the Herb ert ,”u sed

by its owner in co astwise traffic fo r the tran spo rtatio n o f sandand grave l b etween Scitu ate and Bo sto n . At the time inqu e stio n the

“Herb ert ” w as o n a voyage o ve r tidewater b etween the se tw o place s, a nd was in o r ju st o u tside Bo sto nHarb o r a nd . within three mile s o f sho re . Do rman was em

plo yed by the Bo sto n Sand and Grave l Company, which wasinsured u nder the Wo rkmen ’ s Compen satio n Act , a nd whichowned the ve sse l .

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It is assu med in favor o f the dependen t fo r the pu rpo ses o fthis de cisio n that Do rm an lo st his life from cau ses a rising o u t

o f and in the co u rse o f his emplo yment . The se cau se s man ife stly were o perative u nd er su ch circumstance s as to b ring a ny

lega l liab ility arising there from within admiralty co gn izance .

The legality o f the incid ent is decisive u po n that po int .E very specie s o f to rt, however o ccu rring, a nd whe ther o n

b o ard a ve sse l o r no t , if u po n the high seas o r navigab le water,is o f admiralty co gn izance .

”The Plymo u th, 3 Wall . 20, 36 ;

Pro cto r a . Dillo n , 235 Mass . 538, 541 .

The circumstance that the Herb ert was engaged exclusively in commerce within the territo rial limits o f this Comm o n

wealth, a nd d id n o t go o u tside the thre e-mile limit , do e s n o t

d ive st the o ccu rre nce o f its a dmiralty character, which dependswho lly u po n the qu e stio n whether it is u po n navigab le waters .The Ro b ert W. Parso n s , 191 U . S . 17 ; see No rth PacificSte amship Co . a . Hall Bro thers Marine Railway Shipb u ild ingCO . , 249 U . S . 1 19 ; Atlan tic Transpo rt CO . a . Im brovek, 234

U. S . 52.

The Wo rkmen ’s Compen sa tio n Act is b ro ad e no u gh in itsterms to inclu de case s like the o ne at b ar. B u t it is plain fromthe facts here d isclo sed that that act (apart from a Fed eralstatu te to b e mentio ned in a moment) co u ld n o t b e operativein favo r o f the d epe nd en t u nder the Co n stitu tio n Of the Un itedState s That w a s se ttled b eyo nd qu e stio n by So u thern PacificCo . a . Je nse n , 244 U. S . 205, de cided in May, 1917 . We wereco n strained to fo llow that d ecisio n in Du art 0 . Simmo n s , 231Mass . 3 13 ; S . C . , 236 Mass . 225, and in Sterling ’s Case , 233Ma ss . 485. After the d ecisio n in the Jense n Case Co ngre ssattempted to co nfer ju risd ictio n u po n the several Sta te s tode al with case s like the presen t by wo rkmen

’s compensatio nlaws by the e nactmen t Of 40 Un ited State s Statu te s at Large ,0 . 97 , 2, appro ved Oct . 6 , 1917 . Seemingly the exclu sivenatu re o f Federa l ju risdictio n u nd er admiralty law w a s re leasedto the State s by that act take n at its face valu e . Du artSimmo n s, 231 Mass . 313, 320. The co n stitu tionality o f thatact was assailed , however , a nd by the decisio n in Kn ickerb o ckerIc e Co . a . Stewart , 253 U . S . 149 , rendered since this case washeard a n d decid ed b y the Indu strial Accident Bo ard , it was

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o u gh, Mass . , o n Wednesday , Dec . 3, 1919, at 12 M. , repo rtsas fo llows :Appe arance s : Messrs . Sawyer, Hardy, Sto ne 85 Morriso n

(Gay Gleaso n , E sq . , o f co u n sel) for in su rer ; J . V . Su llivan ,

E sq . , fo r emplo ye e .

While alighting from a c ar o n April 12, 1919 , this employe estrained his right ankle , and su b sequ e ntly his right leg w a s

ampu tated ab o ve the knee .

Qu e stio n s : (1) Did the employee re ce ive a perso nal in ju ryarising o u t o f and in the co u rse o f his emplo ymen t o n April 12,19 19 ? (2) Wa s the statu to ry no tice of in ju ry given ? (3) Ifno t , w a s kn owledge co nveyed as soon as practicab le ? (4)Whether o r n o t there was cau sal co nne ctio n b e twee n the in ju rythe employe e su stained o n April 12, 1919, a nd the su b sequ e n tampu tatio n o f his leg . (5) Whether o r no t the in ju red m an

was a n emplo yee u nder the act, o r an independ en t co n tra cto r .

Report of E videnc e .

Henry W . Braley, the claimant, te stified that he is a sale smana nd co lle cto r fo r the su b scrib er who ha s an Office in Midd leb o ro u gh . He re ce ived a week, a nd in add itio n to thissalary re ce ived a b o nu s . His salary a nd b o nu s amo u n ted to

last ye ar. Witne ss live s a t Clear Po nd Ro ad , Fo u rCo rners , Lakeville , ab o u t a mile a nd three-qu arters fromMid d leb o ro u gh. It was his cu stom to ride b ack and fo rth towo rk o n the tro lley cars . When coming Midd lebo ro u gh wayhe b o arded the 8 o

’clo ck c ar . If he wen t the o ther way he hadto ge t a c ar a half ho u r e arlier . There were certain days hewo u ld leave his home and immed iate ly go o u t o n his wo rkwitho u t repo rting to the o ffice . He was no t requ ired to repo rtat the o ffice b e fo re starting his d u tie s . Witne ss always wen to u t co lle cting o n Su ndays , a nd the o ffice was never o pe n o n aSu nd ay . On April 12, 1919, the d ay he was in jured , he lefthis home in time to b o ard the 8 o

’clo c k c a r, arriving in Midd leb o ro u gh ab o u t o r a little after . He had co llected thatmo rn ing b e fo re reaching M ddleb o ro u gh. When the accid en tto o k pla ce he was in fro n t o f the waiting statio n o n Cen treStre et , Midd leb o ro u gh . He had his grip in his ha nd , a nd

whe n stepping o ff the c ar tu rn ed his a nkle . He d id no t fall

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to the gro u nd . The case he carried co ntained his insu rancepapers . He was fain t so went into the wa iting sta tio n o r intothe Central Ca fé a nd go t a c up o f c o fl’e e . Then he saw Mr .Chase , the co ndu cto r o f the c ar, and spo ke to him . He re

mained there a sho rt time an d then wen t to the o ffice and

repo rted his in ju ry to Mr. Lightb o nd , the assistant superin

tenden t . It was perhaps a ha lf ho u r after the accide n t that herepo rted it to Mr . Lightb o nd . Mr . Lightb o nd asked witne ssif he wanted any o ne to go o u t co llecting fo r him , b u t he

replied that he was go ing to try to ge t down to the Sta r Mill .When he reached a little sto re the ankle pa ined so he askedpe rmissio n to take his sho e o fl’ there . The ankle pained b ad ly.

The fo o t w a s a little red in a place similar to where he po intedto o n the o ther fo o t . (De scrib ed by atto rney as right littleto e , right-hand side o f fo o t .) Thi s redne ss extend ed “ pre ttyne ar ” aro u nd the hee l . He had no med ica l a ttendance a t thattime . He wen t d own as far as Mr . Galliga n and had to giveu p, a nd sen t a b o y to d o his co llecting and then we n t hometo b ed . La ter he ca lled D r . Baker, a Midd leb o ro u gh physician ,

who treated him u ntil he was sen t to the Brockto n Ho spita l .He e ntered the Bro ckto n Ho spital o n May 21 , a nd su b se

qu ently his right leg w a s ampu tated ju st ab o ve the knee byD r . Barrett o f Bro ckto n . Du ring the perio d b e twe en the

date o f in ju ry a nd the o peratio n he had mo re o r le ss pain allthe time . The memb er pained mo re when he he ld it d ownthan when he had it up. He w a s n o t co n scio u s a ll the time ,a nd do e s no t re call a repre se ntative o f the in su rer coming tothe ho spital to see him .

D r . Michae l F . Barrett, called by claimant , te stified that heis a practicing Su rge o n a nd a memb er o f the staff o f the

Bro ckto n Ho spital . He was summo ned to appear at the he aringwith the ho spital re co rd s . He knows Mr . Braley, who wasadmitted to witne ss ’ service o n May 21 , 1919 . The m an had

gangre n e o f his right fo o t , and the re co rd s show that he wasadmitted o n the 2l st o f May, 1919 , at 5 P .M . , that he wassixty-o ne years o f age ; o ccu patio n , agent . The family histo ryis u n impo rtant a s re lating to the co nditio n . Past histo ry wasu n impo rtan t , the m a n never having had a ny spe cial d iseases .Patie n t was we ll deve loped a nd no u rished , co nscio u s a nd

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ratio nal , b u t talked in a manner that su gge sted cerebral d istu rb anc e . Pu pils acted to light a nd d istan ce . There was no

d ischarge from the n o se o r ears, no gla nd u lar e nlargeme n t o f theneck . The che st w a s we ll deve loped ; no tendern e ss o n pal

pa tio n . The lu ngs were negative ; heart regu lar , apex b e at inno rmal po sitio n , and su gge stio n o f mu rmu r at apex . Ab d ome nwas negative . Lo wer extremitie s : le ft , negative ; knee jerkspre se nt and active , no Bab in ski ; right , knee jerk pre sent .The limb from the lower third to the to e s w a s swo lle n a nd

there appeared to be ne cro tic tissu e ab o u t d istal part Of greatto e , a nd small to e appe ared b lack . The fo o t w a s te nder topalpatio n . At the lower third was see n a we ll-d efined line o f

dem a rcatio n . The general co nd itio n o f the pa tien t was fair.

Genera l co nditio n o f patient o n the 25th . w as u nchanged , are ao f gangrene gradu ally incre asing . At n ight the patien t b e camede lirio u s . Patie nt complained o f pain and in somn ia ; was n o t

e ating we ll . On the 4th o f Ju ne the man ’ s genera l co nd itio nw a s u nchanged . Patient was prepared fo r operatio n and rightleg was ampu tated a nd right thigh at u ppe r third ; go o d flap,

vesse ls tied up. The femo ral arterie s showed thrombo sis ab o veampu tatio n . The re st Of the reco rd is ge neral as to the man ’sgradu al impro veme nt thro u gh co nvale sce nce a nd healing o f

the wo u nd . The patien t was discharged re lieved o n Ju ly 1 1 .

The stump he aled n ice ly a nd there was no d ischarge from the

wo u nd . There were in stru ctio n s given as to fu rther tre atmen t .There were o ther te sts that showed certain things a b o u t thepa tien t ’s physical co n d itio n b e side s wha t was appare nt o n

Ob servatio n . The ho spital reco rd is mad e o u t by the ho u seOfficer . Be side s wha t he has already inco rpo rated in his

repo rt , from his own o b serva tio n there w a s n o o ther d ise a sethis m a n w a s su b je cted to o r su ffering from , b u t he has the

gen eral reco rd s o f pa tients u nder his in stru ctio n s which givehim gen eral info rmatio n ab o u t them . The re co rd s indicatethat examinatio n o f u rine showed the m a n had some kidneydistu rb an ce , and a co nd itio n o f the femo ral artery ab o ve the

po in t o f ampu tatio n . In a general way, the kidn ey co nd itio nwas n o t serio u s , b u t showed the m an had kid ney d istu rb an ce .

This co nd itio n is n o t u nu su al in a m a n o f this age . It d epend su po n the in terpreta tio n o f

“u nu su al .” One expects to find a

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po sing cau se o f ga ngre ne . A m an who se co nd itio n is abso lu teas to he a lth wo u ld no t have gangre ne in the fo o t fo llowingsu ch in ju ry . The plu gging a b ove po int o f ampu tatio n , witho u tin ju ry to the ankle , wo u ld no t n ece ssarily have cau sed gangre ne .

Cro ss-examined , D r . Barrett stated that by kidney distu rbance he mean t the find ing o f slight trace s o f alb u min a nd ca sts ;it wo u ld mean that Mr . Bra ley had kidney irritatio n o r dise ase .

There is no o ther accepted term fo r the d ise ase , b u t it is c omm o nly known amo ng lay peo ple as Bright

’s disease . There are

vario u s types o f d isease o f the kidn ey, depe nd ing u po n whetherthe bo dy of the kid ney is a ffected a lo ne o r the lin ing o f the

tu b u l e s , o r comb in atio n o f the tw o . First, there were rarecasts, then o ccasio nal , a nd last, co arse granu lar casts . Witne ssd o e s no t think there is a ny medical name fo r Bright

’ s dise a se .

The term o f Bright ’s d isease is no t accepted as a pro per term .

There is su ch a tro u b le as nephritis which mean s inflammatio no f the kidney . Mr . Braley ha d nephritis . Nephritis is a wellknown med ical term . Mr . Braley had nephritis to some d egreewhe n examinatio n was made . Whether it was a cu te o r chro n ic,witne ss do e s n o t kn ow . Blo o d pre ssu re was 130, a nd waswithin the a ccepted n o rmal l imits . Witne ss d o e s n o t knowwhat no rmal b lo o d pre ssu re is and thinks n o b o dy does . No r

mal blo od pre ssu re me a n s ab o u t the same as no rmal pu lse .

He ca nnot say what a perso n ’ s no rma l pu l se m ay b e ; it mayb e 60 o r 80 o r 90. No rma l pu l se fo r the average is 72, a nd itis the same with b lo o d pre ssu re . Thromb o sis mea n s plu gging,a nd is fo rmed by se ttling . It is a blo o d clo t . Witne ss amputated the patie n t ’s leg above the kne e . Ab o ve the poin t wherehe ampu ta ted , tha t is , ne arer to the thigh, somewhere in the

femo ral a rtery, was a plu g kn own as thromb o sis . The pro ba b ility is that a particle came o ff from the circu latio n somewhere e lse and sto pped there and then grew o n itse lf . In the

b eginning it was a n emb o lu s o r trave ling plu g , and then hecame thromb o sis , o r a fixed plu g, a nd shu t o ff the ve sse l b e lowthat po int . He saw the thromb osis . When he ampu tated thea rtery be low it he co u ld see the thromb o sis . Right at thepo in t o f the cu tting Off o f the artery w a s this thromb o sis . One

co u ld se e it a t the c u t e nd o f the artery and co u ld fee l it fu rther o n . Whe n he c u t o ff the artery, b lo o d d id no t come o u t

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a s there was a to u rn iqu et o n it . If he had n o t pu t a to u rn iqu e t o n it b lo o d wo u ld no t have come o u t o f the artery u nle ssthe plu g had b e e n d islod ged .

"

This plu g was su fficien t to stopthe flow o f blo od thro u gh the femo ra l artery . He sho u ld saythis was a comple te thrombo sis from wha t he saw o f it at amputa tio n . This plu g may have come from the he art, b u t mo stlike ly from the kidney . If it did come from there , tha t wo u ldb e evide n ce that Mr . Bra ley w a s su ffering from a disease o f

the he art o r o f the kidney . This type o f ga ngre ne u su a llystarts a t the mo st distan t po in t . The re a son fo r gangren estarting is b ecau se the circu la tio n is low at tha t particu lar po in t .The arterie s b ring the b lo o d to yo u r fingers a nd the ve in s takeit awa y, and if the the artery tha t b rings the b lo o d down to aparticu lar finger is shu t o ff, a nd the finger is getting n o no u rishmen t, the tissu e s will comme nce to d ie ; tha t is gangre n e . Aperso n m ay have the kind o f ga ngre ne which Mr . Bra ley had ,never having rece ived a kn own inju ry o f a ny so rt . There are

at le a st tw o b ig a rterie s tha t su pply the leg, the femo ralartery and the pro fu n d a , which is a b ra n ch o f the femo ralartery tha t come s a b o u t o ne and a half inche s b e low the Po u

part l igament . In a gen era l way the femo ra l a rtery come sd own fro nt and d own the b a ck . Bo th the femo ral a nd pro

fu nd a arterie s , o r e ither, su pply the lower leg b e low the kn ee .

Bo th o r e ither o f them su pply the fo o t . Witn e ss d o e s n o t

know if there w a s any plu gging in the pro fu nda . It is n o t

po ssib le tha t there w a s a comple te plu gging in the pro fu ndaartery, b e ca u se the m an had circu la tio n b e low that po in t . He

d o e s n o t know ab o u t the po ssib ility o f there having b e en apartial plu g in the pro fu nda a rtery . If there were su ch plu gging, it co u ld n o t have b e en su fficie n t to shu t the b lo od Off .

The b lo o d came thro u gh, b u t the m an may have had partia lplu gging in any ve sse l a s fa r as witn e ss knows . One m ay havethromb o sis witho u t shu tting the b lo o d Off comple te ly. The

o rd in ary type o f thromb o sis, as this was , is the comple te shu tting o ff . Do cto rs d o n o t kn ow ab o u t thromb o sis tha t ha s no t

shu t o ff circu latio n . Mr . Bra ley d id have arterio sclero sis to theaverage exte n t every m an o f sixty years wo u ld have it . Blo odpre ssu re of 130 wo u ld no t indica te that the m a n had arteriosclero sis, a nd wo u ld no t ind ica te that he d id n o t have arterio

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sclero sis . Ju st the stating that the m an had b lo o d pressu re o f

130 does n o t me an anything . With that sign alo ne he wo u ldsay the m an d id n o t have it . Comple te plu gging o f the femo ra lartery might no t cau se a ny impa irment o f the circu latio n ifthe o ther ve sse ls had a chance to take care o f the situ atio n ; itmight tie u p the femo ra l artery a nd still give the m an per

fe c tly good circu l a tio n in the leg . One might tie the femo ralartery above a certain po int and have perfectly good circu latio n ; he ha s d o ne that himself in side the b e lly to save the leg.

A person with he art trou b le who se femo ral artery is comple te lyplu gged may have some impa irme n t o f circu latio n thro u gh thepro fu nda artery . Witness cann o t say that Mr . Braley wo u ldn o t have had gangrene in his fo o t had he never twisted hisankle o r tu rned his ankle o n April 12. He d o e s no t think it istru e that the ma n ’ s heart a nd kidney . c o nd itio n and the c om

plete plu gging o f the femo ra l artery was ad equ ate cau se fo rgangren e o f the fo o t . Mr . Bra ley co u ld no t get gangrene o f

the fo o t witho u t the shu tting o ff o f circu latio n , a n d still he hadcircu latio n except in the femo ra l artery . He d o e s no t kn owwhy the patie n t sho u ld have gangrene witho u t some immedia tething . Witne ss knows that Mr . Bra ley ’s leg was supplied withb lo od , b u t no t thro u gh the femo ra l artery, b eca u se he saw itw a s no t . The leg w a s su ppl ied we ll en o u gh with b lood incertain parts to n o u rish it pro perly, that is , he go t circu latio nbe low the po int o f ampu tatio n in his thigh ; he had it .a t the

knee and the b lo o d came from somewhere . Ord inarily he am

pu ta te s at the po in t o f e le ctio n . The thromb o sis was in the

thigh. Po in t o f e lectio n mean s the b est o b ta inab le po in t .With gangre n e o f the fo o t , d epen d ing o n the cau se o f gangren e ,the leg a nd thigh o u ght to b e ampu tated at a s high a po in t aspo ssible . If this were the su gar o r diab etic ga ngrene , o pera tio nsho u ld have b e e n do ne still higher than this . The fa ct tha tthe m an had thromb o sis in the femo ral artery at the po in t o fampu tatio n had n o b earing o n the type o f o pera tio n to b e d o neb e fo re o peratio n w a s comple ted . Be fo re they saw the thromb o sis witne ss d id n o t know a ny way to te ll there was thromb o sis in tha t ve sse l . Witn e ss wo u ld ampu tate above it if heco u ld get it, b u t he wo u ld have to know it was there . If thishad been su gar o r diab e tic gangrene he wo u ld have ampu tated

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If he were to ld the m an wo rked tw o weeks after the in jury , hewou ld say it was a b ad thing fo r the strained a nkle . If thema n had wo rked tw o weeks after the inju ry a nd wa lked aro u nd ,he sho u ld say that this fact had a go o d de a l o f influ ence o n thesu b sequ e nt gangre ne . It wou ld make it wo rse , mo re de finite lyprodu cing the cau se , as the m an was co ntinu ing to do damageto that fo o t by walking o n it . In walking o n the fo o t them a n con tinu ed to strain that part already strained b y the inju ry . Q .

“ If it were a fact he d id work fo r a wee k o r tw o

walking aro u nd a nd that mad e it mu ch wo rse , the chance s a reif he d id go immed ia te ly to bed , he might no t have had ga ngre ne at all ? ” A .

“That is a fair an swer . He might no t

have had .

”

Upo n fu rther examina tio n the docto r te stified that he saw an

age n t o f the ins urer a t his o ffice . He does no t know whe thero r no t any age n t ta lked with Mr . Braley . The agen t did no t

say he had talked with him . Of co u rse , a m an c an ge t gangreneo f a part from thromb osis o f the artery abo ve it . The thromb o sis , o r plu g, w a s pre sen t b e fo re witness ampu tated the leg ;

how lo ng b e fo re , he d o e s no t kn ow . It was n o t a blo o d clo t ;it w a s a n o rgan ized thrombo sis which antedated o peration .

Thromb o sis in that main artery in itse lf wo u ld n o t have ne c e s

sarily pro d u ced ga ngrene , provid ed the b lo od su pply was go o din the o ther ve sse ls, go o d eno u gh to su pply the lower thigh,kne e a nd part o f leg. The pro fu nda be ing free , a nd circu latingthe blo o d to the lowe r part o f the limb , wou ld b e su fficient tosu stain circu latio n . From the sto ry, he wo u ld say that thein j u ry to the ankle w a s a very good cau se o f pro d u cing o f

gangrene in this particu lar case by shu tting o ff mo re b lo o dsu pply to the fo o t . In his o pinio n , this m an might have go neo n his n o rma l perio d o f allo tme n t witho u t having deve lo pedgangrene , in the ab sen ce of some immed iate ca u se . Gangre neo f a part is the re su lt o f some immediate in ju ry, a m an cu tshis to e a nd ge ts gangrene . If a m a n who cu ts his to e ha s

go o d b lo od he will no t have gangre ne . Abo u t the only timea m an who cu ts his to e gets gan grene is when he ha s diabe te so r a ny o ther predispo sing cau se . He ha s known o f gangre nere su l ting from a c u t o n the to e witho u t the pre sence o f su garin the b lo o d o r u rin e . Gangre ne o f the to e c a n come from a ny

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inju ry to the to e that ha s b ehind it any in terferen ce with cirenla tio n , whe ther se n ile o r d iab etic . A m an is mo re like ly to ge tgangre n e from a c u t o n the to e whe n he ha s d iab ete s than whenhe do e s no t have it . There have b een lo ts o f case s where thereha s b een n o histo ry o f in ju ry and gangren e ha s appeared in thefo o t and tha t gangrene ha s re su lted from thrombo sis a nd the

leg ha s had to b e ampu tated . The thromb u s ha s to b e properly situ a ted to shu t o ff the who le blo o d su pply .

D r . Le o nard A . Baker, called by cla iman t , te stified tha t heha s b e e n a practicing physician in Midd leb o ro u gh fo r ab o u tfo u r years . Previo u s to his e ngagemen t in genera l pra ctice hewas physician at the State Fa rm in Bridgewater . He wascalled to atte nd Mr . Braley in April o r May o f this ye ar, b u td o e s no t rememb er o n what d a te . Witne ss ma de several ca llso n emplo yee , b u t d id no t take his re co rd o f the se d a te s to thehea ring . Whe n he first called u po n Mr . Bra ley he fo u nd the

in ju red fo o t grea tly swo lle n and very te nd er . The m an w a s

su ffering severe pain , so mu ch so he co u ld no t ke ep qu ie t a ndw a s to ssing ab o u t the b ed . Of cou rse , stepping o n the fo o t w a so u t o f the qu e stio n . He d iagn o sed the ca se a s strained ankle .

Mr . Braley to ld him he stepped o ff the sidewalk, o r something,a nd hu rt himself . Whe n he se nt the patie n t to the ho spita l heco n sid ered the ca u se o f ga ngre ne w a s in ju ry to the ankle .

Cro ss-examined , D r . Baker stated tha t a stra in is the tearingof tissu e s and e ffu sio n o f flu id s in to the part . A sprain u su allyis the slipping o r d isplaceme n t o f b o ne s which go back intopla ce afterward s . Witne ss co u ld n o t say which is more painfu l . A stra in is mo re serioUs . E ither o ne is very painfu l . Asevere sprain is qu ite painfu l a s we ll as a strain . Witne ss c o nsid ered this a severe strain . He sho u ld n o t say it was c om

m o n , as a ru le , fo r a m a n to wa lk aro u nd fo llowing a seve restrain . Pain is cau sed by swe lling o f the tissu e s . Severald ays prio r to the he aring co u nse l fo r the claiman t to ld himthere was to b e a hearing , b u t he ha s n o t had time to think o f

this case o r that he might n eed his reco rd s . Witne ss can no tsay how lo ng after the in ju ry he saw Mr . Bral ey . He n everhad a case o f strain o f the ankle re su lting in gan gre n e b e fo re ,and hope s he never will have ano ther . In his practice it ha sb e en ra re to have su ch a sequ ence o f eve n ts .

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At this po in t it was agreed that the docto r b ring in his

re co rd s later . The se reco rd s showed tha t he w a s first called totreat employe e o n April 28. He mad e e ight ca lls, the lastbe ing o n May 21 , whe n he sen t the m an to the ho spital .Cro ss-examined , Mr . Braley stated that several time s after

April 12 he wo rked b u t had to give u p. The acciden t o ccu rredo n Satu rd ay, and he called o n D r . Baker o n Mo nda y , at hiso ffice . He d id n o t wo rk tw o weeks after the in ju ry . He triedto wo rk b u t co u ld no t , and had to ge t a co nveyance to carryhim b ack home . It w a s very nearly tw o wee ks he tried to

wo rk . When he wen t in to the o ffice o n April 12 he told Mr .Lightb o nd tha t he had strain ed his ankle getting Off the c a r .

He thinks he had b re akfast at home that mo rn ing . Almo stalways he had his b reakfast at home , b u t o nce in a while hewo u ld get a lu n ch in the re stau ran t . Witn e ss live s with hisda u ghter and her hu sb and in the ir ho u se . He pa id his dau ghter$6 a week . His dau ghter had a ho u sekeeper who almost always

go t up and gave him his bre akfast . On the mo rn ing of April12 he pro b ab ly le ft home at twen ty minu te s o f 8 o

’clo ck . He

l ive s o n Clear Po nd Ro ad . He had a n appo intmen t o n thi smo rn ing to me e t a m an at the sto re , and fo r that re aso nstarted a little might earlier . The first thing he d id u po nleaving the ho u se was to go o ver to the sto re and mee t Mr .

Ca swe ll . Mr . Ca swe ll lived o n the road to Precinct, a smallvillage . This man ’ s so n had a $500 po licy with the company,a nd a 15 cen t po licy o n his wife . Witne ss w a s there the d ayo r tw o b e fo re and had co lle cted from him and his wife , a nd Mr .

Ca swe ll made the appo intmen t to bring the mo ney up fo r the

b oy that mo rn ing . Mr . Caswe ll did no t pay him the premiu mo n the $500 po licy tha t mo rn ing . The c ar coming fromMidd leb o ro u gh to New Bedfo rd pa sse s by Mr . Caswe ll ’s sto re ,so at Lakeville , Fo u r Co rners , witn e ss bo arded a c ar go ing inthe d irectio n o f Middleb o ro u gh . On the c ar he m e t a m an

who was a pro spective cu stomer, a nd talked with him ab o u tb u ying a po licy. Witne ss d id no t have a n appo intmentto me e t this cu stomer . Du ring the ride toward Middleb o ro u ghthey discu ssed the b u ying o f this po licy , b u t the m an did no t

b u y it that mo rn ing. Whe n the c ar arrived in Middleb o ro u ghit stopped in fro nt o f the waiting statio n o n Main Street .

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qu arterly, semiannu ally, ann u ally or in advance . On an

o rd inary insu rance he sold he w a s paid a commission . The

commissio n amo u nted to ab o u t 40 per ce n t o f the first-yearpremium . In du stria l in su rance is in su ra nce where a personpays so many cen ts a week . From the time he left home inthe mo rn ing o f April 12, 1919 , u ntil he repo rted to the o fficeo f the John Han cock Mu tu al Life In su ran ce Company in

Midd lebo rou gh the only”

bu sine ss he transacted was ta lkingwith Mr . Ca swe ll regarding a $500 po licy o f his so n , and

ta lking with a m an o n the tro lley c ar with re fere nce to apo licy, b o th o f which po licie s were ord inary in su rance . On

this mo rn ing be fo re le aving his home he collected premiumsfrom peo ple in the ho u se where he b o ard ed , that is , from the

ho u sekeeper a nd Mr . Lawren ce . Mr . Lawren ce had a n o rdinaryin su rance, and his children and wife had ind u strial insu ran ce .

The ho u sekeeper had an ind u strial insu rance . If he cou ld , healways co llected o n Satu rday mo rnings from the peo ple who

l ived in his hou se . Mr. Lawre nce wo rked at the c ar barn and

wen t to wo rk at 1 1 o’clo ck in the morn ing . He always b ega n

his co llectio n s o n a Sa tu rday mo rn ing, and the se po licies wo u ldbe all he had b e tween there a nd Middlebo ro u gh, so he c o l

le c ted the paymen ts'

o n the se five policie s d own there o n aSatu rday . He live s a mile and t hree-qu arters from the JohnHan co ck office . He su ppo se s the company wou ld have n o

o bje ctio n to him getting up a little e arl ier in the mo rn -ing

and walking to wo rk. Witne ss co u ld have wa lked to wo rk ifhe had see n fit to d o so . The company wo u ld have had n o

ob jectio n to him driving a. ho rse and wago n to wo rk a nd

aro u nd his ro u te , n o r wo u ld it have objectio n to him u sing a n

au tomo b ile to co ver his rou te . He co u ld u se a ny reaso nab lemetho d to go ab o u t his bu sine ss . Had he no t m e t with the

accid en t o n April 12 and no t sto pped in to ge t a c up of co ffe ehe wo u ld have arrived at the o ffice in Mid d leb o rou gh at ab o u t

o r o’clo ck . Witn e ss d id no t u su ally do this , b u t

some time s did . On April 12, if he had no t hu rt his ankle hemight have go ne in to the re stau ran t to get a c u p of co ffee ,and again he might n o t . He never ro de b eyo nd the waitingsta tion ; he alway s go t o ff there . As far a s walking was c o ncerned , it was ne arer fo r him to have stayed o n the c a r u n til

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he go t to Caswe ll’s mu sic sto re . Witne ss cou ld no t say what

it was his in tentio n to do when he go t o ff the c ar o n the

mo rn ing o f April 12. He might have inte nd ed to go to the po stoffice . Witne ss qu ite o ften we n t into the po st Office and gotthe ma il a nd to o k it u p to the o ffice . They had a lo ck box.

He cou ld no t say, b u t he might have been go ing into the

Cen tral Café to get a c up o f co ffee , o r he might have bee ngo ing to the cigar sto re to get a ciga r, o r to the sto re to b u ya pair o f garters o r sho e strings fo r himse lf . Witne ss cou ld no t

say what w a s o n his mind tha t mo rn ing . He might have b ee ngo ing into the clo thing store to pu rcha se a co llar o r n ecktie ,b u t he has no reco llectio n . He ha s no t wo rked since his o peration . He o fte n d id go o u t a t n ight to see pro spective c u s

tom ers , a nd ha d a right to ta ke su ch cu stomers to the the atreo r movie s, o r u se his ow n me tho d s o f trying to sell in su rance .

He w a s free a s to the time and place he co u ld see a cu stomer .

Whe ther o r no t he cared to call o n a pro spe ctive cu stomero n a rainy n ight was le ft en tire ly to him . His stump washea led whe n he le ft the ho spital . It he aled d u ring the firstfive we eks . In his opinio n , this showed his b lo o d was inpre tty go o d co nd itio n . Witne ss had no t inqu ired o f Mr .

Filleb row n o r Mr . Lightb o nd a s to whe ther o r no t there w as

any wo rk in the o ffice he co u ld d o . Fo r a certa in le ngth oftime he might b e ab le to do o ffice work where he co u ld sit ina chair , b u t as his circu latio n b o thers him a little now he

co u ld no t sit a gre at while a t a time . Had he n o t inju redhis ankle o n the mo rn ing o f the 12th Of April , he wo u ld havearrived a t the o ffice somewhere a ro u nd o r o r sometime within a few min u te s after he had go t o ff the c ar . Thenhe wo u ld have go ne o u t co llecting . Witne ss wo u ld n o t callMr . Lightb o nd

’

s atte ntio n to the fact that he was go ing o u t .

He wo u ld no t lo o k to se e if he had any mail , as his mail cameto the post o ffice . After arriving at the o ffice tha t mo rn inghe was go ing to the Star Mill . He ha d perso n s in the StarMill who were o n his ro u te o r d eb it . On ly o nce in awhile d ida ny of his mail go down to Lakeville , Fo u r Co rners ; he go tmo st of the mail at the po st Office .

Upo n fu rther examina tion the claiman t te stified that aftermaking the five co lle ctio n s at Clear Po nd Ro ad , and going to

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the sto re , he b o arded the c ar to Middleb o ro u gh . Whe n heto ld Mr . Lightbo nd what ha d happened to him his fo o t painedand

“ fe lt fu ll . Mr . Lightb o nd inqu ired ab o u t his co nd itio na nd wro te it d own . Witn e ss told him he had strain ed hisa nkle . He thinks Mr . Lightb o nd asked him if he had fallend own . He was s itting down in the o flic e when Mr . Lightbo nd

saw him . Mr . Lightbo nd d id n o t se e him come in . He c o l

le c ted o n o rd in ary insu ran ce po licie s fo r the o ffice . After hehad so ld the po licy to a m a n he co llected o n it , a nd eve na fte r the m an had pa id his ye ar he still co ntinu ed co lle ctingu nder the c flic e in stru ctio n s . The fo rm come s down , a nd whenhe is go ing o u t to co llect , the assistan t su perinte nde n t give shim the se fo rms o r n o tificatio n s . He rece ive s a commissio no n his co lle ctio n s . He had be e n a u tho rized to co llect o n the

$500 po licy .

Co u n se l fo r in su re r requ e sted tha t the in ju red m a n b e ex

am ined by an impartial physician fo r the pu rpo se o f asce rtaining whe ther o r n o t the gangre n e was the re su lt o f the tu rn o f

the ankle . He sta ted that if the impartial physician says thereis co n n ectio n , the in su rer sha ll no t wa nt to pu t in evidence tod ispu te it, b u t tha t in the even t o f n o impartia l examinatio nbeing mad e he wo u ld like a n o pportu nity to reb u t the te stimo ny o f D r . Barre tt .

After the hearing the employe e , at the requ est o f the Commissio ner, was examined b y D r . Howard , an impartial physic ia n , who repo rts as fo llows

At . 8716 .

Ca se o f Henry W . Bra ley, Clear Po nd Ro ad , Lakeville , Mass .

Employer : John Han co ck Mu tu a l Life Insu ran c e Company.

Date o f a c c id ent : April 12, 1919 .

Da te o f exam ina tio n : Jan . 16, 1920, a t pa tient’s home .

Patient’s ac co u nt of the a c c iden t : On April 12, 1919, he c la im s that he

took the 8 o’c lo ck c ar for Mid dlebo ro u gh, and when he w ent to step off

the c ar at Midd leb o ro u gh, tu rned his right ankle “b ad ly .

” He felt fain tand w ent into the Centra l Cafe, go t a c upo f coffee , and to ld the c ond u cto r

o f the ca r that he came u p o n wha t had happened . He tried to go fromthere to the Star Mill , b u t b efo re he co u ld get there he was ob liged to gointo the gro c ery sto re and take Off his sho e , and here he fo u nd his rightankle was swo llen and red , and it be came exceedingly pa infu l . He sa t

there for a while and then started for the Star Mill , and on arriving there

to ok ofi his sho e aga in and gave up, and Mr . Gilligan to ld him he wo u ld

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The eviden ce shows tha t o n the mo rn ing Of the accident theemployee had commenced his work by co llecting premiumsfrom people in the ho u se whe re he b oarded , that is , from the

ho u seke eper and from Mr . Lawrence , in acco rdan ce with hisu su al cu stom o n Sa tu rday mo rn ings ; he also talked with a Mr .

Ca swell regarding a $500 pol icy, and with a pro spective risk o n

the tro lley c ar, o n the way into the office , with re ference to thewriting o f a po l icy fo r and he was o n his way to repo rtat the Office when he rece ived the in ju ry which in capacitatedhim .

While it is tru e that u nder cro ss-examin a tio n insu rer ’s co u n se lo btained affirmative replie s to a serie s of qu estion s to the e ffecttha t the emplo yee might have b e en go ing into the Ce ntral Caféto get a c up o f co ffe e , o r might have be en go ing to the cigarsto re to get a cigar, o r might have been go ing to ge t a pair o fgarters , etc . , o r might have b ee n go ing d irectly to the o ffice o f

the su b scrib ers, the fact remain s that in acco rd ance with hisin ten tio n at the time he le ft his b o ard ing place , where he hadco lle cted premiu ms d u e the company, he b o arded a tro lley c ar

which to o k him d irectly to the o ffice o f his company, and he

d id , in fa ct , alight from the c ar at the n e are st po in t to the

o ffice . The qu e stio ns o n cross-examinatio n were pu t in a n

affirmative manner by co u n se l a t a time when the emplo yee ,du e to the in ju ry and its e ffe cts , a s we ll as the strain o f ex

amin atio n , w a s tired and no t me n tally a lert . The Bo ard m em

her is sa tisfied from his ow n Ob serva tio n o f the employe e , hisma nner o f te stifying, a nd u po n a ll the evide n ce , tha t n o tw ithsta nd ing he might possib ly have do n e any o ne o f the thingswhich co u n se l su gge sted he might d o , it was his inten tio n to ,

a nd he d id in fact, go d irectly to the o ffice o f the su b scribers .Immed ia te ly a fte r repo rting to the su b scrib ers he in fo rmed hissu perinten de n t o f the o ccu rren ce o f the in ju ryWhile the emplo ye e is no t cle ar as to why he fe ll , the fa ct

is tha t he d id fa ll and tha t the risk of accide n tally fall ing whiledeparting from a n e le ctric c ar is incide n ta l to the u se o f su cha c ar . Fa lls a nd missteps while de scend ing sta irways are so

commo n a s to b e within the ma tters o f which ju d icia l knowledgem ay b e take n . As the co u rt ha s said : “ If the inte sta te (o remplo ye e) had fa llen and rece ived the in ju rie s she d id while

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active ly e ngaged in the perfo rma n ce o f her d u tie s, the risk a nd

harm o f that fall wo u ld have b ee n an incid e nt a nd ha zard o f

her emplo ymen t, a ltho u gh the cau se o f her fall might re st inpu re co n jectu re a nd spe cu la tio n .

”Se e Ha lle tt ’s Case , 232

Mass . 49 . And aga in , in Dow’s Case , 231 Mass . 348, a nd in

Su nd ine’

s Case , 218 Ma ss . 1 , the risk o f a fall u po n machinery,o r u po n steps o r pa ssageways , o r o ve r o b stru ctio n s to trave l , isa ha zard to a degree commo n to a ll perso ns who en ter o r se ekto e nte r a man u fa cto ry o r a merca ntile b u ild ing o r o ther b u ilding fo r b u sin e ss o r fo r ple a su re . Se e also Co x ’s Ca se , 225 Ma ss .220; O

’

Brien’

s Ca se , 228 Mass . 380.

This case is within the ru le la id down in Mo ran ’s Case , 234Ma ss . 566 , d ecided Jan . 9 , 1920, where it was stated tha t“the immed ia te rea so n Of his le aving home to take the e le

va ted c ar was to make certa in co llectio ns and to so l icit someo rd inary in su ra n ce ; this emplo ymen t compe lled him to

make u se o f the pu b lic stre e ts , to rid e in stree t cars , to ca llu po n pro spective pu rcha sers o f new in su rance a nd to makeco llectio n s o n his ro u te .

”So , to o , in this case the employee

ha d b ee n engaged in making co lle ctio n s and w a s o n his wayto the o ffice with papers a nd b o o ks ne ce ssary to his wo rk in theo ffice when he re ce ived the inj u ry . As in Mo ran ’ s Case ,

“the

wo rkm a n to d o the wo rk o f his emplo yment mu st co n tin u allysta nd in dange r o f re ce iving a n in ju ry from accide nts re su ltingfrom expo su re to whatever risk and hazards are commo n ly at

te nd ant o n the u se o f pu b lic stree ts a nd co nveyance s ; whichrisks to him are greater b ecau se mo re co n stan t than tho se thata re incid enta l to the o cca sion a l a nd ca su al u se o f su ch stre e tsby perso n s who u se them in the o rd inary w ay .

”See also

Ke aney’

s Ca se , 232 Ma ss . 532.

The insu rer pre se n ted no med ical evide nce in the ca se , ap

pa re ntly being co n ten t to re st o n the repo rt o f a n impa rtialphysician which is in the re co rd . This impartial report , plu so ther medical evid e nce , satisfie s the Bo ard memb er that thereis a cau sal relatio n b etwee n the employe e ’s co nd ition and the

in ju ry o f April 12, 1919 , and I so find .

The emplo ye e ’s average weekly wages were mo re than $21 aweek, a nd he is e n titled to to tal incapa city compe n satio n d a tingfrom April 22, 1919 , at the maximum rate o f $14 a wee k, su b

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je c t to the pro visio n s o f the a c t , the su m d u e to Dec . 3, 1919 ,

the d ate o f this hearing , b e ing $450.

The inju ry re su lting from the fall while ge tting o ff the

e le ctric c ar, a nd co nd itio ns arising the re from ne ce ssitated the

ampu tatio n o f the emplo ye e ’s right leg, and add itio nal c om

pe nsa tio n is d u e the employe e fo r a pe riod o f fifty weeks at$10 a week, d ating from April 12, 1919 , the amo u nt d u e to

D e c . 3 , 1919 , the d ate o f this he aring, b e ingAs to the qu e stio n raised by the in su re r with regard to

knowledge o f the inju ry which ha s b ee n raised , the employe rhad knowledge o f the inju ry within the mean ing o f Part II ,se ctio n 18, thro u gh the su perin te nd en t, Mr . Lightb o nd , who

knew o f the in ju ry within a half ho u r after its o ccu rre nce , thesu perin te nde nt having had fu ll o ppo rtu n ity to o b serve the em

plo ye e and his co nd itio n at the time knowledge o f the o ccu rre nce w a s co nveyed to him .

The employee is no t a n ind epe nd en t co n tra cto r ; he is a n

emplo ye e ” u nde r the act , rece iving a spe cific su m each weekfo r his ro u tine co lle ctio ns , a nd in ad d itio n , a b o n u s fo r writingup new b u sine ss . He w a s su b je ct to the co n tro l a nd d ire ctio no f his employe r, a nd was no t in a ny legal se n se a n indepe nde ntco n tracto r .

JOSEPH A . PARKS .

FIND INGS AND DECISION OF THE INDUSTRIAL ACCIDENT BOARD .

The in su re r having filed a cla im fo r review , the Ind u strialAccid e n t Bo ard he a rd the pa rtie s o n Thu rsd ay , March 18, 1920,a t Bo sto n , Mass .Pre se nt : Me ssrs . Ke n nard (cha irma n), Dickin so n , Gle aso n ,

Do n ahu e and Co gswe ll .Appe a ra nce s : J . V . Su lliva n , E sq .

, fo r employe e ; Me ssrs .Sawye r , Hardy, Sto n e a nd Mo rriso n (Gay Gleaso n , E sq . , o f

Co u n se l) fo r in su rer .

Qu e stio n s : (1)Whe ther the emplo ye e rece ived a perso n a l inju ry a rising o u t o f a n d in the co u rse o f his emplo yme n t ; (2)whe ther the cla ima n t w a s a n emplo ye e u nd er the a c t ; (3)whe ther no tice o f the in j u ry w a s give n o r kn owledge co nveyedu nd e r the statu te : (4) ave rage we ekly wage .

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a near-by store . He then to o k a c a r go ing in the d ire ctio n o f

Midd leb o ro u gh . Du ring the rid e to Midd leb o ro u gh he ta lkedwith a m an he m e t o n the c ar a nd a pro spe ctive cu stome rabo u t b u ying a po l icy . Whe n the c ar arrived at Midd leb o ro u gh it sto pped in fro nt o f the waiting statio n o n Ma inStre e t . The o fli c e o f the insu ran ce company is o n the samestre et , po ssib ly six ro d s from the wa iting ro om ,

”Ove r a mu sic

sto re . He co u ld have remain ed o n the c ar u n til it came to thesto re . Fo r some reaso n which d o e s n o t cle arly appe a r he go to fl

’the c ar at the statio n a s so o n as it stopped . He w a s the

la st o ne OH, a nd stepped from the platfo rm o f the c ar d own o n

to the step . He carried his grip in his le ft hand and steppedto the gro u nd o n his right fo o t . When he stepped to the

gro u nd his ankle tu rned o ve r . It d o e s no t appear what cau sedthe a nkle to tu rn . He w a s go ing to his o fli c e to repo rt b e fo rego ing o u t o n his d eb it .” On Satu rday mo rn ing he gene rallywent to the o fli c e u n le ss he had some spe cial b u sine ss thatcalled him in an o the r d ire ctio n . Assuming the accid en t happe n ed in the co u rse o f the emplo yme n t, it is d ifli c u lt to see any

cau sal co nne ctio n b e twe en the wo rk a nd his in ju ry . The tu rning o f a n a nkle is a n extreme ly commo n eve n t, and may b ecau sed by co nd itio n s o f ind ivid u al weakn e ss o r o f the physica lsu rfa ce o f the way . In the case a t b a r the re is n o evide nceu po n which it c a n b e said to have b e en pro ved that the accid en t w a s a ttrib u tab le to the risk o r hazard o f the wo rk o f the

claimant, and n o t to his ind ivid u al pecu l iaritie s o r weakne sse s .

The cau sative re la tio n b e twe e n emplo yme n t a nd in ju ry isremo te a nd spe cu la tive . The case falls within Hewitt ’s Ca se ,225 Mass . 1 , and Do nahu e ’s Case , 226 Mass . 595 ; a nd it isd istinct frOm Mo ra n

’s Case , 234 Ma ss . 152 .

It fo llows tha t the de cre e mu st b e reve rsed a nd ju d gme nte n tered fo r the in su rer .

So ordered .

Filed Ja n . 7, 1921 .

CASE NO . 9 126 . (237 Ma ss .

MARTIN ALTINOVITCII, E mployee .

WARRE N H . DAVIS , Employer .

ZE TNA LIFE INSURANCE COMPANY, Insu rer.

INSURANCE COVE RAGE .

Whe re it is provided by the po licy o f in suran ce unde r the a c t tha t such po licy m ay

b e can ce led by tw o provisio ns , it is en ough tha t the n o tice o f can ce lla tio n isva lid under o n e o f the provisio n s whi ch is n o t repugn a n t to the o the r term s o f

the po licy ; a nd whe re the e ssen tia l fa cts as to can ce lla tio n a re n o t in dispute ,

the que stio n pre sen ted by the re co rd be com e s o n e o f law . Lipm an v. Niaga raFire In s . CO . , 121 N . Y . 454 ; Fe rguso n 11. Un io n Mutua l Life In s . CO . , 187

Mass . 8, 10 ; In tern a tio n a l Fire In s . C o . Franklin Fire In s . CO . , 66 N . Y . 1 19 .

The em ployee n o t be in g a pa rty to the po licy, his asse n t to its can ce lla tio n w a s

n o t n e cessa ry . K eo ha n e’

s Case , 232 Mass . 487 .

RE PORT OF MEMBE R OF INDUSTRIAL ACCIDE NT BOARD .

The member o f the Ind u strial Accide nt Board appo in tedu nde r the provisio n s o f Part III , se ctio n s 5 and 7, chapte r 751 ,Acts o f 191 1 , a nd amendme nts thereto , having he ard the

partie s in the ab o ve-named ca se a t the Ald e rman ic Chamber,City Hall , Pittsfie ld , Mass . , o n Mo nday , Jan . 19 , 1920, a t

A .M . , repo rts a s fo llowsAppe arance s : Cande Myers (Frederick M . Myers o f

co u n se l) fo r emplo yee ; Danie l G . Campio n , E sq . ,fo r insu re r .

In a claim fo r compen satio n filed o n Ja n . 16 , 1920, the em

plo ye e gave the time o f his in ju ry as “3 o

’clo ck P .M . , Au g.

29 , the place as “wo o d lo t beyo nd On o ta Lake ; the

ca u se o f the in ju ry as se ctio n o f tre e fa ll ing o n my leg ;”

a nd the natu re o f the in ju ry as “my le ft leg is bro ken ab ovethe a nkle .

”f

The employer u nd er date o f Au gu st 30 repo rted the happening o f the inju ry o n Au gu st 29 at 3 P .M .

Qu e stio n : The in su rer co ntend s that cance llatio n o f the

su b scrib er’s po l icy had been e ffected b efo re the o ccu rre nce o f

the inju ry .

The insu rer Offered in evid en ce the fo llowing letter to the

su b scrib erAUG . 25 , 19 19 .

WARREN H. DAVIS,Grea t Barrington , Mass .

DEAR SIR: We have b een advised by o u r hom e o ffice that they areno lo nger willing to c arry yo u r in su ran ce , and have requ ested that weefle ct can c ellation o f yo u r po licy 0—0221306 dated May 1 , 1919 .

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We therefo re no tify yo u that yo u r po licy C—0221306 is can c eled ,efie ctive at 12 o

’c lo ck noo n , sta ndard tim e , Au g. 28

,1919, and the E tna

will n o t b e liab le fo r any a c c idents o c c u rring su b sequ ent to tha t tim e .

As so on as convenient o u r pay-ro ll a u d ito r w ill visit yo u r prem ises fo rthe pu rpo se o f checking yo u r pay ro lls to determ ine if any refu nd is du eyo u .

Yo u rs tru ly ,

Man ager.

The in su rer fu rther o ffe red a re tu rn re ce ipt fo r registe redle tte r signed by the su b scriber o n Au g. 26, 1919 .

The material po rtio n s re la tive to cancellatio n in the su b

scrib er ’s co n tract o f in su rance a re a s fo llows

CANCELLATION.

H . This po licy shall b e c a n celled at any tim e by either o f the pa rtieshereto u po n written no tice to the o ther party stating when therea ftercan ce lla tio n sha llxb e eflective . No tic e o f c anc ellatio n sent by registered

m ail to the a ddress o f the assu red sta ted in the w arranties hereo f sha ll b ea su ffic ient n o tic e , and the che ck o f the company sim ila rly m a iled , asu ffic ient tend er, o f any u n ea rned prem ium . If can c elled by the as su redon any d ate o ther than an anniversa ry o f the d ate o f issu e o f the po licy,u nless the a ssu red has retired from b u sin es s , the c ompa ny sha ll re c e ive o rreta in the sho rt ra te prem ium in a c c o rdan c e w ith the tab le prin ted hereo nwhich sha ll no t b e less than the m inim um prem ium stated in the w arranties

hereo f . If c an c elled by the company at any tim e , o r by the assu red o n

any ann iversary o f the date o f issu e o f the po licy, the company sha ll b eentitled to the ea rn ed prem ium pro rata when determined . In e ither c ase

the ea rn ed premium sha ll b e compu ted o n the b a sis o f the en tire w ages o r

compen satio n fo r a tw elve m o n ths’ perio d a s ind ic ated by the a c tu a l

w ages o r c ompensation earned du ring the period the po licy Sha ll haveb een in fo rc e , su ch perio d to b egin a t the d a te o f issu e o f the po licy, o r,in event o f the po licy having b een in fo rc e fo r a lo nger perio d than tw e lvemo nths , a t the la st anniversary thereo f. In any event, where can c ellatio nis a t the requ est o f the assu red , the company sha ll reta in no t less than them inim um prem ium stated in the warran ties hereo f.

Po licy No . 0—0221306 .

END ORSEMENT.

(Qu arterly Ad ju stm en t o f Prem ium . $150 Depo sit .)

1 . The advan c e prem ium stated in this po licy is no t b ased u po n theestim ated w ages fo r the fu ll po licy perio d , b u t is the sum hereby agreed

to b e pa id in c a sh u po n d elivery o f the po licy.

2. On o r b efo re the tw entieth day o f ea ch m on th su c c eeding ea ch

three-m o nth perio d u nder this po licy the a ssu red sha ll state to the c om

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Ge neral E lectric . He d id no t ask them to give him a ny o the rwo rk to d o . He c a n d o light wo rk .

Re -d ire ct : He had n o t tried to ge t a ny wo rk u ntil lastweek, when he wo rked at the Ge neral E le ctric .

It w a s agreed by co u n se l that o n Au g . 28, 19 19 , the date o f

the attempted ca nce lla tio n o f the po licy, there was n o thingd u e the su b scrib er from the in su re r, b u t , o n the co n trary,there was a balance d u e the in su rer o n the premiu m .

Member’

s D ec isi on .

The evid en ce in this case shows , a nd I so find , that the em

plo ye e rece ived a pe rso nal in ju ry in the co u rse o f a nd arisingo u t o f his emplo yme nt at from 3 to P .M . o n Au g . 29 , 19 19 ;

that o n Au g . 25, 1919 , the in su rer se nt to the su b scribe rn o tice o f ca nce llatio n to take e ffe ct Au gu st 28 at n o o n , a nd

that this no tice was re ce ived by the su b scrib e r o n Au gu st 26 .

The evide nce shows co verage by a po licy extend ing fromMay 1 , 1919 , to May 1 , 1920. The in su re r re lie s o n terminatio no f this co n tract as its de fe nce . The b u rden o f pro ving c a n

c e lla tio n is u po n the in su rer . Ru nkle v. Citize n ’s In su ran ceCO .

, 6 Fed . 143 ; Gomila v. Hib ern ia In su ran ce CO . , 40 La .

Ann . 553 , 4 So . 490; American Fire In su rance Co . 0 . Bro o ks ,83 Md . 22, 34 Atl . 373 ; McCartney State In su ranc e CO . ,

45 Mo . App . 373 .

In the po licy here there a re tw o pro visio n s in regard to c a n

c e llatio n , o ne set fo rth in agre eme n t H in the po licy, a nd the

o ther co ntained in the e nd o rsemen t attached to the po licy.

Whe ther, u nd er agre eme nt H , a te nder o f u n earned premiu mis a co nd itio n pre ced e nt to e ffe ct a can ce llatio n is u n ne ce ssaryto d e cide he re , as it is admitted that there w a s n o u n earnedprem ium d u e the su b scrib er” The e nd o rseme n t atta ched to thepo l icy pro vid e s fo r ca nce llatio n where the su b scrib er fails tomake to the in su rer the requ ired sta teme n t in regard to the

compe n satio n u po n which the qu arterly premiu m is b ased , o r

to pay the qu arterly premium . In su ch case s it is pro vid edthat the in su rer m ay cance l the po l icy u po n te n d ays ’ n o ticeto the in su red .

If the cance llatio n here w a s u nd er agre emen t H it wasval id , b u t if made fo r e ither o f the reaso n s set fo rth in the en

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d o rsem en t it was invalid , inasmu ch as te n days ’ no tice w as

no t given . No waiver o f the requ ireme nts is shown .

I ru le , there fo re , that the in su rer no t having shown u nder

which can ce llatio n pro visio n can ce llatio n was attempted , it hasno t shown a valid cance llatio n ; there fo re the po licy w a s in

e ffect o n the date o f the emplo ye e ’s in ju ry , and he is entitledto compe nsatio n from the in su re r .

The evide nce shows that the emplo ye e was to tally in capa cita ted fo r wo rk from Au g . 29, 1919 , to Feb . 22, 1920, in clu sive

(the employee gave up his cru tche s six o r seven weeks ago ,

b e fo re this fina l hearing o n April a perio d o f twen ty-fo u rweeks b eyo nd the waiting perio d . At the rate o f $16 a week,tw o -third s o f his average we ekly wage o f $24, employe e isen titled to the payment o f $384 from the in su rer .

The qu e stio n o f partia l incapacity is le ft o pe n to the em

plo yee u nd e r the pro visio n s o f Pa rt III, se ctio n 12, o f the act .

FRANK J . DONAHUE .

FINDINGS AND DE CISION OF THE INDUSTRIAL ACCIDE NT BOARDON RE VIEW .

The in su re r having filed a Cla im fo r review , the Indu strialAccid e n t Bo ard he ard the partie s at Bo sto n , Mass . , o n Thu rsd ay , Ju ly 1 , 1920.

Pre sen t : Me ssrs . Ke nnard (chairma n), Parks, Do nahu e ,Gle aso n a nd Co gswe ll .Appe arance s : Me ssrs . Cand e 8c Myers (Fred erick H . Myers ,

E sq . , o f co u n se l) fo r employe e ; Dan ie l G . Campio n ,E sq . ,

fo r

in su rer .

Qu e stio n : The in su rer co ntend s tha t cance llatio n o f the

su bscribe r’s po licy had b e e n e ffected b e fo re the o ccu rrence o f

the in ju ry .

The repo rt o f the Bo ard memb e r co ntain s all the materialevidence .

In su rer’s mo tio n that the case b e re committed to the Bo ardmemb er fo r the hearing o f fu rther evide nce a nd fo r fu rthe rfind ings o f fact is d e n ied .

The Ind u strial Accid e n t Bo ard , o n review, affirm a nd ado ptthe find ings and ru lings o f the Bo ard memb er . The attempted

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can ce llatio n o f in su ran ce u nd er the act no t having b ee n va lid ,a nd the po licy b e ing in e ffect at the time o f the emplo yee ’sin ju ry, compe n satio n is d u e him a s fo u nd in the su m o f $384

to Feb . 22, 1920, inclu sive , the qu e stio n o f partial incapa cityafter Feb ru ary 22 be ing le ft o pe n , su b je ct to the pro visio n s o fthe act .

WILLIAM W . KE NNARD .

FRANK J . DONAHUE .

JOHN H . COGSWE LL .

CHE STE R E . GLE ASON .

DE CRE E OF THE SUPREME JUDICIAL COURT .

BRALE Y, J . The wo rd “ su b scrib e r a s u sed in St . 191 1 , c .

751 , a nd acts in ame ndmen ts there o f , is pra ctica lly the equ iva

le n t to employer who.

ha s accepted the pro visio n s o f the actb y in su ring the compen satio n o f his emplo ye e s . ” We a ssumeo n the re co rd that Warre n H . Davis , the emplo yer w a s a su b

scrib e r at the d a te o f the emplo ymen t o f Altin ovitch . B u t

eve n if at tha t time the re was a va l id o u tstand ing po licy, thein su rer co n tend s that it had b ee n ca nce led b e fo re the inju ryw a s re ce ived . The accid e n t o ccu rred a t 3 o

’clo ck in the aftern o o n o f Au g . 30, 1919 , and the n o tice o f cance lla tio n , d atedAu gu st 25, w a s rece ived by the su b scrib er Au g . 26, 1919 . The

po rtio n s o f the po licy material to the issu e read a s fo llows :This po licy shall b e cance lled at a ny time by e ither o f the

partie s here to u po n writte n n o tice to the o ther party statingwhen there after cance llatio n shall b e e ffe ctive . No tice o f c a n

c e lla tio n sent by registered mail to the addre ss o f the assu redsta ted in the warra ntie s here o f shall b e a su fficie nt n o tice , a ndthe che ck o f the c ompany sim ilarly mailed , a su ffi cie nt te nder,o f any u nearned premium . If ca nce lled by the assu red o n a ny

o ther d ate tha n a n a n n iversary o f the d ate o f issu e o f the

po licy, u nless the assured ha s retired from bu sine ss , the c om

pany shall re ce ive o r re tain the sho rt ra te premium in acco rdance with the tab le printed here o n which sha ll no t b e le ss tha nthe m in imu m prem ium stated in the Warra ntie s he re o f . If

cance lled by the company a t any time , o r by the assu red o n

any ann iversary o f the date o f issu e o f the po licy , the c om

pany shall b e e ntitled to the e arned premium pro rata whe n

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the "E tna will no t be liab le fo r a ny a cciden ts occu rring su b se

qu en t to that time .

” It is co nte nded by the employe e thatbe cau se the po licy co u ld be termin ated in e ither way the bu rdeno f pro o f was o n the insu rer to Show that the n o tice was sentu nder the cance llatio n clau se and n o t u nde r the

“end o rseme nt ,

”

a nd be ing equ ivocal the insu re r’s in ten tio n w as a qu e stio n of

fact, and the notice being insu fficient u nd er the end o rsement ,the find ing a nd ru l ing of the Board memb er affirmed by the

Indu strial Accide n t Board o n review, that the policy remainedin fu ll fo rce , was wa rran ted , and therefo re cann o t be reversed .

The Bo ard o n review he ld that the attempted cance llatio n o f

in su ran ce no t having bee n valid , a nd the policy be ing ine ffect a t the time of the emplo ye e ’s inju ry, compe n satio nsho u ld b e award ed . The e sse ntial facts n o t be ing in d ispu te ,the qu e stion pre sen ted by the re co rd is o ne of law . The righto f ca nce llatio n co u ld b e exercised o n ly as pre scrib ed by the

policy . Lipman v. Niagara Fire Ins . CO . , 121 N . Y . 454 . Acompariso n o f the n o tice with the wo rd ing o f the ab so lu teright to terminate ,

“This po licy shall b e cance lled a t a ny timeby e ither of the partie s here to u po n writte n n o tice to the otherparty stating whe n thereafter cance llatio n shall b e e ffective ,

”

with the langu age o f the e ndorseme n t that if the assu red failsto pay earned premiu m as stipu lated the company u po n su chnegle ct o r de fau lt shall be e n titled at its o ptio n to cance l thepo licy u po n te n days ’ no tice , Shows plain ly that the insu rerd id no t act u nd er the e nd o rseme n t . The mu tu al right o f c anc e lla tio n , eve n if the right is arb itrarily exercised , is co n ferred ,while u nder the e nd o rseme nt the insu rer alo ne c a n d isco n tin u ethe po l icy o n te n d ays ’ n o tice fo r e ither o f the reaso ns stated .

Fergu so n a . Un io n Mu tu al Life In s . CO . , 187 Mass . 8, 10. Itis eno u gh that the no tice is valid u nd er o ne o f the pro visio nso f can ce llatio n which is no t repu gnan t to the other te rms ofthe po licy . In ternatio n al Fire In su ran ce Company Frankl inFire In su ran ce CO . , 66 N . Y . 1 19 . The employe e no t b e ing a

part to the po licy, his asse n t w as no t n e ce ssary, a ltho u gh ifinfo rmed b e fo re the a cciden t o f what had taken place he co u ldhave re fu sed to remain in Davis ’s employmen t u nle ss he re

in su red a nd co n tin u ed to b e a su b scrib e r. Ke oha ne’

s Case ,232 Ma ss . 487 . The qu e stio n whe ther the employee ha s any

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remedy u nd er Part IV, section 21 , o f the a c t as amended fo rfailu re o f the employer to give him no tice in w riting o r prin t“ that he ha s pro vid ed fo r paymen t to in ju red emplo yee s o f theasso ciatio n ,

” is no t b e fo re u s . See Yo u ng Du ncan , 218

Mass . 346 . It fo llows that the d ecre e mu st b e reversed and

the claim d ismissed .

Ordered ac c o rdingly .

Filed Ja n . 7, 1921 .

CASE No . 97 10. (237 Mass .

Mrs . MARGARE T O ’DONNELL, WIDOW AND DE PE NDE NT OF

JOHN J . O ’DONNE LL, E mployee .

C . H . CRONIN , E mployer.

STANDARD ACCIDE NT INSURANCE COMPANY, Ins u rer.

ARISING OUT OF THE E MPLOYME NT .

Whe re the re w as eviden ce tha t du rin g the pe rio d o f de ced e n t ’s em ploym en t by thesubscribe r he ha ndled le ad pipe , a n d his handkerchie fs an d n apkin s were co lo redred from red le ad , an d there is te stim o ny by an expert tha t the cause o f de a thw as scle ro sis o f the co ro n a ry a rte rie s , caused by le ad po iso n ing , a fin din g tha tthe em ployee ’

8 de a th w as d u e to a perso n a l in j u ry arisin g o u t o f an d in the

co urse o f hi s em ploym e n t Is n o t unwarran ted . Jo hn so n ’

8 Case , 21 7 Mas s . 388 ;

D o herty ’s Case , 222 Mass . 98, 100 ; Wa lke r 0. Gage , 223 Mass . 1 79 , 182 .

OCCUPATIONAL D ISE ASE .

The em ploye e ’s de a th from scle ro s is o f the co ro n ary arterie s , caused by lead po iso nin g , he ld to b e a perso n a l in jury un der the a c t .

FIND INGS OF BOARD .

As in the an a lo gous case o f the ve rdict o f a jury o r the findin g o f a judge in an a ctio na t law , the fin din g o f the Bo a rd is co n clusive if it has substan tia l suppo rt in theeviden ce . Uz z io

’

s Case , 228 Mass . 33 1 .

RE PORT OF MEMBE R OF INDUSTRIAL ACCIDE NT BOARD .

The memb er o f the Ind u stria l Accid e n t Bo ard appo in tedu nd er the pro vision s o f Part III , sectio n s 5 a nd 7, chapter 751 ,Acts o f 19 1 1 , and ame ndme n ts there to , having he ard the

partie s in the ab o ve -n amed ca se a t Bo sto n , Mass . , o n Frid ay,May 14, 1920, a t 1 1 A .M. , repo rts as fo llows .

Appeara nce s : J . C . Re iche fo r in su re r ; P . L . Ke enan fo r

cla iman t .In a cla im fo r compe nsatio n filed o n Ju ly 22, 19 18, the

claiman t gave the time o f the emplo ye e ’s inju ry a s a bou t 1

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o’clo ck o n Ju ne 26 , 1918; the place a s U . S . Train ing Ship

the cau se as a fall o r co llapse su perind u ced byle ad po iso n ing

"

arising o u t o f his employme n t ;”

and the n a

tu re o f the in ju ry as d eath .

Und er date o f Ju n e 27 , 1918, the emplo yer repo rted tha tthe emplo ye e was “ take n sick ab o u t 1 o

’clo ck and d ied in sid eo f twe nty minu te s . Appare n tly ca u se was a cu te ind ige stio n o r

he art fa ilu re .

”The emplo ye e ’ s average we ekly wage s we re

give n as $33 ; his o ccu patio n as plumb er and the d a te o f

his d eath a s Ju n e 26, 1918.

Qu e stio n : Whe the r this employ e e’s d e ath was cau sed by

lead po iso ning su ffered in his emplo yme n t by the su b scrib e r .

Report of the E viden c e .

Mrs . Ma rga re t O’

D o nn e ll , the claiman t , te stified that she

l ive s with her three childre n , a girl a ged seve n te e n , a girl aged13 a nd a b oy aged 9 , at 58 Bra cke nb u ry Stree t , Mald e n . She

w a s l iving with her hu sb a nd , the emplo ye e in this ca se , at thetime he d ied , a nd he r thre e children were living with her .

Her hu sb and had wo rked fo r Mr . Cro ni n fo r five mo n thsbe fo re his d eath, a s a plumb er . He had wo rked as a plumb e rever since he was twe lve years o ld , a nd w a s thirty-n in e whe n hed ied . Fo r the pa st five years he had complain ed a nd w a s

Sick qu ite a l ittle . He had to n sillitis and te rrib le pa in s in hisstomach, some time s la sting a d ay a nd some time s tw o o r thre ed ays ; w a s qu ite co n stipated ; was Sick to his stomach, vomited ,e spe cia lly whe n he had the se pain s , b u t o ther time s to o ; hadhe ad a che s , a tta cks o f d izzine ss , and complain ed o f b e ingu nab le to ho ld anything , and o f pain s in the lowe r pa rt o f

his arms . Du ring this time he w a s b e ing tre ated by D r .

Plummer . Handkerchie fs and napkins which he wo u ld bringhome with him from wo rk wo u ld b e co lo red red , which hesaid came from pa intin g le ad pipe with red lead . He wo u ldo fte n complain o f b e ing tired from wo rking o n the pipe a ll d ay ,

mo st o f the time lead pipe , and his ha nd s wo u ld b e very d irtya nd stained red .

Cro ss-examin atio n : Her hu sb and had a fa ll fo u rtee n ye arsago a nd was in the Carney Ho spita l a t the time . He n eve rsu ffered from appe nd icitis that she knew of . He w as o perated

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148

with myo card itis. A co u ple o f years b e fo re the emplo ye e d iedthe d o cto r se nt him into the clin ic a t the Massachu se ttsGe n eral Ho spital , b u t n e ither he n o r the emplo ye e go t a ny

defin ite info rma tio n there . If the ca u se o f the d e ath is ascrib edto sclero sis , witne ss sho u ld say that it is d u e to the actio n o f

the lead o n the he art . The heart co nd itio n as d e scrib ed in the

de a th certifica te co u ld b e re spo n sib le fo r the d izzine ss , a nd

po ssib ly fo r the weakne ss and nervo u sn e ss . Emplo ye e was a

very yo u ng m a n , however , to ge t scle ro sis . Asked if he prescrib ed anything specific fo r le ad po iso n ing, D r . Plummer re

plied tha t he pre scrib ed salts a nd io d id e o f po tash . Emplo yeese emed to impro ve u nd er this trea tmen t . Io d ide o f po ta sh alsowo u ld b e given fo r scle ro sis .The claimant o ffered in evid en ce the fo llowing certificate o f

d eath :THE COMMONWE ALTH OF MASSACHUSE TTS .

MED ICAL E XAMINER FOR SUFFOLK COUNTY ,

OFFICE OF THE NORTHERN D IVISION ,

274 BOYLSTON STREET , BOSTON .

To the Indu stria l A c c iden t B oa rd .

I hereby c ertify that o n the tw enty-sixth and tw en ty-seventh days o fJu n e in the year 1918, in a c c o rd an c e w ith the provisio ns o f law ,

I exam in edthe b ody and m ad e perso n a l inqu iry in to the c au se and m ann er o f the

d ea th o f John J. O’D onn ell , aged thirty-nin e years , la te o f 35 Starb ird

Street, Ma ld en , Mass .,who died at U. S. Tra in ing Ship “Mead e

”in

do ck, 172 Bo rd er Street, East Bo sto n ,Mass .

, o n the tw enty-sixth d ay o f

Ju n e in the year 1918.

I fu rther de c lare it to b e m y opinion tha t the sa id d e c ed ent died fromn atu ra l c au ses : heart disea se , sc lero sis o f the c o ro na ry arteries w ith

sten o sis o f the left, and asso c ia ted chro ni c in terstitia l myo c arditis (su dd end eath).

Wi tn ess m y hand and Sea l this thirteenth d ay o f Feb ru ary i n theyear 1919 .

GEORGE BURGESS MAGRATH,M .D .

,

Medic a l E xam iner for Sufio lk Cou n ty .

D r . Cad is Phipps , called by the claiman t , te stified that heha s examined the d eath certificate o f Mr . O

’

D o n ne ll, the Massac hu se tts General Ho spita l repo rt, and also ha s ta lked with Mrs .

O’

D o n n e ll . Assu ming that Mr. O’

D o n ne ll d ied in 1918 whe nthirty-n ine years o f age , and the cau se s o f his d eath were give nas “

n atu ra l cau se s : he art d ise ase , sclero sis o f co ro n ary arterie s

49

with ste no sis o f the le ft , a nd a sso cia ted chro nic interstitia lmyo card itis ,

” tha t in itse lf su gge sts tha t it w a s very u n u su a l ,almo st u nhe ard o f, a s it is very rare fo r a m a n a s yo u ng a s

thirty-n ine o r fo rty to have so adva nced a n arterio sclero sis a sto cau se d e a th ; very rare u nd e r fo rty-five o r fif ty to d ie o f

sclero sis o f the co ro nary arterie s . In su ch u n u su a l ca se s w ewo u ld a lways lo o k fo r a spe cific ca u se ; tha t is , in e lderlype ople o r in people in midd le age w e a ccept sclero sis o f the

arterie s a s part o f the pro ce ss o f age , a ltho u gh w e re a liz e tha tprevio u s d ise ase ha s played a part in it and cau sed it, b u t b elow fifty o r fo rty-five ye ars w e lo o k fo r a spe cific ca u se fo r it .The tw o ca u se s which wo u ld b e tho u ght o f first a nd fo remo stare syphilis a nd lead po iso ning . Having in mind that Mr .

O’

D o nne ll had three childre n , all a live a nd we ll , a nd that inJa n u ary, 1916, the Ma ssachu se tts Ge neral Ho spital repo rtedWa sserma n n te st negative ,

” witne ss wo u ld say tha t Mr . O’

D on

n e ll d id n o t have syphil is . The fact tha t this m a n had b een

a plu mb e r fo r ab o u t twe n ty-five yea rs ; tha t fo r some timeprio r to his death he had abdomin a l cramps , with co n stipatio nand vomiting ; that he had the co n stipatio n e specia lly a t the

period s whe n he had the cramps , which some time s la sted fromo ne to thre e d ays ; that he had we akne ss o f the extremitie s ,e specially with regard to the wrist ; some pa in in the wrist,with o cca sio n a l he adache s , taken in co n ju n ctio n with his deatha t thirty-n in e a nd the cau se s o f his de a th, su gge sts to witne sslead po iso n ing as a cau se fo r this u nu su al e arly sclero sis . The

fact that emplo ye e had a n ab d ominal opera tio n fo u rte e n ye a rsago wo u ld b e a po ssib le explan a tio n , o r part expla n a tio n , fo r

the ab d omin a l pa in . The o ther symptoms Su gge st le a d po iso ning mo st stro ngly . The cau se o f d eath was sclero sis o f theco ro nary arterie s , and it w a s u ndo u b ted ly cau sed by leadpo iso n ing . If a m a n is asso cia ted with lead o ver a pe rio d o f

years , and ge ts le ad po iso n ing, the pro b ab le cau se is the a s

sim ila tio n o f le ad into his system , a nd as a gen era l ru le tha t ispro gre ssive ; co n sta n t a sso ciatio n mea n s co n stan t a ssimilatio n .

If a m an has le ad po iso n ing witne ss thinks it is fair to say he

ha s b ee n assimilating it du ring the time he ha s b ee n a sso cia tingwith it . Lead m ay b e b ro u ght in to the system from o therso u rce s than a perso n ’s o ccu patio n . Assu ming the m a n ha s

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been a plu mber fo r twe n ty-five years , an d a co ntribu ting cau seo f his death is lead po iso n ing, witness wo u ld say tha t thepro b ab ilitie s are tha t he assimilated that le ad in the co u rse o f

his o ccu pa tio n .

Cro ss-e xamined , witne ss stated that he has n o t see n the

children and cann o t te stify as to the ir go o d he alth . Witn e sswo u ld expect some o bje ctive signs o f lead po iso n ing; Hewo u ld expe ct change s in the blo o d which a re typica l o f lea dpo iso n ing , if he d id o r did no t have the lead line o n his gu ms ;witne ss wo u ld a lso expect tha t if a chemical ana lysis ha d bee nma de o f his u rine , tha t le ad wo u ld have b e e n fo u nd ; tha t ifhis fe ce s had b e en examined , probably mo st o f the time le adwo u ld have be e n re co vered in them ; he wo u ld no t have ex

pe c ted definite toe dro p o r wrist drop . One c a n have le adpo iso n ing witho u t them . One ca nno t have le ad po iso n ingwitho u t symptoms o f a ny kind . The o pera tio n which em

plo yee had fo u rtee n years ago wo u ld b e some gro u nd for c om

plain t , his abdomin a l pain , he ha d thro u gh the years fo llowing ,a n d it might po ssib ly explain his ab d ominal pain . There are

po ssib le cau ses fo r sclero sis be side s the tw o mentio ned by thed o cto r, there is pro fo u nd to xemia , that is what o n e ge ts in le adpo iso n ing, a nd in po iso n ing from germs ; tha t is , pro fo u nd severe in fectio n s wo u ld play a part , o r in fectio n s co n tinu ed o vera lo ng period o f time . E ven tho u gh this m an had a phlebitisfo u rtee n ye ars ago , it wo u ld have no b e aring o n it , a nd expo su rea t his age wo u ld have practically no n e . Alcoho l wo u ld have atwo fo ld b earing ; it tend s to harden the a rterie s , and re nders am a n su sceptib le to le ad po iso n ing . On this particu lar casewitne ss is b u ilding u po n the death certificate a nd histo ry ; hen ever saw the m an . Arsen ic might have a n ind ire ct e ffe ct u po nthe arte rie s ; it wo u ld b e pre tty far-fe tched ; it wo u ld comethro u gh the kidn eys primarily ; ju st how mu ch e ffe ct it wo u ldhave o n the arte rie s , witne ss is n o t in a po sitio n to say . Witn e ss ha s te stified that in his o pin io n the primary cau se o f thisma n ’

s d eath was lead po iso n ing . Asked if he c an say when a nd

where it en tered , witne ss stated that he imagined it was aco n tin u o u s pro ceed ing, the e ntran ce o f lead ; he go t the histo rythat emplo yee had always b e e n a plu mb er sin ce he started towo rk . He wo u ld say practically du ring emplo ye e ’s en tire o c

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152

b rom id e . This pa in equ als a so reness and is constan t . Exertio n b rings

o n a severe pa in startin g in the same regio n ,m oving up to ne ck, left side

o f jaw and down bo th a rm s ; w o rse in left . No numb ness . When pa inc om es , he has to stop and then pa in go es away in o ne to two m inu te s .

Hea rt, n egative . Blo od pres su re , Ac tio n regu la r. Du lnessno t in c reased . So u nd s o f go od qu a lity. No m asses in any po sitio n .

Apex b est felt in fo u rth in terspa c e in left latera l po sition .

R No . 58 3i, three tim es a day after m ea ls . Stop b rom id e and retu rn

in o ne w eek .

March 13,1920. Patient has no t repo rted sin ce the ab ove da te .

Member’

s D ecision .

Upo n the evidence in this case I fin d that the cau se o f em

plo yee’

s death o n Ju ne 26, 19 18, w a s sclero sis o f the co ro n arya rterie s , a nd this sclero sis was ca u sed by the accu mu lative e f

fe e ts o f the lead which w a s be ing co n sta ntly assimilated intohis system up to the time tha t the final a ssimilatio n cau sed hisdeath .

I find that this a ssimilatio n o f lead o ccu rred d u ring his employme n t a s a pain ter, re su lting from the u se o f lea d in hisemplo yment , an d tha t the fina l assimilatio n which cau sed hisde a th o ccu rred du ring his emplo ymen t with the su b scrib er inthis ca se .

I find that the cla iman t widow w a s living with her hu sbandat the time o f his d e a th, and is the re fo re co nclu sive ly pre su medto have be en who lly d epe nden t u po n him fo r su ppo rt .Under the se find ings the cla ima n t is en titled to the pre sen t

pa yme nt o f $100 fo r fu nera l expen se s o f the emplo ye e , a nd

the payme n t o f $10 a we ek compen satio n fo r a pe rio d o f threehu ndred an d n in e ty weeks from Ju ne 26 , 1918.

FRANK J . DONAHUE .

FIND INGS AND DE CISION OF INDUSTRIAL ACCIDE NT BOARDON RE VIEW .

The insu rer having filed a cla im fo r review, the Indu strialAccid en t Bo ard heard the pa rtie s at Bo sto n , Ma ss . , o n Thu rsd ay , Ju ly 1 , 1920, at AM .

Pre sen t : Me ssrs . Ke nnard (chairma n), Parks, Do nahu e ,Gleaso n a nd Co gswe ll .

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Appe ara nce s : J . C . Re iche , E sq . , fo r the in su rer ; Pau l L .

Keenan , E sq .,fo r the claiman t .

Qu e stio n : Whe the r the emplo ye e’s de a th was cau sed by

lead po iso n ing su ffered in his employme n t b y the su b scrib er .

The repo rt o f the Bo ard member co nta ins all the materia leviden ce .

In su rer ’ s mo tio n that the ca se b e re ferred b ack to the

Bo ard memb er fo r fu rther hearing is d e n ied .

The Ind u strial Accid e nt Bo ard , o n review , affirm a nd ad o ptthe find ings and d e cision o f the Bo ard memb er . Under thisdecisio n there is d u e the depende n t wid ow a pre sen t paymen to f $100 fo r fu nera l expe n se s , a nd the payme nt o f a we eklycompen sa tio n o f $10 fo r a perio d o f thre e hu ndred and n ine tyweeks from Ju ne 26, 1918, su b je ct to the provisio n s Of the act .E mploye e ’s mo tio n that co sts b e asse ssed o n the in su rer is

d en ied .

WILLIAM W . KE NNARD .

FRANK J . DONAHUE .

JOHN H . COGSWE LL .

CHE STE R E . GLE ASON .

DE CRE E OF SUPRE ME JUD ICIAL COURT .

DE COURCY, J . The issu e as framed b e fo re the singlememb er o f the Ind u strial Accid en t Bo ard , a nd b e fo re the

Bo ard o n review, is“whe ther the emplo yee ’s de ath w a s cau sed

b y lead po iso n ing su ffered in his employmen t b y the su b

scrib er . The decisio n o f the single memb er, a ffirmed an d

adopted by the Bo ard , is as fo llows :“Upo n the evid e nce in

this case I find tha t the cau se o f employe e ’s d eath o n Ju ne 26 ,1918, w a s sclero sis o f the co ro nary arterie s , a nd this sclero siswas cau sed b y the accu mu lative e ffe cts o f the lead which w a s

b e ing co n sta n tly assimilated into his system up to the timetha t the fin a l assimila tio n cau sed his d eath . I find that thisassimilatio n o f le ad o ccu rred d u ring his employme n t as apainter "plumb er], re su l ting from the u se o f lead in his emplo ymen t, and that the fin a l assimila tio n which cau sed his d eatho ccu rred d u ring his employmen t with the su b scrib er in thiscase .

”

As in the analo go u s case o f the verdict o f a ju ry o r the

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finding o f a ju dge in a n actio n at law, this find ing is co nclu siveif it ha s a su b stan tia l su ppo rt in the evidence . Uz z io

’

s Case ,228 Mass . 331 . We are o f o pin io n that there was evid e nce towarran t it . The family physicia n te stified that fo r the la st fewyears he ha s tre a ted Mr . O

’

D o n ne ll“fo r what he su ppo sed w as

lead po iso n ing .

”The expert , after reviewing the histo ry and

symptoms , gave a s his opin io n that “the cau se o f death w a s

sclero sis o f the co ro nary arterie s , and it was u nd o u bted lycau sed by lead po iso n ing . There was evide nce that d u ringthe five mo nths o f his emplo yme n t with C . H . Cro nin , the

assu red , he w a s hand ling le ad pipe , a nd his ha ndkerchie fs a ndn apkin s wo u ld b e co lo red red from red lead . On the te stimo nyo f the spe cia list it co u ld be fo u nd tha t the le ad po iso n ing,which w as a co n trib u ting cau se o f the emplo ye e ’s d eath , w as

pro gre ssive , and pro bab ly du e to the co ns tan t assimilatio n o f

the lead du ring the ye ars he had b e en expo sed to it . Witho u tfu rther re fere n ce to the evid ence in de ta il , it is appare n t tha tw e can no t say the find ing o f the Bo ard w a s u nwarra nted .

John so n ’s Ca se , 217 Mass . 388; Doherty’s Case , 222 Ma ss . 98,

100; Walker Gage , 223 Ma ss . 179 , 182.

D ec ree afirm ed .

Filed Jan . 7 , 1921 .

CASE No . 9 100. (237 Ma ss .

JAME S WALKDE N,E mployee .

PASSAIC COTTON MILLS , E mployer.

AME RICAN MUTUAL LIABILITY INSURANCE COMPANY, Insu rer .

NOTICE OF INJURY .

When a n em ploye e has fa iled to give n o tice o f his in jury in writin g as so o n as prs ctic a b le a fte r such in jury o ccurs , he m us t Show tha t the in sure r, em ployer o r

agen t ha d kn owledge o f the in jury .

KNOWLE D GE OF INJURY .

It is se ttled by Brown ’

s Ca se , 228 Mas s . 37 , a n d Murphy ’

s C ase , 226 Ma ss . 60,

tha t be cause kn owledge is a substitute fo r the written n o tice , the em ploye rm ust have kn owledge within the tim e when the written n o tice sho uld havebe en given . The wo rd kn owledge ” is used in the sta tute in its o rdin arysen se a s m e an in g a ctua l kn owledge , but n o t abso lute certa in ty ; a n d whilen o tice o f wha t has happen ed is n o t a ctua l kn owledge tha t the em ployee hasbe en in ju red , it is such in fo rm a tio n a s m en usua lly a c t upo n in o rdin ary hum a n afia irs . If n o tice ha d been given to the o verse er there wo uld b e eviden ce

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the side ; he fe lt the pain a s so o n as he twisted to save himse lffrom go ing o n the flo o r . He did n o t fall to the flo o r, b u tca u ght his arm o n e ach lo om ; he had o n e ha nd o n e ach lo om .

He fe ll fo rward with a twist, a nd in trying to save himse lfca u sed the pain . He fe lt the pain as so o n as he was pitchedfo rward . He wo rked that d ay and the next , b u t he was invery gre a t pa in . He had the pain o n his right sid e d owntoward s the gro in . He walked o u t o n Thu rsday. Ju ly 1 waso n a Tu e sd ay . On Thu rsday he wen t to Mr . Tu rner, se co ndha nd , and to ld him he co u ld no t go to wo rk a s he was to o sick.

Witne ss asked him if he wo u ld repo rt to the overse e er, a nd he

sa id he wo u ld ; he wo u ld make it all right . He to ld the se co ndha nd tha t be ing hit with a shu ttle had hu rt his right side , a ndtha t he twisted his sid e ; he co u ld n o t wo rk a ny mo re . He

to ld him to repo rt it to the o verse er . Mr . Tu rner is the b o ssfo reman , a nd take s his d irectio n s from the o ve rsee r . He gavewitn e ss d irectio n s from the o verseer du ring the day . He wasin b ed Thu rsd ay, a nd the d o cto r was ca lled that n ight . Heo rd ered him to go to a ho spita l d irectly . He we n t to St . Lu ke ’sHo spita l in New Bed fo rd . He was o pera ted o n fo r a hern ia .

It is a pa rt o f his cla im tha t he ha d a hernia . He ha s n o t bee nto wo rk, a s he ha s b ee n sick a ll the time . He is still ru ptu red ,a nd is tro u b led with we akn e ss . His ru ptu re is o n the rightside . He ha s a lu mp there n ow . The lu mp ha s be e n there allthe time . The lu mp began to grow a fter he had b e e n stru ckwith the Shu ttle . He n o ticed a swe lling o n Wedn e sd ay night .He go t stru ck o n Tu e sd ay . The pain came as so o n as he wasstru ck with the shu ttle a nd co n tin u ed . He was in pain in hisright sid e u n til he wen t to the ho spita l .On cro ss-e xamin a tio n : His sid e ha s b e en so re ; he was

o perated o n tw o ye ars ago . On Sept . 14 , 1917 , he was o pera tedo n fo r a hern ia in his right sid e , as a re su lt o f the a ccid e nt atthe Dartmo u th Mills . He re ce ived compe n sa tio n from the

Lib erty Mu tu a l In su ran ce Company fo r ab o u t seve ntee n we eks .He we n t b a ck to wo rk a t the Dartmou th Mills, b u t he co u ldno t te ll the da te . His a ccid en t was Sept . 4, 1917 , a nd he

re tu rned to wo rk ab o u t n ine te e n we eks later . He wo rked ab o u tthree we eks a nd had to come o u t a gain b e cau se he was sick .

57

He co u ld n o t keep u p o n acco u n t o f pain in his side . He wen tb ack to the mill a nd to ld them he co u ld no t get alo ng . Theypaid him fo r the week o r tw o he w a s a t home . He saw D r .

Frederick Ro b in so n o f New Bedfo rd . He lo afed ab o u t thre eo r fo u r we eks . He saw D r . Ro b in so n du ring the time he lo afed .

He gave him some tablets to take , a nd sa id he need ed a go odre st ; tha t he was we ak. He d id no t give him anything e lsebeside s the tab le ts . He had a very so re pla ce . in his sid e . The

lu mp came right away as so o n as he w a s hu rt in the mills . Hewas hu rt o n Septemb er 4 . He we n t to Bo sto n and was o pera tedo n Septemb er 14 b y D r . Bro o ks a t the Co rey Ho spital . He

w a s at the ho spital tw o we eks a nd tw o days . When he le ftthe ho spital he w a s so re a nd b an daged u p. The b a nd age w a s

taken o ff six o r seye n weeks a fter he came o u t o f the ho spita l .He had a lu mp whe n the ba nd a ge w a s taken o ff ; it was so rea nd there w a s a ridge . The lu mp w a s as large a s his finger .

The lu mp he had last Ju ly was mu ch la rger than what he hadb e fo re ; it was the same kind o f a lump b u t o n ly larger . Afterhe le ft the ho spita l the b a nd age was take n o ff in six weeks ;he had a lump o n his sid e ; he then lo a fed fo r the b ala nce o f

n ineteen weeks , an d the n wen t to the Dartmo u th Mills a nd

wo rked as a weaver there fo r thre e weeks . He gave up an d

came ou t fo r thre e o r fo u r we eks . He wo re a co tto n b and agefo r a few mo n ths at the requ e st o f D r . Ro b in so n . After helo a fed thre e o r fo u r we eks he we n t ba ck to the Dartmo u thMills a nd wo rked five o r six we eks , and the n came o u t . He

w a s Sick with the same tro u b le ; he had a pa in in his rightgro in . The lu mp was there at tha t time . There w a s a ridgepre sen t whe n he came o u t o f the Dartmo u th Mills after wo rking tw o o r three weeks the seco nd time . It was still so re wherethe stitche s were . He w a s o u t from the Dartmo u th Millsa b o u t five weeks , and D r .

'

Ro b in so n gave him some tab le ts .He was we arin g a b a nd age , which he changed himse lf . He

wen t back to the Dartmo u th Mills a fter he was o u t five weeksan d wo rked ab o u t six we eks . He sto pped wo rking b ecau se thejo bs had ru n o u t in the mills a nd that part o f the mill shu td own . He wo rked fo r the Dartmo u th Mills clo se o n to n in eo r te n ye a rs . He mad e b allo o n clo th du ring the w ar and wo ve

58

pla in vo ile s b e fo re the w a r . He we n t to the Pa ssaic Mill inApril , 1919 , a nd wo rked a b o u t six weeks . His back was tu rn edto the d irectio n from which the shu ttle cam e o n Ju ly 1 . Hew a s sta nd ing le a n ing with his right arm and e lb ow o n the fillingb o xe s o n his lo om whe n su dd enly he was stru ck in the sho u ld era cro ss the b lad e s b y something which

.

fe ll to the gro u n d . He

lo o ked a t it a nd saw it w a s a shu ttle . After it stru ck him he

re ached d own o n the flo o r , picked it up, a nd to o k it b ack toMan u e l Pe d ero z , who ru n s the n ext lo om . He wa lked b ack toPe d ero z a nd said the shu ttle ha d stru ck him b e twe e n the sho u lde rs , a nd he was go ing to have the lo om fixed . He co ntinu edto wo rk right a lo ng . He w a s no t kno cked u n co n scio u s . Thishappe ned ab o u t in the mo rn ing . He wo rked u n til 5o’clo ck . He we n t to Mr . Tanner ’s ho u se the n ext mo rn ing,Ju ly 3 . He to ld him he was sick the n ight b e fo re he go t thepa in in his b a ck, a nd to te ll o verse er Bard sley he w a s n o t comingin . He to ld him his tro u b le was d u e to the shu ttle ; tha t hew a s pra ctica lly all right b e fo re . He was pitched o ver ; the

fo rce o f the b low stru ck him in the sho u ld ers a n d threw himfo rward . He d id n o t to pple o n to the gro u nd . He stru ck o n

the sid e o f the lo om a nd b o th ha nd s we n t o n the clo th . Here co ve red his b a lance , go t b ack o n to his fee t, lo o ked d own a n d

saw the Shu ttle , picked it up a nd wa lked b a ck to the lo om wherehe tho u ght it came from a nd fo u nd there w a s a shu ttle missing .

He gave the shu ttle to the b o y , le ft him a nd came b a ck, stayeda t his lo om , a nd whe n it w a s fixe d , co n tinu ed wo rking . He

d id n o t know there was a first-a id ro om in the mill . He ha s

se e n the nu rse go ing thr o u gh the ro om , b u t tho u ght she cameto make a repo rt o n the co nd itio n o f the mill . He kn ows the reis a ho spita l the re n ow , as he w a s to ld so by a friend . He had

b e e n o u t o f the ho spita l a few we eks whe n he we n t to the m illa nd repo rted this tro u b le to Mr . Sa nd ers a nd Mr . Bard sley ;it w a s ab o u t fo u r we eks . Du ring this time he had b e e n in theho u se and no t o u t at all . The first d ay he w a s o u t he wen tto the mill . D r . Gardner o rd ered him to St . Lu ke ’s Ho spital .He called o n him Wedne sd ay n ight first

, a nd the n a ga in in

ab o u t a n ho u r . He sa id he wa n ted to find o u t wha t the lum pw a s . He o rde red the amb u lance to come . He was last treated

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The fo llowing repo rt o f D r . E dwin D . Gardner was re ceivedin evid ence

FE B . 13 , 1920.

Mr . ROB ERT E . GRAND FIELD .

DEAR SIR: Mr. Jam es Walkd en w as a private pa tient o f m in e a t

St . Lu kes Ho spita l . He w as n ot su ffering from appendic itis at the tim e .

He had a strangu lated ingu in a l hernia , and the strangu lated po rtion o f

the in testin e happen ed to b e the appendix and the cwc um up to the ileocwc a l valve . I w as to ld that a t the hearing a represen ta tive o f the Am er

ican Mu tu a l Liab ility Insu ran ce Company sa id tha t the insu ran c e c om

pany requ es ted m e to b e presen t. This is no t tru e .

As to the ca se I saw him on the afte rnoo n o f Ju ly 3, 1919. He stated

that he had an opera tio n fo r right ingu ina l hernia at D r. Bro oks ’ ho spital ,Bo sto n , in Oc tob er, 1917 ; o therwise his past histo ry wa s o f n o impo rtan c e . He stated that o n Ju ly 1 , 1919, while a t work in the Passa ic Mill ,he was hit in the b a ck by a flying shu ttle and w as thrown forw ard . As

he fell he twisted his b o dy and had a su dd en severe pain in the regio n

o f the hernia scar . He then no ticed a lump in this regio n . He ha d neverno ticed a lump b efo re . The pa in peIsisted u ntil I saw him . He ha d no

na u sea o r vom iting . His physica l examinatio n w as negative exceptlo c a lly. His ab dom en was slightly d istend ed . At ab o u t the mid po int o fa 6—in ch hernia sc ar wa s a sm o o th, firm , very tend er m ass a little largerthan a go lf b a ll . This c o u ld no t b e red u c ed . At the low er end o f the

sc ar was a sm a ll red u c ib le hern ia ab o u t the size o f an o live . I sen t himin to the ho spita l a s so o n as po ssib le and opera ted on him fo r strangu la tedhern ia . The larger m ass

,I fo u nd

,w as a hern ia sa c which was ju st u nd er

the skin , having dissec ted its w ay b etw een Po upa rt’s ligam en t and thein tern a l Ob liqu e m u sc le . In the sa c I fo u nd a gangreno u s appendix and

cwc um . I felt tha t it was u nwise to do a res ec tio n , a s it m eant a resec tion

o f the c aseum an d part o f the ilium ,and the patien t S conditio n wa s

non e to o go o d . Therefo re I simply rem oved the appendix and dra ined

the regio n o f the c aec um ju st as if it w ere an appendix ab sc ess . I fu llyexpe c ted a faec a l fis tu la , b u t fo rtu na te ly he did no t have o ne . His co n

va lesc en c e wa s u ninterrupted and very Slow . He w as d ischa rged fromthe ho spita l o n Sept . 1 1 , 1919 . He had a granu latin g wo u nd which

fina lly hea led . Of co u rse he still has his tw o hern ias , a s no a ttempt w asm ad e to c u re these u nd er the c irc um stanc es ; therefo re I consid er thisc a se o ne o f strangu lated , ingu ina l hern ia , it happening that the strang u

la ted in testin e was c aec um and appendix. Whether the herni a:w ere sim

ple re c u rren c es and the a c c id ent c au sed the strangu lation ,o r whether the

a c c id ent ca u sed b o th the re c u rren c es and the strangu la tion , I canno t say ,as I never saw the m an b efo re . All I have is his sta tem ent that he

never saw any m ass u ntil the a c c id en t .

Sin c erely yo u rs ,EDWIN D . GARDNER, M .D .

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D r . E dwin D . Gardner, ca lled by cla iman t , and qu e stio n edby Mr . Dickin so n , te stified a s fo llows at the co n tin u ed hearing :That he live s in New Bed fo rd a nd is a physician . He a tte nd edthis emplo ye e med ically . He rememb ers he came to him a t

o n e time Sho rtly b e fo re he w as in the ho spital where he w a s

tre a ted . He had a right , strangu l a ted , ingu inal he rn ia , a nd hehad a scar in tha t same regio n . The scar pre se n t at tha t timewas where an opera tio n wo u ld b e perfo rm ed fo r a n ingu inalhern ia . He had a mass in the ingu in a l regio n which was te nd er, d isco lo red , a nd fe lt l ike in te stin e . It co u ld no t b e redu cedo r pu shed b a ck in to the abdominal cavity . Employe e to ld himthat he had b e en hit in the b ack by a shu ttle , a n d it hit himwith su ch fo rce tha t he w a s thrown o ff his b a la nce , an d in

fa lling his b o dy w a s twisted in an e ffo rt to save himse lf fromfa lling, a nd at tha t time he had pain in his right , ingu in a lregio n . The twisting su ch as he d e scrib ed wo u ld b e a n a d e

qu ate cau se o f b ringing down the hern ia, if it was in a somewhat weakened co nditio n previo u sly, and a lso if he wa s pred ispo sed to su ch a thing . Po ssib ly tw o o r three ho u rs e lapsedfrom the time he saw employee fo r med ica l o bse rva tio n s thefirst time a nd the time he sen t him to the ho spital . He d id n o t

d iagn o se it as append icitis a t that time . He fo u nd it d iffitto say if the re were symptoms co n sisten t with appe nd icitis atthat time , b eca u se he was pre tty tho ro u ghly co nvinced it w a sa stra ngu l a ted , ingu inal hern ia a nd d id no t co n sid er append ic itis ; the sign s o f a strangu lated, ingu inal hern ia a nd appe nd ic itis are somewha t similar, b u t with a mass visib le in the

ingu in al regio n ,he sho u ld no t b e in clined to think o f appe nd i

c itis . He opera ted o n him . He saw emplo ye e in the aftern o o na nd o pe ra te d o n him tha t even ing . The o peratio n disclo sed a

strangu lated , ingu in a l hern ia , a nd in the sa c was a gangren o u sappe nd icitis a nd c eec u m . The caecum is a pie ce o f large b owe lfrom which the appe nd ix springs . A hern ia is a sac whichcome s thro u gh the ingu in a l ring . All ingu inal hern ias a re n o t

stra ngul a ted . At the ju n ctio n o f the perito ne a l cavity a nd the

hern ia l sa c is a co n strictio n which cu ts o ff the b lo o d su pply o f

the co nte nts o f the sac in a strangulated hern ia . Witne ssu nd erstoo d emplo ye e had this accid en t o n Ju ly 1 , and he cameto him o n Ju ly 3 . It wo u ld b e po ssib le that the strain cau sed

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the gangre no u s append ix ; he tho u ght it impo ssib le to say ho w

long the gangre no u s appendix existed , b e cau se the time variesso . He ha s see n a n append ix gangrenou s in fo u r ho u rs , a nd

he ha s see n them go o n fo r a we ek o r te n d ays . The append ixwas in the hern ial sa c . If emplo yee ha d no pain b e fo re thisinju ry, his o pin io n wou ld b e that the strain was the cau se o f

bringing abo u t the stra ngu lated hern ia , inclu d in g the gangrenou s co nd itio n o f the appe ndix be ing in the sac. If he sawplain signs o f append icitis pain s b e fore the a lleged accident , hewou ld form the opin io n he had appe nd icitis befo re tha t time .

On cro ss-e xaminatio n : He co u ld n o t sta te po sitive ly thatthe co nd ition he fo u nd him in o n Ju ly 3 w a s no t a recu rre n ceo r man ife sta tio n o f the same tro u b le he had b e en having sinceSeptemb er, 1917 . He fo u nd tw o hern ia , o ne was a strangu la tedhern ia abo u t the midd le o f the scar, and the o ther was a small ,redu cib le hern ia a t the lower end o f the scar . He did remo vethe gangrenou s append ix a t the o peration , b u t no t the ca cu m .

He d id n o t o perate o n the hern ia . An o peration fo r a hern iaco n sists o f su tu ring the o pen ing, and it was o f n o u se to su tu rewith any

‘

hope o f healing with the pre sen ce o f pu s , whichexisted . The d egree o f gangrene in the append ix was Very bad .

His appen d ix was gangre no u s a ll the way thro u gh. It w a s n o t

pe rfora ted , a nd no defin ite ho le co u ld be seen to the naked eye .

E mplo yee was in severe pain at the time he saw him ju st b e fo rehe sen t him to the ho spital . He had tw o hern ia . He co u ldn o t te ll from the fie ld o f operatio n whether o ne was o ld o r new .

The re is no w ay o f telling . He to o k a histo ry, and parts o f itmay have been impo rtan t ; he take s a histo ry a s part o f the

rou tine . He ha s n o re cord tha t emplo yee to ld him he neverno ticed a lump in his side be fo re . Emplo ye e d id have pa in atthe time he visited witne ss . Witne ss was interviewed a b o u tthis case o n Oct . 22, 19 19 . Acco rd ing to his re cord emplo ye eha d no pain a t the time he visited him . He go t a defin itehistory from him that he ha d never had a lump be fore . Hed o e s n o t kn ow if emplo yee is ab le to wo rk a s a re su lt o f his

co nditio n . He discharged him o n October 20. He co u ld no t

say wha t the pro gno sis wo u ld b e from October 20, and his

ab ility to work. Employee still ha s his hern ia a m an maywo rk and we ar a tru ss fo r his hern ia . So far a s his hern ia are

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have ha d previo u s attacks o f append icitis from his ow n sta temen t . The pain which he had was d u e to something . He d idn o t see how anyb o dy co u ld te ll ju st what his pain was d u e towitho u t a skilled d o cto r examin ing him a nd find ing o u t , whichhe u nd erstand s was n ever d o n e . After his n in e tee n weeks o u to f the ho spital , emplo ye e was n o t right , a nd something was thematter, o r he wo u ld n o t have le ft his wo rk ; it is n o t the u su althing fo r a m an operated o n fo r a hern ia to have to qu it hiswo rk ; he sho u ld co n tin u e his wo rk after he is healed ; something was wro ng with the m an . Assuming that he ma d e atwisting mo tio n and grab b ed ho ld o f the machin e , and thatsho rtly befo re tha t he was free from pain and was fo r a perio do f mo n ths o r we eks free from pain , and then immed iate ly afterthat accid en t he gets a pain in the abd omen and go e s to D r .

Gardn er fo r re lie f in a co u ple o f d ays , and he was sen t to the

ho spital o n acco u n t o f the strangu latio n , taken alto gether hiso pin io n wo u ld b e that there w a s a cau sa l co nn e ctio n b e twee nthe accid en t o f the twisting in trying to save himse lf and thisstrangu latio n ; it was a d ecided facto r, witho u t any qu e stio n .

Jame s Walkd en , the emplo yee , te stified su b stan tially as fo l

lows : That he rememb ers the time o f the accid en t ; he d id n o t

fe e l any pain the we ek b e fo re his accid en t, a nd wa s a s we lla s he ever was ; he ju st fe lt a slight pain a mo nth o r thre eweeks b e fo re the accid en t .Qu e stio n ed by Mr . Dickin so n : He fe lt pain as so o n as he w a s

thrown fo rward , a nd from that time o n he had pain . He had to

stop wo rk o ccasio n ally from time to time b e cau se o f pain s inhis side b e fo re his accid en t in Ju ly, b u t n o t so very o ften ; ifhe was a l ittle ru n d own he fe lt the pain .

B oa rd Member’

s Find ings and Ru lings .

It is fo u nd o n the we ight o f the ab ove evid en ce a nd the

su b scrib er’s repo rt that the emplo yee , o n Ju ly 1 , 19 19 , rece iveda n in ju ry arising o u t o f and in the co u rse o f his employme n t ,fo r which a claim fo r compen satio n w a s d u ly filed with the

Indu strial Accid en t Bo ard on Nov. 14, 19 19 . His wo rk wasthat o f a we aver, and his average we ekly wage s $25, a s shownby the employer ’s repo rt to the Ind u strial Accid en t Bo ard . Ashu ttle , abo u t inches lo ng, 1% o r 2 in ches wide, and we ighing

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ab o u t 24 o u n ce s, and stee l-tipped at b o th e nd s , flew from itspo sitio n in a lo om a nd stru ck the claiman t in the b ack a nd

sho u lder . He w as standing at the time , and the b low threwhim fo rward so that b e se iz ed ho ld o f a lo om with e ach hand toke ep from falling to the flo o r . He was twisted aro u nd and fe lta severe pain come in the right gro in as he w a s t hrow n in thispo sitio n . He co n tinu ed at his work d u ring Ju ly 1 , 19 19 , theday o f the accid ent , and Ju ly 2, altho u gh in great pain in the

gro in . He was no t ab le to wo rk o n the fo llowing day, Ju ly 3,and b e fo re leaving wo rk had spo ken o f the accid en t a nd the

pain to the weave r from who se lo om the shu ttle was thrownand to the se co nd-hand .

On Ju ly 3, 1919, he was fo u nd by D r . E dwin D . Gardn er tohave a strangu lated , right ingu inal he rn ia, and was sen t to St .Lu ke ’ s Ho spital , New Bedfo rd , fo r o perative re lie f . It wasthere ascertain ed that he had su ch strangu lated hern ia , a nd

that the append ix, then in a gangren o u s co nd itio n , ha d fallenin to the hern ial sac . He was o perated u po n fo r the gangreno u sappe nd ix, b u t no t fo r the hern ia, an operatio n fo r which wasthen impra cticab le . Ab o u t tw o ye ars b e fo re this in ju ry, viz . ,

o n Sept . 14, 1917, he had b e e n ope rated u po n fo r a hern ia inthe right sid e su stain ed at his wo rk fo r an o ther employer, theDartmo u th Mills . The employee had re tu rn ed to wo rk fo rhis fo rm er employer, the Dartmo u th Mills , in a b o u t Jan u ary,1918, a fter his previo u s hern ia and the operatio n there fo r, b u thad sto pped wo rk at perio ds o n acco u n t o f so re ne ss a nd painin the right side . He had fe lt n o tro u b le and was a b le to wo rkall right fo r several weeks prio r to this accid en t o f Ju ly 1 , 1919,when he was kn o cked o ver by a shu ttle .

It is fo u nd that the strangu lated hern ia, and the lodgme n to f the appendix in the hern ial sac were the re su lt o f the b lowa nd the strain rece ived when he was kno cked o ver by the

shu ttle , an d that d u e kn owledge o f the accid ent and in ju ry w a sre ce ived by the su b scrib er, a s shown by the evide n ce , in clu d ingthe su b scrib er ’s repo rt to the Ind u strial Accid en t Bo ard .

It is fo u nd that the claiman t was who lly in capacitated as are su lt o f the in ju ry o n acco u n t o f his weakened co nd itio n to

Jan . 28, 1920, the date o f the first he aring, and that from Jan .

28, 1920, he ha s b een partially in capacitated , re su lting from

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the in ju ry , and with the a id o f a tru ss wo u ld have a partiale arn ing capa city o f $12 per week co n tin u ing from Jan . 28,

1920. He is there fo re en titled to the payment o f to tal in ca

pa c ity compen satio n fo r a perio d o f twenty-e ight a nd five

sevenths we eks at the rate o f $14 a week, b e ing from Ju ly1 1 , 1919 , the e leven th d ay after the in ju ry, to Ja n . 28, 1920,

amo u n ting to $402 ; and to partial in capacity compe n satio n atthe rate o f from Jan . 28, 1920, to March 26 , 1920, viz . ,

e ight and tw o -seven ths weeks , amo u n ting'

to partialin capacity compen satio n b e ing tw o -third s the d ifference b e twee n$ 12 and $25, his average we ekly wage s at the time o f the in ju ry .

The aggregate amo u n t du e fo r compen satio n o n March 26 ,

1920, the date o f the se co nd hearing, is viz . , to talin capa city compen satio n , $402, and partial in capacity c om

pen satio n ,

In capacity compen satio n at the rate o f a week is’

to

co n tin u e from March 26, 1920, in a cco rd an ce with the pro visio n s o f the Wo rkme n ’s Compen satio n Act , inclu d ing sectio n12, Part III o f the act .

DAVID T . DICKINSON .

FINDINGS AND DE CISION OF THE INDUSTRIAL ACCIDE NT BOARDON RE VIEW .

The in su rer having filed a claim fo r review, the Ind u strialAccid e n t Bo ard se t the case d own fo r hearing o n review atBo sto n , Mass . , o n Thu rsday, May a nd no tified the

partie s .Pre sen t : Me ssrs . Ke n nard (chairman), Parks , Do nahu e ,

Gle a so n a nd Co gswe ll .Appearan ce s : Me ssrs . Sawyer, Hardy, Sto n e Mo rriso n

(Fra nk A . Lave lle , E sq . , o f co u nse l) fo r in su rer . Mr . Ab rahamBin n s , who appeared fo r the employe e a t the time o f the he aring b e fo re the Bo ard memb er, su bmitted the ca se to the Bo ardfo r d ecisio n u po n the reco rd .

Qu e stio ns : (1)Whe ther the co nditio n which ne ce ssita ted theo peratio n w a s ca u sally re late d to a perso n a l in ju ry a rising o u t

o f the emplo yme n t o f cla imant by the su b scrib ers ; (2)whe ther

the in su rer o r su b scrib ers had n o tice o r kn owledge o f the

in ju ry .

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DISSE NTING OPINION .

I d issen t from the decisio n o f the majo rity o f the Bo ard inthis case . Upo n the employe e ’s ow n te stimo ny, re lied o n by

the Bo ard , n o thing mo re than o ral no tice o f a n accid en t isshown . Oral n o tice is n o t kn owledge . So lomo n Brown ’s Case ,228 Mass . 31 . Ne ither is it shown that the seco nd-hand w a s

a n agent to re ce ive no tice . Blo om ’s Case , 222 Mass . 434 .

Kn owledge o n Octo b er 1 , o f co u rse , w a s no t as so o n a s praetic a b le after the in ju ry .

FRANK J . DONAHUE .

DISSE NTING OPINION .

I co n cu r in the d issen t from the de cisio n o f the majo rity o f

the Bo ard in this ca se . Se ctio n 18, Part II o f the act , provide s tha t “Wan t o f n o tic e shall n o t b e a b ar to pro ceed ingsu nder this act if it b e shown that the asso cia tio n , su b scrib er,o r a gen t had kn owledge o f the in ju ry .

”The mo st tha t ha s

b een shown by this emplo ye e is that he made a n o ral statemen t with re feren ce to his in ju ry to a se co nd -hand in the em

plo y o f the su b scrib er . E vid en ce which go e s n o fu rther thanthis, d o e s n o t show tha t the su b scrib er had knowledge o f the

in ju ry su ch a s is co n templated by the sectio n qu o ted .

WM . W . KE NNARD .

CONCURRING OPINION .

I co n cu r with the d ecisio n o f the ma jo rity in a flirm ing a nd

ad o pting the find ings a nd ru lings o f the Bo ard memb er .

This ca se is a b e tter case , u po n its facts , than So lomo nBrown ’s Case , re ferred to by the d isse nting memb er . The

employe e gave fu ll in fo rmat io n amo u nting to knowled ge o f his

in ju ry to the agen t fo r the employer o n Ju ly 3, tw o d ays afterhe su stain ed the in j u ry, Ju ly 3 b e ing the first d ay after he su s

ta ined the in ju ry that he was o b liged to leave wo rk . Whilethe emplo yer d id n o t comply with his d u ty u nd er the law (se e

Part III , sectio n 18, o f the a c t) a nd make an inve stigatio n ,

find o u t the facts, and within fo rty-e ight ho u rs make a repo rt

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o f them to the Indu stria l Acciden t Bo ard , this d u ty was perfo rmed a t a la ter date , Oc t . 1 , 19 19 , the emplo yer stating inthis repo rt, d e scrib ing the in ju ry : Shu ttle flew o u t o f lo om ,

hitting him o n the b ack, cau sing him to wren ch his right side ,”

a nd giving the d a te o f in j u ry as Ju ly 1 . In this repo rt theemployer perfo rmed his d u ty, altho u gh ta rd ily, a nd this stateme n t o f a fa ct that the emplo ye e had b een in ju red , and no t

that he claim ed to have b ee n inju red , shows tha t the employerhad kn owledge o f the in ju ry. In Brown ’s Ca se the employeed id n o t repo rt the o ccu rrence , which fina lly re su lted in a c o n

d itio n o f hern ia , u ntil twe n ty-tw o days la ter . The employer,however, thro u gh his age nt , to o k the employe e to a physician ,

and immed iate ly thereafter filed his repo rt o f in ju ry with the

Bo ard .

JOSE PH A . PARKS .

DE CRE E OF SUPREME JUDICIAL COURT ON APPE AL .

BRALE Y, J . The emplo yee , n o t having give n n o tice in writinga s pro vid ed in St . 191 1 , c . 751 , Part II, 15 a nd 16, asamended by St . 1913, c . 172, 1 , a nd c . 571 , 3, mu st re lyo n sectio n 18, that

“Wan t o f n o tice shall n o t b e a b ar to proc eed ings u nd er this a c t , if it b e shown that the a sso ciatio n ,

su b scrib er, o r agen t had knowledge o f the in ju ry .

”The Bo ard

memb er fo u nd that o n Ju ly 1 , 1919 , the emplo ye e , a weaver,while a t wo rk was stru ck a nd in ju red by a flying shu ttle , ando n Ju ly 3 , 1919 , b e fo re leaving wo rk, spo ke

“o f the acciden t

and the pa in to the weaver from who se lo om the shu ttle wasthrown , a nd to the seco nd-hand .

” It is u n n ece ssary to reviewthe med ica l histo ry o f the case o r to commen t o n the physica lre su lts fo r which he asks a nd ha s b ee n awa rd ed compen satio n .

The in su rer, having filed a cla im fo r review , o ne o f the qu e stio n s w a s ,

“Whe ther the in su rer o r su b scrib er had n o tice o r

knowledge o f the in ju ry .

” After affirming and ad o pting thefindings a nd ru lings o f the single memb er, a majo rity o f the

Indu strial Accide n t Bo ard , n o new evide nce having beenpre sen ted ,

“find a nd ru le that the employe e info rmed

the se co nd-hand , his d irect fo reman , a nd the agen t fo rthe su b scrib ers o n Ju ly 3 , 1919 , the first d ay u po n whichhe ha d ab sen ted himse lf from wo rk b e cau se o f the in ju ry o f

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Ju ly 1 , tha t he co u ld n o t go to wo rk , a nd that the su b scriberhad kn owledge o f the in ju ry as so o n a s practicab le after thehappe n ing there o f . It appears tha t the o versee r first knew o f

the a ccid en t ab o u t September 25 o r 26 , b u t n o repo rt o f the

in ju ry w as filed by the emplo yer a s requ ired u nd e r St . 191 1 ,c . 751 Part III , 18, u n til Oct . 1 , 1919 . It is settled byBrown s Case , 228 Ma ss . 31 , 37 , a nd Mu rphy ’s Case , 226Ma ss . 60, that b e ca u se kn owledge o n the part o f the employe ris a su b stitu te fo r the writte n n o tice the emplo yer mu st havekn owledge within the time when the written n o tice sho u ldhave b ee n give n . The wo rd knowledge ” is u sed in the statu tein its o rd in ary se n se as me an ing actu al knowledge , b u t no t

ab so lu te certa in ty . While n o tice o f wha t ha s happe n e d is n o ta ctu al kn owledge that the emplo yee ha s b e en in ju red , it issu ch inf o rma tio n a s m en u su ally act u po n in o rdinary hu ma naffa irs . “ Inte lligib le in fo rma tio n o f a fact e ither verb a lly o r in

writing, and coming from a so u rce which a party o u ght to givehe ed to , is gen erally co n sidered as n o tice o f it , except in case swhere particu la r fo rms are ne ce ssary .

” Ge o rge Ke n t , 7 Alle n ,16 , 18. The emplo yer, o r his a u tho riz ed agen t , o r his rep

re se n ta tive , u po n rece iving su ch info rmatio n , canno t say he iswitho u t mean s o f kn owledge o f the a ccid ent b e cau se it d id no t

happen in his pre se nce .

It is plain that the n o tice b e ing o ra l the emplo ye e cann o t preva il , u n le ss in fo rma tio n commu n icated to the se cond-ha nd isu nd er the sta tu te to b e tre a ted a s mean s o f knowledge by the

co rpo ratio n , tha t a n alleged in ju ry a rising o u t o f a nd in the co u rseo f his emplo ymen t had b e e n rece ived . The overse er o f the we avero om repre sen ted the emplo yer , a nd b eca u se o f his po sitio nit co u ld b e fo u nd tha t b e exercised su perin ten d ence o ve r theemplo yee s in the perfo rma n ce o f the ir wo rk . Ru ddy o . Ge o rgeF . Blake Ma nu f . CO . , 205 Ma ss . 172, 181 ; Blo om

’s Ca se , 222Mass . 434. If n o tice had b e e n given to the o verse er therewo u ld b e evid en ce wa rranting a find ing o f kn owledge by him o f

what had o ccu rred which wo u ld have b ee n su fficien t u nd er thesta tu te . Blo om ’s Ca se , 222 Mass . 434 ; McLe an

’

s Case , 223Mass . 342 ; Mu rphy ’s Case , 226 Ma ss . 60; Brown

’s Ca se , 228Mass . 31 ; Frier

’s Ca se , 232 Ma ss . 181 . B u t the emplo ye e ’su n co n trad icted a nd u nco n tro lled eviden ce is that the seco nd

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partie s at the So licito r ’s Ro om , City Hall , New Bedfo rd , Mass . ,

o n Wedn e sd ay, Jan . 7, 1920, at 2 P .M . , repo rts as fo llows :Appe aran ce s : Jo seph T . Ken n ey, E sq . ,

fo r wid ow ; Co rne l iu sW . Do no van , E sq . ,

fo r insu rer .

It is agreed that Catherine Lapa n is the widow o f LeviLapan , and was living with him at the time o f his d eath . Itis a lso agre ed that the de ced en t w a s emplo yed by

'

the Su llivanGran ite a nd Co n stru ctio n Compa ny at a n average weekly wageo f and that o n Ju ly 10, 1919 , he w a s take n su ddenlyill while at wo rk a nd d ied o n Ju ly 1 1 .

Qu e stio n : Whe ther the emplo yee re ce ived a n in ju ry , arisingo u t o f a nd in the co u rse o f his employmen t, which re su lted inhis d eath .

Report of the E videnc e .

All the ma terial evid en ce is su bmitted herewith .

Catherin e A . Lapan te stified that she w a s married to the

d eceased emplo yee twe n ty-five years ago . She ha s five children , three o f whom are u nder e ightee n years o f age . Her

hu sband was a n o u tdo o r wo rkm an by o ccu patio n . He had

b een wo rking in the qu arry fo r the Su ll ivan Gra n ite and Co n

stru ctio n Company a b o u t tw o a nd o n e-half mo n ths at the timeo f the in ju ry . He was n ever ill , that she rememb ers , and neverhad a d o cto r to her knowledge . On the mo rning o f the in ju ry,Ju ly 10, he le ft home a t the u su al time , aro u nd 7 o

’clo ck, fee ling very go o d . He had e aten his bre akfa st . Be twe e n 1 1 a nd

12 o’clo ck a m a n rang her b e ll and her hu sb and came up a nd

to ld her he had hu rt himse lf . She sen t fo r D r . Pickens , thefamily physician . Her hu sb and complained o f severe pain allthe time while he w a s at home ; it never ce ased . Whe n the

d o cto r came her hu sb and said that he fe lt his stomach givewhen he w a s o ver-reaching while at wo rk . This was Thu rsd ay , Ju ly 10. Her hu sb and co nt in u ed in great pa in u n til hew a s remo ved to the ho spita l o n Ju ly 1 1 , b e twe e n 2 and 3

o’clo ck . She had to keep him propped with pillows all thetime . D r . Picken s called thre e time s in the twenty-six ho u rsher hu sb and remained a t home . Her hu sb and to ld her heo ver-reached himse lf lo ading a team . He was lo ad ing a teamwith sto n e . To her knowledge that was his regu la r wo rk . Her

hu sb a nd d ied a t P .M . o n Ju ly 1 1 .

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Cro ss-examina tio n : She was n ever d own to the qu arry . She

kn ows her hu sb and was wo rking o n sto n e b ecau se he to ld her .

He was a lab o rer there ; he d id no t d o the drilling . He ho istedsto n e . She d o e s n o t kn ow how this sto n e w a s ho isted ; he w a s

chain ing up a sto ne . He said a s he w a s over-re aching, he fe lta su dd en jerk o f the stomach .

Jeremiah Barry, ca lled by the pe titio ner, te stified that he isa fofiem an fo r the Su lliva n Gra n ite and Co n stru ctio n Company .

In Ju ly, 19 19, Levi Lapan wo rked u nder him , a nd had b een

fo r a co u ple o f mo n ths . He w a s a regu la r lab o rer . He wo u ldtake the ro u gh sto n e and pu t it in the shed . The sto n e wo u ldb e b ro u ght from the qu arry o n teams and he wo u ld take it o ffand pu t it in the shed . Whe n the m en go t thro u gh with it heo ld b ring the sto n e b ack aga in . The sto ne was placed thereby a d errick o n a cha in . He did wo rk o u tside and he lped tolo ad te ams . Part o f his du tie s w a s to he lp lo ad te ams . On

Ju ly 10 he sen t him to lo ad a te am with ce llar sto ne . Thissto ck we ighs from 100 to 300 po u nd s . He u sed a d errick .

The m an wo u ld he lp chain the sto n e o n the d errick, lifting thesto ne and the chain u nder it , if n e ce ssary, with a pro p o r by

hand , a nd the n pu tting the chain a ro u nd it and swinging itfrom the gro u nd . The derrick ho isted the sto n e up. He sentLapa n o u t to d o this wo rk tha t mo rn ing . This te am he w a s

to lo ad carried a lo ad o f 3 o r 3% to n s . Whe n Lapan wen t o u tto d o the wo rk he appe a red a ll right . An o the r fe llow w a s

lo ading the team with him . They were within his View ,

ab o u t 10 o r 15 feet away from him . He saw Lapa n lo ad ingthe te am . The team w a s a b o u t ha lf lo ad ed when Lapa n camein to the shed to him a nd sa id he had a n awfu l pain acro ss here

(ind icating the a bd omen). He to ld Lapa n to sit d own , and ashe was no t getting a ny b e tter he to o k him in to the b lacksmithsho p by the fire . Lapan said the pa in was getting wo rse and

go ing up farther, so he wen t o u t and go t the e ngine er ’s au tomo b ile a nd se n t Lapan home with a n o ther m a n . He to ld himto se e a d o cto r, and Lapa n sa id he wo u ld call his family physic ia n . Lapan d id no t explain to him how it happe n ed ; thatis all he kn ows a b o u t it .D r . Dana E . Picken s , called by the petitio ner, testified tha t

he is a practicing physician a nd su rge o n , a nd ha s b e en in New

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Bed fo rd a b o u t fo u r ye a rs . On Ju ly 10, 1919 , he w as calledby Mrs . Lapan to see her hu sb and . He d id n o t talk withLapa n very mu ch b e ca u se he w a s in su ch pain and a go ny,b u t he a sked him if b e hu rt himse lf and Lapan sa id he tho u ghthe had whe n lifting . He said the first he fe lt was a qu ick paintake him whe n he was l ifting a sto ne. From a ll appearan ce sit lo o ked as tho u gh he ha d a n o b stru ctio n o f the b owe l , so hegave him tre atme n t fo r it . He saw him that n ight and againthe next mo rn ing . He was still very b ad with pain ; he hadhad n o rest that n ight . He fe lt Lapan sho u ld go to the ho s

pital , and to ld him if he was no t a ny b e tter at n o o n he wo u ldsu re ly send him . At no o n he was still had , so he sen t him to

the ho spita l a nd he w a s operated o n at 4 o’clo c k in the after

no o n by D r . Barn e s . He was pre sen t a t the operatio n and

gave the ether . A lo o p o f the in testine had go t in to the retroL

cecal fo ssa a nd go t cau ght there and co u ld n o t get away ; ithad tu rned over o n itse lf, twisted , and shu t it o ff en tire ly .

This is termed a n internal he rn ia o f the vo lvu lu s . Overstra ining o r lifting o r qu ick jerking might cau se tha t fo rcing o f the

inte stine thro u gh the open ing, o n the same prin ciple as ahern ia o n the o u tside . Whe n they started to give Lapan e therhe started spitting up some b lo o d , coming from the inte stin e s .His co nd itio n was some thing acu te , some thing which had comeo n very su dden ly . This co nd itio n was cau sed by strain ; to

fo rce tho se mu scle s in there wo u ld take some fo rce . No rmallyit wo u ld n o t ge t in there . He fo u nd this b owe l anc ho red inthere and twiste d . When this b owe l go t an chored and co u ldn o t mo ve , it twisted o n itse lf and shut it en tire ly o ff . It issomewha t similar to a hern ia exterio rly, where part o f the

b owe l come s o u t a nd ge ts an cho red . He d id no t have a ny

o ther talk with Lapan . Lapan sa id he had hu rt himse lf byl ifting, he tho u ght . He fe lt it when he w a s reaching fo r acha in a nd lifting o n the sto ne . He said it go t him very sharpas if some thing had bro ke n o r give n way, a nd he had all theappearan ce s o f a m a n b e ing hu rt ; he was sho cked as o ne

wo u ld b e from in te stinal tro u b le o f that so rt .

Cro ss-examinatio n : He is n o t a su rgeo n . He sign ed the

d eath certificate . He pu t d own a s the ca u se o f d eath “ in te stinal o b stru ctio n . (De ath certificate o ffered in evidence by

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that b owe l in there wou ld ca u se it ; he su ppo ses that if a m an

w as in a tight place , where he co u ld get compressio n e no u gho n his abd omen , that might cau se it . A m an wo u ld n o t getthis co nd itio n by being qu ie t ; he wo u ld have to do something ;it is really a n acciden t . Walking aro u nd wou ld n o t pro du ceit . Ord in ary stra in wou ld no t cau se it.Re—cro ss examin ation : Some o ver-reaching m ight be o rd in arystrain , b u t if o ne is in a certa in po sitio n and reache s ju st righthe wo u ld fo rce his intestin e s pretty hard . He co u ld n o t sayju st what po sitio n Lapan was in ; he d id no t ask him . Thishern ia was ju st in behind the ce cum . It was no t thro u gh theabdominal wa ll , it was a n in ternal hern ia o n the right side . Itpro tru d ed thro u gh the fo ssa, right into the sac and cau ghtthere . It was near the cen ter o f the b ody. A fo ssa is a d epressio n or po cket .Dr . He nry Barnes, called by the petitioner , te stified that

he is a practicing physician a nd su rgeo n in New Bed fo rd , andhas b een fo r twelve years . He d oes su rgery to a consid erableexten t . He does a su rgica l o pe ratio n every d ay a nd frequ en tlydo es several in a day. He saw Levi Lapa n at the DerbyHo spital a nd had some talk with him as to what cau sed hisco nditio n . Lapan said he was wo rking o ver at the qu arry and

he w a s lifting a nd he su dd enly felt a pain in the b e lly, and

sin ce tha t time had bee n in pain , which grew worse ; he

vomite d . He o perated o n Lapa n and fou nd what is called an

in tern a l hern ia with a vo lvu lu s o f the bowel a twist o f thebowe l , a nd ga ngrene of the b owe l had started . It w a s whatthey call an in te stina l o bstru ctio n . The ca u se o f the c o n

ditio n was recen t ; it mu st have b e e n becau se gangrene o f the

bowe l wo u ld probably set in within fo rty-eight ho u rs . He d id

n o t have a ny o ther talk with him . He got the sym ptoms a ndhisto ry from Lapan before he was o perated o n . The co nd itio nhe fo u nd there cou ld have be e n cau sed by l ifting . By liftingthe pre ssu re from the abdominal mu scle s wou ld fo rce the bowe l ,a nd if a ny gas happe ned to b e in it , it wou ld be like ly to fo rcethe bowe l in to that little fo ssa . He fo u nd the bowe l a n cho redthere in the region of the appendix . The twist was lower d own .

The m a n d ied abou t ten o r fifte en min u tes after the operatio n .

When they started to give him ether he commen ced to vomit,

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and it se emed to be almost cle ar b lood ; he n ever saw so mu chb lo od . That indica ted he mu st have had a n internal hem o r

rhage , a hemo rrhage from the lin ing of the intestin a l tractsomewhere . When they re leased the bowe l there was a n a reao f a fo o t where it w a s dark, a nd he su ppose s o ne of the ve sse lshad ru ptu red and that is where the blood came from . Thatwou ld ind icate the co ndition was o f recen t o rigin . He wasapparen tly healthy o u tside o f this co nditio n ; there w a s n o

o ther tro u b le there at all . His b owe ls seemed to b e empty ; hedid n o t have anything in the in te stinal tract to cau se it . The

bowe l , in ste ad of b e ing free , wo u ld be held a t that place , a nd

in con sequ en ce of b e ing he ld in that place it wou ld ca u se atwist in a no ther place , and b o th o f these things wo u ld ca u sepain immed iate ly in a perso n having that state o f affa irsexisting .

Cross-examinatio n : He wou ld no t say there was an ab no rmalconditio n there, o r that the co nd itio n he fo u nd there wo u ldcome from a n abno rmal cau se . The strain o f lifting wo u ldcau se it ; that is the o n ly thing that wo u ld cau se it stra in .

No thing e lse cou ld cau se it ; there mu st have b een some pre ssu re o n the abdominal mu scle s to press it in there . When everhe finds a co nditio n o f that kind he always lo o ks fo r strain ofsome kind . When he lo oks fo r a strain he d o es n o t e stimatefrom the co ndition he find s ju st wha t kind o f a strain cau sedit . There are many kinds o f strain . The part tha t we n tthrou gh was abou t twe lve inche s from wha t they call the ileoca cum va lve . Of co u rse , in the are a tha t was involved , thevessels were all blo cked , thromb o sed , d u e to the strangling o f the b owel . The mese n tery seemed to be of n o rmalle ngth. The omen tu m was all right, there was no trou b le withthat . The omen tum acts like a pro tection a good d e al likean apro n . If there is a weak spo t in the bowe l it is apt to sticko u t if it has time to d o it . It is likely to cau se a co nd itionsu ch as he fo u nd , b u t it cou ld cau se it if he had some d iseasedco nditio n in the abdome n befo re . There were no co nditio n sthere that might have b een of lo ng standing ; it was perfectlynormal . He cou ld no t te ll whether o r no t a ny co nditio n existedbefo re this strain . He did no t re se ct the ome n tum . They ju sts imply re le a sed it , he was in su ch po or co nditio n . He pu t his

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fingers ins id e the bowe l and stre tched it a nd the n he n ickedfo u r o r five little pla ce s a lo ng there to make it larger a nd whenhe d id the bowe l gradu ally slipped o u t and u nfo ld ed . Therew a s a comple te in te stin al o b stru ctio n there ; the omen tu m hadn o thing to do with it . It was n o t ho ld ing the o b stru ctio n .

He d id n o t n ick the omen tu m , ju st the fo ssa . They d id n o t

have anything to d o with the omentum . He ha s se en thre ecas es b e fo re , o f this kind , that he rememb ers . The ca u se o f

them was no thing b u t strain . On e o f the ca se s was lifting,some thing similar to this o ne ; the o ther was pre ssu re o n the

abd ome n . The strain to ca u se that mu st have b e en a veryheavy strain . If the b owe l happe ned to b e in the right lo catio n when the strain came , it wo u ld n o t take mu ch strain to

pu sh it in . He fo u nd the me sen tery o f n o rmal length. It haslength en o u gh to a llow the b owe l to ge t in there . He kn owsno thing ab o u t the m an having had b re akfa st the d ay b e fo rethe o peratio n ; he knows he sa id he w a s perfe ctly we ll whenhe wen t to wo rk . He saw him ab o u t twen ty-fo u r ho u rs aftertaking sick, and his men tal co nd itio n w a s pe rfe ctly clear . He

wo u ld say this co nd itio n was ca u sed b y l ifting, from whatLapa n to ld him . With simple o ver-re a ching it co u ld b e po ssib le to d o it if the b owe l ju st happe ned to b e in tha t lo catio n .

Over-reaching co u ld cau se it . It is gu e ssing o n his part .Qu e stio ned b y Commissio n er : He is pre tty su re in his mind

that a stra in o f lifting cau sed this . No thing e lse ca u sed it,b e cau se when he we n t to wo rk he was fe e ling we ll u ntil helifted , and then the pa in stru ck him immed ia te ly . That iswhy he thinks it ca u sed it . He d o e s n o t think o f a nything e lsethat co u ld have cau sed the co nd itio n he fo u nd . It wo u ld b ethe same co n d itio n o ne gets in any hern ia except it w a s in sidethe b o dy .

Re-cro ss examinatio n : There was ma rked inflammatio n d u eto co nge stio n a nd co n strictio n . There were some light , pla sticadhe sio n s . After the o peratio n he w a s o f the same o pin io nas he is to -d ay . At that time he d id n o t attrib u te mo reimpo rtance to the co nditio n o f the omentum ; they n ever lo o keda t the ome n tu m .

D r . William F . McKn ight , called by the in su rer, te stifiedthat he is a practicing physician in Fall River . He spe cializes

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gu inal hern ia , o r umbil ical hern ia or d ire ct hern ia . A hern iais a pro tru sion o f viscu s thro u gh some ope n ing. It is po ssib leto get a hern ia o r piece o f b owe l throu gh the me sen tery o r

thro u gh the omen tum ; it ha s to go thro u gh and be ca u ght insome thing b e fo re it is a hern ia .

Cro ss-examin atio n : The sma ll b owe l is faste ned to the me sentery which in tu rn is fastened to the wall . There are operatio n swhere the small b owe l is remo ved , b u t in d o ing that the me se ntery is re se cted . He ha s do n e tha t . He d id it o n a living d ogin Bo sto n , and he ha s see n it d o ne severa l time s . The me se ntery d o e s no t always have to b e re sected ; it c an b e draggedup. He has never seen a hern ia su ch a s this o ne de scribed .

He d o e s no t know how many he rn ias he ha s see n ; he ha s se e n agre at qu an tity . He ha s had n o experie n ce with this kind o f

hern ia . When he expre sses a n o pin io n o n what fo rce is n e ce ssary to pu sh this thing in , he is no t spe aking from experie nce .

His experien ce in su rgery is what come s to him in ge ne ralpra ctice and what he fo llows up in practice . He ha s b e e n

pra cticing since 1917 . Mo st o f his practice is internal med icineand d iagno sis . It is no t po ssib le fo r the sma ll b owe l to ca tchin the fo ssa a fo o t away from the ileo cecal va lve , u n le ss o n ehad a very long me sen tery . If a m an came to him and sa idhe lifted and o ve r-reached himse lf, o r o verstrain ed himse lf lifting, and the minu te that the overstrain came o n he had a

su dd en pain a nd the pain grew mo re vio le nt , a nd twe nty-sixho u rs a fterward he w a s o perated o n and a co nditio n o f a ffa irswas fo u nd , as D r . Barne s d e scrib ed, he wo u ld n o t b e willingto admit this co nd itio n cau sed it ; it wo u l d b e very u nre a so nab le . He cou ld no t a scrib e a ny ca u se which wo u ld do it .Re-d irect examin atio n : He diagnosed a gre at many ca se s

fo r su rge o ns .

D r . Thomas F . Gu nn ing, called by the insu rer, te stified tha the ha s been pra cticing sin ce 1891 . He ha s b ee n medica l examine r fo r fo urtee n ye ars . He ha s perfo rmed some au topsie s , b u tn o t many . He ha s never see n su ch a co nd itio n as de scrib edhere to -day. He wo u ld n o t co n sid er a co nditio n su ch as describ ed to -day to b e an in terna l hern ia . No hern ia has be e nde scrib ed by the d o cto rs fo r the plaintiff, so far as he co u ld

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fo llow . He d o e s n o t b e lieve that the lodgment o f the in testinewithin a fo ssa come s within the n omencla tu re o f hern ia . Ahern ia is a pro tru sio n . Whe ther it was a hern ia o r no t , in thiscase , he is n o t su re ; ne ither d o cto r de scrib ed o ne . The omentu m is fo r pro tective a nd su ppo rting pu rpo se s o f the abdomin a lcavity . If he fo u nd the omen tum wrapped aro u nd and tightlyco nstricting the lower part o f the ile um , ab o u t a fo o t from the

ileo ceca l valve , ca u sing a comple te inte stin a l o b stru ctio n , itmight b e within the re a lms o f po ssib ility, a s a gre a t ma nythings are in medicine , tha t this co nd itio n w a s ca u sed by astrain as d e scrib ed to -d ay , b u t the reco rd s show n o su ch case s .There a re ca se s o n re co rd su ppo sed to b e d u e to Vio le n ce , asthis ca se , b u t the re a so n he co n siders it u nrea so n a b le , pra otica lly impo ssib le a nd e n tire ly impro b ab le is tha t the m u sc u

la tu re o f the lifting mu scle s o r the b e lly mu scles are e n tire lysepa rate from tho se o f the inte stine s ; they have a d iffere n tmu scu la tu re . If they were n o t so , m e n wo u ld n o t b e able toe ngage in a ny he avy wo rking jo b s . His in ten tio n is to provethey are e n tire ly d iffe ren t , a nd n o t u nd er the same co n tro l asthe lifting mu scle s .Cro ss-e xamina tio n : The in te stina l mu scle s are no t u nder the

same co n tro l as the lifting mu scle s . This b e ing so , to a cco u n tfo r ingu in a l hern ias o n e ha s a we akne ss within his abdomina lwa ll . Hern ia is o ften a ssumed to come from lifting . If thefa ct tha t the inte stin a l mu scle s are e ntire ly separate from the

b elly mu scle s had anything to d o with this particu lar ca se , thesame wo u ld apply to ingu ina l hern ias . It is the same pro ce ssin a n ingu in a l hern ia ; it is the pro tru sio n o f the b owe l byreaso n o f lifting in to the abdomina l wa lls, simply in a d iffere ntlocatio n o f the b o dy . He canno t acco u n t fo r a n ingu inal hern ia . He is we ll awa re that lifting is taken as a mo re o r le ssadequ ate cau se fo r the pro du ctio n o f hern ia s ingu in a l hernias . It is no t the same pro ce ss to get a hern ia , su ch as d escribed here , and to ge t a n ingu inal hern ia , becau se the ingu inalhern ia is the giving way o f ab dominal mu scle s . If a n ingu ina lhern ia is cau sed by pressu re , then a hern ia de scrib ed here iso b tained by means o f the same pro cess . As he sa id b e fo re ,there was no hern ia de scribe d here . He is no t familiar e no u gh

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with the su rgical wo rks o f to-day to know that this kind o f ahern ia is admitted , the in ternal hern ia in the fo ssa as d escrib ed by D r . Barnes . He is no t a su rgeo n . The o pera tio n she perfo rms are all po st-mo rtem . He ha s neve r se e n in his

experie nce the kind o f hern ia desc ribed here . He ha s neverpe rfo rmed an o pera tio n fo r the redu ctio n o f hern ia . He ha s

see n o peratio n s perfo rmed fo r external hern ia . Of his knowledge , he wo u ld no t say the hern ia described by D r . Barne swas n o t a typical hern ia reco gn ized by au tho ritie s , b u t hewo u ld no t o ffer his knowledge as expert o n that . He cann o tco nce ive it b e ing called a hern ia .

Re -d ire ct examinatio n : He is b a sing his o pin io n o n the facttha t this was no t a hern ia . His opin io n is that the vio le nceo r the strain as explained here co u ld in no w ay ca u se a ny kindo f a hern ia with which he is acqu ain ted o r is like ly to makethe acqu a in tance o f.

Qu e stio ned by Commissio ner : He thinks that a n o b stru ctio no f the b owe l might come to a m a n while he lay in b ed , d u eto mu scu lar a ctio n o f the b owe l . He might have had a vo l

vu ln s , b u t he might have had it while in b ed from n a tu ralcau se s , and the adhe sio ns which wo u ld su re ly fo llow, l ight adhe sio ns , are b o u nd to ho ld the se in te stine s where they are . Itpro b ably co u ld n o t b e b ro u ght ab o u t by lifting o r strain . Alift o r strain lo o ks like a mighty improb able so lu tio n o f the

affa irs , a s he expla ined b e fo re . He he ard the evid en ce in thisca se , a nd he d o e s n o t think the lift o r stra in was o f su ch vio

le nce as to prod u ce a hern ia o f a ny kind .

D r . Barn e s , re ca lled by the pe titio ner, te stified that o ne do esno t have to re sect the me sente ry to have this b owe l mo ve u n

le ss it is to o fa r go ne , tha t is , to o d ead to come b a ck to itse lf .He rememb ers D r . McKn ight coming to the Derby Ho spital .He was in the receptio n room with Mr . Sylvia , an d he a nd

D r . Picke n s were ju st go ing o u t . D r . McKn ight a sked ab o u tthe ca se a nd he to ld him it was a case o f in te stina l o sb tru c tio n .

They d id no t eve n sit down . There are tw o kinds o f o b stru otio ns to the bowe ls , mechan ical a nd para lyt ic . This casewo u ld b e termed mechan ical o b stru ctio n becau se it w a s tiedo ff by me chan ica l means ; it had n o thing to d o with the nerve

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THE COMMONWEALTH OF MASSACHUSETTS,C ITY OF N E W BED FORD .

I, the su b scrib er, d o hereby c ertify tha t it appears by the Registry o f

Dea ths o f sa id New Bed ford , tha t Levi J .Lapan died in New Bedfo rd ,Mass .

The re co rd is in the wo rd s and figu res fo llow ing, Viz . :

Da te o f death : Ju ly 1 1 , 1919 . Nam e o f de c ea sed : Levi J. Lapan .

Sex:M . Conditio n :M . Age : 45 yrs .,2 m o s .

,24 days .

Disease o r ca u se o f d ea th : Intestin a l ob stru c tio n .

Resid en c e : New Bed fo rd . Oc c upa tio n : Qu arry wo rker.

Pla c e o f d ea th : New Bedford . Pla c e o f b irth : Canada .

Nam e an d b irthpla c e o f father : Levi , Canada .

Nam e and b irthpla c e o f m o ther:Angelin e Ween ert,Canada .

Pla c e o f b u ria l : New Bedfo rd .

In w itn ess whereof I have hereu nto aflixed the sea l o f the sa id c ity o f

New Bed fo rd this tw enty-se cond day o f Ju ly, 1919 .

JAMES DIGNAM,

Assista nt City Clerk.

B oa rd Mem ber’

s Findings a nd Ru lings .

The qu e stio n in this ca se is whether the d e ce a sed rece iveda n in ju ry and whe ther sa id in ju ry b ro u ght ab o u t his d e a th .

On the qu e stio n o f the d eced en t re ce iving a n in ju ry, w e havethe evid e n ce o f his wife , who te stified tha t the d ece a sed , whe nhe w a s b ro u ght home , to ld her that

“he o ver-re a ched himse lf

lo ad ing a te am while at wo rk . D r . Pickens , called by thepetitio n er, sta ted tha t the employe e had stated to him thatthe first he fe lt w a s a qu ick pa in take him whe n he w a s liftinga sto ne .

”D r . Barn e s , ca lled b y the pe titio ner, stated tha t the

de ce a sed stated “he w a s wo rking o ver a t the qu arry a nd he

w a s lifting and he su dd enly fe lt a pa in in the be lly, and sincethat time had b e e n in pa in . Jeremiah Barry, who is a fo remanfo r the su b scrib er, te stified tha t he saw the d e ce a sed lo ad ing thete am , a nd tha t “when the te am w a s ab o u t ha lf lo ad ed Lapa ncame in to the shed to him and sa id he had an awfu l paina cro ss here (ind ica ting the ab d ome n). It wo u ld appear fromthis evid ence that the employe e re ce ived an inju ry .

On the qu e stio n Of whether there w a s cau sa l re la tio n betweenthe deceden t ’s d e a th a nd said in ju ry, w e have the med icalevide n ce o f D r . Picke n s a nd D r . Barne s fo r the claiman t, and

D r . McKn ight a nd D r . Gu n n ing fo r the in su rer . On the re lative va lu e o f the med ica l te stim o nv D r . McKn ight sta ted that

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he specia lize s in intern a l med icin e and ne u ro lo gy a nd is n o t asu rge o n . D r . Gu n n ing stated also he w a s no t a su rge o n . D r.

Barn e s te stified that he spe cia lize s in su rgery a nd that he perfo rms su rgica l opera tio n s every d ay ; tha t he d o e s su rgicalwo rk fo r ab o u t a ll the d o cto rs in the city o f New Bed fo rd , perfo rming ab o u t five hu ndre d ma jo r o pera tio ns a ye ar in add itio nto the min o r o n e s . D r . Barne s perfo rmed the o peratio n o n the

d ece a sed , and if his evide n ce is to b e re lied u po n the claima n tha s mad e o u t a case . I wo u ld say tha t D r . Barn e s impre ssedm e very mu ch. He d e scrib ed to my mind very a ccu ra te ly theco nd itio n which he fo u nd when he perfo rmed the opera tio n .

He te stified tha t there w a s n o d o u b t in his mind that theco nd itio n which he fo u nd a nd which w a s the ca u se o f the em

plo ye e’

s de a th w a s bro u ght ab o u t by the“ stra in o f lifting ” at his

wo rk, and“ that no thing e lse cau sed it , b eca u se when he wen t

to wo rk he (the dece a sed) was fee ling we ll u n til he l ifted a nd

the n the pa in stru ck him immed iate ly .

” I have a gre a t d e a lo f re spe ct pe rso na lly fo r D r . McKn ight a nd D r . Gu nn ing, b u tI fe e l tha t in View o f the impre ssio n tha t D r . Barne s madeupo n m e , a nd the fa ct that he is a su rge o n , his evide n ce ise ntitled to the gre a te st we ight .On a ll the evid ence , I find tha t the de ced en t re ce ived an

inju ry which a ro se o u t o f a nd in the co u rse o f his employme n to n Ju ly 10, 1919 , and tha t his de a th o n Ju ly 1 1 was ca u sa llyre lated to sa id in ju ry . I a lso find that his ave rage we eklywage s were tha t the cla ima nt , Catherin e A . Lapa n ,

was his lega lly married wife a nd w a s l iving with him a t the

time o f his d e a th, a nd tha t she is there fo re e n titled to the

paymen t o f compe ns a tio n from the in su rer a t the ra te o f $10

a we ek fo r a pe rio d o f fo u r hu ndred weeks , a to ta l o f

J A . PFiled Jan .

OSE PH “ KS

FIND INGS AND DE CISION OF THE INDUSTRIAL ACCID E NT BOARD .

The in su rer having filed a cla im fo r review , the Ind u strialAccid en t Bo ard heard the partie s o n Thu rsday, Fe b . 19 , 1920,

at Bo sto n , Ma ss .Pre se n t : Me ssrs . D ickin so n , Parks , Do n ahu e , Gleaso n a nd

Co gswe ll .

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Appeara nce s : Jo seph T . Ke nney, E sq . , fo r widow ; Co rne liu sW . Do nova n , E sq . , fo r in su rer .

Qu e stio n s : (1)Whe ther the su b scribers o r in su rer had no ticeo r knowledge o f the in ju ry ; (2) whether the emplo yee re ce iveda perso nal inju ry arising o u t o f his emplo ymen t which termin a ted fatally .

As requ e sted by the in su rer, at the hearing o n review, the

verb atim tran script o f the evidence in trod u ced at the hearingb e fo re the Bo ard member is made a part o f this reco rd ; alsothe repo rt o f in ju ry, filed by the su bscrib ers, is add ed to a nd

made a part o f the re co rd .

Insu rer’ s mo tio n fo r permissio n to introd u ce additio nal evidence is de n ied .

The insu rer filed the fo llowing requ ests fo r ru lings

1 That the petitio ner, the widow o f the employee , has fa iled to Show

tha t she o r the employee gave no tice in writing to either the insu rer, the

employer, o r the agen t o f e ither.

2. Tha t the petitio n er has failed to show that, fa iling to give no tic e inwriting o f the tim e , pla c e and cau se o f the in ju ry, either she o r the em

ployee b ro u ght hom e kn ow ledge o f the a lleged in jury to the insu rer, theemployer, o r the agent o f e ither.

3 . Tha t in view o f the failu re o f the petitio ner and the employee togive no tic e in writing o r to b ring hom e kno wledge o f the tim e , pla ce andc au se o f the in ju ry to the insu rer, the employer o r the agent o f either,

a s so o n as pra ctic ab le after the a lleged in ju ry o c cu rred , these pro c eed ingsare b arred and the petition er’s c la im m u st b e dismissed .

4. Tha t the petitio ner has no t su sta ined the b u rd en o f proving thatthe co nd ition which c a u sed her d ec ed en t

’s dea th was du e to o r ca u sally

related to a persona l in ju ry arising o u t o f and in the c o u rse o f sa id de

ced ent’s employm en t .

5. That the dec ision of the single m emb er is no t su sta ined b y any cred

ib le evid en c e co nn ecting the a lleged in ju ry with the employee’s dea th .

6 . Tha t the petitioner has no t proved her c la im that the employeedid in fa c t su stain a perso na l in ju ry arising o u t o f his employm ent .

7 . Tha t it is pu rely c o n jec tu ra l whether o r no t the employee su stain eda stra in while employed by the su b scrib er, and tha t su ch a stra in as he

is a lleged to have rece ived was responsib le fo r his d eath .

8. Tha t it is no t prob ab le , u pon all the evid en ce , that a strain su ch as

the employee is a lleged to have rec eived , w as an adeq u a te ca u se fo r the

c onditio n which resu lted in the employee ’s dea th.

By C . W. DONOVAN ,

Attorn ey.

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wo rked , testified that ano ther m a n was lo ading the team withthe de ce a sed ; that they were within his view, ab o u t te no r fifte en fe et away from him ,

”a nd that whe n the te am w a s

ab o u t ha lf lo aded the employe e came to him and said ,“ I go t

a n awfu l pa in acro ss here ,” po in ting to his stoma ch : tha t

Ba rry sa id ,“ Sit d own ; mayb e it is cramps yo u go t ; a nd

tha t he advised him to se e a do cto r, a nd sen t him home in a n

a u tomo b ile . This witne ss also te stified tha t the emplo ye e didn o t expla in to him

“how it happe n ed ; that is all he knows

ab o u t it .”

On Ju ly 12, 1919 , tw o d ays after the in ju ry, a nd after theemploye e had be e n remo ved to the ho spita l o n Ju ly 1 1 , wherehe d ied o n the same d ay , the emplo yer mad e a written repo rto f the in ju ry, which w a s filed with the Bo ard o n Ju ly 16 , 1919 .

In this repo rt, u nder Se c . D 3, ca lling fo r a de scriptio n o f how

the in ju ry occu rred , it is sta ted tha t the employe e “ was take nill su dd e nly while a t wo rk and w a s remo ved to the ho spital .The physician sa id he had a strain which ca u sed a ru ptu re o f

which he d ied o n Frid ay .

”

As the in ju ry o ccu rred b e fo re the en actment o f St . 1920, c .

223, amend ing se ctio n 18 o f Part II, the case is n o t a ffe cted bythe ame ndme nt . The Bo ard fo u nd that o n the date o f the

repo rt the su b scribe r had kn owledge o f the in ju ry. That finding mu st sta nd if there is any eviden ce to su ppo rt it . Whileit ha s be en he ld by this co u rt that a repo rt o f a n in ju ry by a n

employer , based u po n a n o ra l n o tice o f it give n by the em

plo ye e , d o e s no t make o u t kn owledge o f the in ju ry b y the

emplo yer, a nd that o ra l no tice is n o t knowledge (Brown’s Ca se ,

228 Ma ss . 31 , w e a re o f opin io n that in the case at b arit co u ld n o t b e ru led that the find ing that the employer hadknowledge o f the in ju ry w a s u nwarran ted . In re ferring to

se ctio n 18 o f Part II it was sa id in Brown ’s Ca se:su pra , tha t“the d u ty o f the employer u nd er this se ctio n is to make a n

inve stiga tio n , find o u t the fa cts and to ‘keep a re co rd o f’

the

fa cts, a nd having fo u nd o u t wha t the facts are , the n withinfo rty-e ight ho u rs make a repo rt o f them to the Indu strialAccid en t Bo ard .

” It may b e reaso nab ly in ferred from the

sta teme n t in the report that in the perfo rman ce o f its d u ty the

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employer had inve stiga ted and fo u nd what the fa cts were ;that inqu iry had b een mad e o f the a ttend ing physician , who

te stified tha t o n the d ay o f the in ju ry he w a s cal led to atte ndthe employee , a nd asked him if he hu rt himse lf,

“a nd Lapa n

sa id he tho u ght he had when l ifting . He said the fir st he fe ltw a s a qu ick pain take him whe n he w a s lifting a sto ne .

Lapan sa id he had hu rt himse lf by lifting, he tho u ght . He

fe lt it when he was re a ching fo r a chain and lifting o n the

sto ne . He said it ca u ght him very sharp as if some thing hadb roken o r give n w ay , and he had a ll the appearan ce s o f a m a n

be ing hu rt .” The physician also te stified tha t the employe e ’sco nd itio n was a cu te a nd came o n very su dde nly ; that thisco nd itio n w a s cau sed by a stra in . It

.

is a ratio n al infere n cefrom the sta temen t in the repo rt that the employer in the perfo rm a n c e o f its d u ty mad e an Inve stiga tio n o f the facts , in the

co u rse o f which it co n su lted the physicia n and from him oh

ta in ed in fo rmatio n upon which the repo rt w a s mad e tha t “the

emplo ye e had a stra in which cau sed a ru ptu re o f which hed ied .

”

The evid en ce tha t the employer ’s fo reman , Barry, was pre sentwhe n the in ju ry was rece ived and kn ew tha t the employe e w a s

su ffering gre a t physical pain and had to give up wo rk, toge ther with the fa cts that the employer had knowledge that theemploye e had been remo ved to the ho spital a nd w a s in fo rmedby the physician tha t he had su ffered a strain which ca u sed a

ru ptu re from which he d ied the n ext d ay , wa rran ted a find ingtha t the employer had knowledge o f the in ju ry . Blo om ’ s Ca se ,222 Ma ss . 434 Carro ll ’s Case , 225 Ma ss . 203 ; JeremiahMu rphy ’s Case , 226 Mass . 60. Se e Wa lkde n

’

s Ca se , a n te .

We find no thing in Brown ’s Ca se , su pra , at varia n ce with theco nclu sio n here reached .

D ec ree afirmed .

Filed Jan . 15, 1921 .

1 90

CASE No . 895 . (237 Mass .

ROBE RT ROURKE , E mployee .

HOLYOKE MACHINE COMPANY, E mployer.

AME RICAN MUTUAL LIABILITY INSURANCE COMPANY, Insu rer.

ARISING OUT OF E MPLOYME NT .

Whe re an em ployee w ho w as hired as a strike-bre ake r, unde r a guaran tee o r c o n

tra ct o f pro te ctio n aga in st crim in a l a cts o f third pe rso ns w ho m ay see k toco e rce a ho stile em ploye r to gran t the ir dem ands thro ugh the in tim ida tio n o f

a n d ass aults upo n his se rvan ts , is a ssaulted a nd in jured while wa lkin g a lo ngthe public highway , a ccom pan ied by the supe rin tenden t fo r the employe r,such in jury do e s n o t a rise o u t o f the employm en t ; a n d it w as sa id tha t therew as n o resem blan ce be tw ee n a n in jury u nder such circum s tan ce s an d o n e t e

su ltin g unde r a co n tra ct o f employm en t whi ch had rega rd to co n di tio ns an d

circum sta n ce s whi ch a re the n a tura l an d n o t abn o rm a l co n com itan ts o f the

wo rk to b e pe rfo rm ed , fo r example , a greem en ts fo r tran spo rta tio n when the

wo rk is a t a dista n ce . M cG u irk v. Sha ttuck, 160 Mass . 45 ; Kilduff 0 . Bo sto nE leva ted Ry . , 195 Mass . 307 ; D a n ie l D o n o va n

’

s C ase , 217 Mass . 76 . See

Ha rb ro e’

s Cas e , 223 Ma ss . 139 , 142 .

SCOPE OF E MPLOYME NT .

Un le ss the in cide n ts o f em ploym e n t b e exceptio n a l the re la tio n be tween a m as te ra n d his se rva n t is suspended when the se rvan t le ave s the pla ce o f hi s actua lemploym en t a t the clo se o f his day ’

s wo rk to go to his hom e , an d aga in be com es

a ctive whe n a fte r the in te rva l o f re st the labo re r puts him se lf in a po sitio nwhe re he c an d o the wo rk o f his emplo ym en t a t the pla ce whe re it is to b epe rfo rm ed . La ngley Bo sto n E leva ted Ry . , 223 Mass . 492 , 496 .

RE PORT OF ME MBE R OF INDUSTRIAL ACCIDE NT BOARD .

The memb er o f the Indu stria l Accide n t Bo ard appo in tedu nd er the pro visio n s o f Part III , sectio ns 5 a nd 7 , chapter 751 ,Acts o f 191 1 , a nd ame ndments thereto , having he ard the partie sin the ab o ve -named case a t the City Ha ll , Wo rce ster, Mass . , o nTu e sd ay, Feb . 10, 1920, a t 10 A .M . , reports as fo llows :Appe ara nce s : Me ssrs . Sawye r, Ha rdy, Sto ne Mo rriso n (F .

A . Lave lle , E sq . , o f co u n se l) fo r in su rer ; employee was no t

represe nted by co u n se l a t he a ring .

It was agre ed tha t this employee wo rked fo r the Ho lyo keMa chine Company o n Mav 22, 1919 ; tha t his wage s were $36a we ek ; that he w a s a ssau lted o n May 22, 1919, o n a pu blichighway in the city o f Wo rce ster ; that he su ffered a fractu reo f the lower jaw .

Qu e stio n : Whe ther o r n o t this employee rece ived a perso nalin ju ry which aro se o u t o f and in the co u rse o f his emplo ymen t .

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192

week . When he wo rked that week he wo rked as a mo u lder,b u t never fe lt tha t he co u ld d o that wo rk all right . His heada nd jaws b o the red him and he co u ld no t d o a ny heavy wo rk .

When he wo u ld lift , his jaw b o n e s wo u ld hu rt him mo re o r le ss ,a n d o n tw o o r three o cca sio n s his jaws clo sed u p tight o n him .

There was a strike o n at the Ho lyoke Ma chine Company whenhe w a s hired . He w a s gu arantee d pro te ctio n . He l ived at thebo ard ing ho u se , and continu ed to live at the boarding hou see ight o r n ine d ays after the assa u lt to o k pla ce . There were n o

po lice o fficers at the bo arding ho u se o n the n ight o f the assa u lt .He d o e s no t ju st rememb er wha t his ho u rs were , b u t thinks theywere from 7 to 5.

Cro ss-examina tio n : He is no t a memb er o f a ny o rgan izatio no f mo u ld ers . His home is at 20Mad iso n Stre e t, Ro xb u ry . Hewe n t to wo rk fo r the Ho lyo ke Ma chine Company as the re su lto f read ing an advertisemen t in the paper . The a dvertiseme ntwhich he read d id n o t re ad the same way as the o ne qu o ted byMr . Lave lle . He do e s no t remembe r how the

“ad .

”re ad , b u t

it did n o t me n tio n anything ab o u t wage s . In the ad . he re ad

pro te ctio n w a s n o t gu ara nteed . He re ad the ad . in the“B o s

to n Glo b e ” and d id no t se e same in the“ Bo sto n Herald o r

“ Bo sto n Po st .” He re ad the advertiseme nt the week o f May17, a nd as a re su lt o f re ading same he wen t to Wo rce ster . Ju stprio r to tha t time he had b e e n wo rking in a fo u ndry in Bath,Me . He w a s no t wo rking there as a strike-b reaker . He had

wo rked as a strike-b reaker b e fo re the period he wo rked fo r theHo lyoke Ma chine Company . He d id no t wo rk very o fte n as '

a

strike-breaker, pro b ab ly o n ce o r twice a ye ar . Pro bably fo u ro r five mo n ths prio r to May 22, 1919 , he wo rked in Maine asa strike-b re aker . When he wen t to Maine he wen t there withthe knowledge that there w a s tro u b le , and he we n t there mo reo r le ss a s a strike -b reaker . He we nt to Maine to wo rk in D ec em b er and left in April . He wo rked fo r the Ho lyo ke MachineCompa ny o n ce be fo re , that is , ab o u t fifte e n yea rs ago . Heco u ld no t say how lo ng he wo rked there at tha t time . He waswo rking there as a strike-b re aker at that time . On May 22,1919 , he w a s wo rking a s a mo u ld er, and go t thro u gh wo rk sometime be twe en a nd 5 P .M . He dropped his too ls , changedin to street d re ss, rang in his time and left the facto ry, go ing

3

o u t o n the stree t with the o ther m e n . While o n Thomas Stree t,a pu b lic highway in the city o f Wo rce ster, a m an assa u lted himby striking him in the fa ce . He do e s n o t rememb er whether o r

n o t there were po liceme n a t the fa cto ry that d ay . He came toWo rce ster the 2l st , w a s hired the 2l st and started to wo rk the22d . He d o e s no t kn ow who assau lted him , and co u ld no t say

whe ther o r n o t it w a s a m an who wo rked in the Ho lyoke Ma

chin e Company ’s plan t . He n ever had se en him in the Ho lyokeMachin e Company . Mr . White was wa lking a lo ng with themo n Thoma s Stre e t at the time o f the assau lt ; h e co u ld n o t say

if there were any po liceme n there . There were n o po liceme nat the b o ard ing ho u se that d ay , that he knows o f . He slepta t the b o ard ing ho u se the n ight b e fo re , a nd there we re n o

po l icemen there the n ight o f May 21 . The wo rk o f a mo u ld errequ ire s the u se o f a trowe l a nd an o ther to o l known as a sl icker .

The slicker is similar to a paper cu tter o r enve lope open er witha b lad e some time s 4 in che s a nd some time s 6 in che s lo ng, a n d

the drop from the hand le to the b lad e is some time s thre equ arters o f a n in ch . Bo th the trowe l and slicker are u sed to

smo o th o ff the sand , and are u sed a s a ba rb er ho ne s a razo r .

The o ther to o l u sed is a shove l which is u sed to sho ve l the san din to the b ox. The wo rk o f a mo u ld er co n sists o f getting thesa nd in proper fo rm to make a Ca sting . The san d is mo u ld edfrom a pa ttern , with the a id o f a trowe l , slicker, sho ve l andrammer . The rammer we ighs pro b ab ly 10 o r 15 po u nd s , thetrowe l pro b ab ly o n e-qu arter o f a po u nd , and the slicker a few

o u n ce s . There is lo ts o f lifting to d o . The sa nd that is l iftedis the we ight o f the sand which is co n ta ined o n o n e shove l ;there might b e 200 o r 300 sho ve lfu ls . He d id no t carry a ny

me ta l while he was there . On May 22 he d id no t d o a ny

casting , ju st mo u ld ing . He re tu rn ed to wo rk tw o mo n ths afterward s, as mo u lder, d o ing the same wo rk as he had b e en d o in go n May 22 . The o nly differen ce in the wo rk which he did o n

May 22 and tw o mo n ths a fter w a s the way he fe lt o n a cco u n to f the in ju ry he had rece ived . His arms were a ll right , b u t hishe ad w a s no t . He had pain s in his he ad at that time and

co u ld no t talk very we ll . He thinks the last time he saw D r .

Stimpso n w a s la st Au gu st, b ut he is no t su re o f tha t . He saw

the do cto r pro b ably six o r eight wee ks previo u s to Au gu st .

194

The acciden t o ccu rred in May . He saw D r . Wo o d , had X-raystaken a nd then saw D r . Stimpso n . D r . Stimpso n is a su rgicalden tist . He saw D r . Stimpso n three o r fo u r time s d u r ing aperio d o f a week ; that was the first week after the accid en t .Then he d id n o t se e the do cto r again u n til Au gu st . From May30, du ring Ju n e a nd Ju ly, he w a s at his home in Bo sto n ; hed id no t d o anything d u ring tha t time . He re tu rned to wo rkfo r o n e week, a nd from that time u n til Septemb er 4 he was athome . On September 4 he wen t to Fitchb u rg to wo rk a s astrike-b reaker fo r the Un io n Fo iIn dry Company . He is n o t

wo rking there at the pre sen t time . He wo rke ’d fo r the Unio nFo u ndry Compa ny fo r three mo n ths . He is feeling fairly go odnow . He ha s b een ab le to do his wo rk all right since Septemb er . His wage s are a l ittle b it b etter than $6 a d ay now .

When Mr . White hired him he said he wo u ld give him $6 ad ay .

“He says,‘I will see that yo u are take n care o f and

give yo u plen ty o f pro tectio n , a nd I wil l go home with yo u

eve n ings . Mr . White said ,“ I will gu aran tee yo u pro te c

tio n .

” “We have a b o arding ho u se fo r yo u .

” “ I ’ ll b e with

yo u . From tho se things which Mr . White said he assum edthat he gu aranteed him pro tectio n . Mr. White made a verb alstateme n t that he wo u ld gu ara ntee him pro te ctio n , and he isn o t assuming that . Tho se are the se nte nce s Mr . White spo keto him , a nd the o nly things that he said to him that he a s

sumed mean t pro tectio n ; a n d it w a s b ecau se o f tho se thingsthat he tho u ght he was gu a ra n teed pro tectio n . Mr . Whitesaid , I will gu aran tee yo u pro tectio n . Mr . White , Sr . , and

Mr . White , Jr . , were pre sen t when that was said . He ca nn o trememb er whe ther Mr . White said , I will gu ara n te e yo u prote c tio n b e fo re o r after the o ther things were said . No thingwas said ab o u t pro te ctio n in the advertiseme n t . Whe n he leftBo sto n he d id n o t come to Wo rce ster with any idea that thead . gu aran teed him pro tectio n . No thing that he kn ew o f the

matter from the ad . gu aran teed him pro tectio n .

Thoma s Walsh, called by the in su rer, te stified that he live sat 166 Main Stree t, Wo rce ster, Ma ss . He wo rks fo r the Ho lyo ke Machin e Compa ny, and ha s b e e n so emplo yed since May

21 . There w a s a strike o n at the Ho lyoke Machine Companyo n May 21 , a nd witn e ss was hired as a strike-b re aker . He w a s

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was no t gu aranteed any pro tectio n when he was hired . He doesn o t think the d ista nce from the shop to the co rn er where hesaw the po liceman o n May 21 is a ny more than 200 yards . Itis ab o u t the same distan ce a s where he , witne ss, is sitting, atthis hearing, o u t to Main Stre et .By Commissio ner : He wen t to wo rk o n May 21 , and when

he le ft the shop to go to his ro oming ho u se he was no t mo le sted .

He was hit o n the n ight o f May 22. There we re twe lve o f themto ge ther . Mr . White was walking in the street and w a s go ingto the ro oming ho u se with them . Mr . White was coming up

the street with them and he does no t know whe the r Mr . Whitewas go ing to the ro oming ho u se o r go ing upMain Street . Mr .

White had no talk with him in which he said that he wo u ld gowith him from the facto ry to the ro oming ho u se . He ha s b e e n

at the ro oming ho u se ever since May 21 . Tha t ro oming ho u seis no t ru n by the Ho lyo ke Machine Company. At that timeit w a s n o t ru n by the Ho lyo ke Machine Company, that witn e sskn ows o f . The ro om re n t was take n o u t o f the ir pay at thesho p . He paid $7 per we ek fo r b o ard a nd ro om . The b o arding ho u se was started somewhe re aro u nd the 20th o f Ju n e .

Whe n he w a s ro oming there he co u ld no t say exactly how mu chw a s ta ken o u t o f his pay . Mo n ey was take n o u t o f his payfo r the ro om while he w a s at the ro oming ho u se . On May 23he d id no t se e a ny po licemen at the b o arding ho u se . (Ob jectedto by Mr . Lave lle .) There were tw o po licemen o n the sidewa lka nd o ne in the o ffice o f the ro oming ho u se o n May 24, a nd thevrema in ed the re a b o u t half a n ho u r o r an ho u r . There were no

po licemen there o n May 25 o r any time a fter May 24 . Therewere ab o u t twe lve m e n at the b o ard ing ho u se o n May 22 .

They we re the twe lve that we n t o u t from the sho p o n May 22 .

William D . White , called by the in su rer , te stified that he issu perintenden t a nd assistan t mana ger o f the Ho lyo ke MachineCompany, and ha s he ld su ch po sitio n fo r twe nty years . Therew as a strike o n in May . They ru n a fo u ndry a nd also b e lo ngto the Na tio n a l Fo u nd ry Asso ciatio n , which is a n asso ciatio nco n tro lled en tire ly by the memb ers , and o ne o f the b en efits o fthis asso ciatio n is to fu rn ish nece ssary m en in ca se o f tro u b le .

They fu rn ish m en at a stipu lated price , a nd a stipu lated priceis give n fo r b o ard , a nd tha t is why the $7 is taken o u t e very

97

week. They o n ly take o u t the b o ard from the asso ciation m e n

u nle ss the o ther men requ e st them to . It wo u ld b e fo o lishfo r the m en to go o u t and pay $8 o r $9 when they are perfectlywilling to b o ard them if they wan t it . This b o arding ho u sew a s started exclu sive ly with the idea o f fu rn ishing b o ard fo rthe Natio na l Asso ciatio n m en b e ca u se they had tro u b le in

b o arding them in o ther ho u se s , and they were willing , a lso , thatthe re st o f the m en sho u ld b en efit by it . He wen t to 166Main Stre et himse lf and mad e arrangemen ts fo r b o arding them en . He we n t to the Capito l Lu nch with

’

the m en at n ighta nd in the mo rn ing, and at no o n had the lu n ch sen t in from the

Capito l Lu n ch . The Capito l Lu nch the n re fu sed to give them e n lu nch. Witn e ss in sisted o n the m en go ing to the Capito lLu nch a nd had a po liceman at the lu nchro om . The b o ardingho u se was no t ru n ning at the time the assau lt to o k place ; itwas ju st a ro oming hou se the n . After the regu lar wo rkerswent o n strike he applied to the Na tio nal Asso ciatio n and also

pu t an ad . in the paper ; the ad . appeared in three papers theweek o f May 17 He d id n o t gu aran tee pro tectio n to the m e n .

He sa id he wo u ld lo o k after the m e n , a nd mean t by tha t theywo u ld b e re spo n sib le if the m e n had the ir clo the s to rn , a s su cha thing had happe ned b e fo re , b u t they d id n o t expe ct a w a r.

Mr . Ro u rke d id no t come there as a wo rker su pplied by the

Na tio nal Asso cia tion . No t b e ing sen t by the a sso ciatio n he

w a s no t en titled to .the b o ard a nd ro om fu rn ished the o therm en , b u t they gave it to them to pu t them o n a n even fo o ting .

Mr . Ro u rke w a s no t re ce iving a s mu ch mo ney as the m e n se n tby the a sso ciatio n . The m e n are paid the preva iling ra te ,which was $6 at that time , a nd the n the a sso ciatio n pay thed ifference , which w a s $1 . Mr . Ro u rke d id no t ge t that extrad o llar .

’

The m en fu rn ished by the asso ciatio n rece ived $7 ad ay , o f which they paid $6 an d the a ssociatio n pa id $1 , a nd

the m en were gu aran teed b o ard o f n o t o ver $7 . Mr . Ro u rkew a s gu ara nteed this b o ard at $7. Witne ss to ld him to go to theb o ard ing ho u se , as tha t wo u ld b e the b e st place fo r him , he

tho u ght, in a large city with a strike o n . He d id no t havepo liceme n at the b o arding ho u se , the facto ry, o r o n ThomasStree t betwe e n the facto ry a nd the b o arding ho u se , fo r prote c tio n , up to the time o f the assau lt ; o nly the regu lar po lice

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o n the b eat , no n e b e ing e specially detailed o r asked fo r b yhim . He w a s walking with the m en at the time o f the assau lt .In the first pla ce , it was nece ssary tha t he b e with the m en o n

a cco u n t o f the b ills at the re stau rant , and then it was to hisin tere st that n o n e o f the u n io n picke ts speak to the m en ;

there fo re he tho u ght that his pre sence wou ld preven t the Un io npickets from talking to the m en . Witne ss w a s no t armed .

He d id n o t se e the m an who assa u lted Mr . Ro u rke , as he w a s

also attacked . He thinks the m an who assau lted Mr . Ro u rked id no t wo rk in his e stab lishment ; he will say the m an d id

n o t wo rk there . The m an w a s no t a rre sted . In the mo rn ingthe pickets were from the ir ow n m e n , b u t in the afternoo n the

m en acting a s pickets were strangers to witne ss ; he walked up

a nd d own the stree t to se e fo r himse lf . The pickets were ju ststand ing aro u nd o n the corners waiting, apparently d o ingn o thing . Whe n they came o u t o f the fa ctory the re weretwe nty-five o r thirty m e n o n the o ppo site sid e o f the stree t .Witne ss a nd m en were go ing to the b o arding ho u se . As theystarted up the street a m a n came a cro ss the stre e t and startedto ta lk with o ne o f the m en in fro n t . Witn e ss w a s in the b a cko f the line , and he we n t up and to ld the m an , whom he d id

no t kn ow , that he had no b u sine ss ta lking to his m en , a nd the

m an mad e a gra b at him . When witne ss tu rn ed aro u nd a nd

started b a ck the who le crowd came o ver and mixed right in .

This happen ed perhaps ab o u t 150 fe e t from the sho p , and whenthey go t ab o u t 500 fe e t away there seemed to b e a genera lsignal fo r a free-fo r-a ll fight . There is no thing in the Nationa lFo u ndry Asso ciatio n tha t state s “ pro tectio n . They d o no t

d e al with the m en , they d e a l with the asso ciatio n . There w a s

n o gu ara n te e that a ny o f the wo rkers wo u ld b e pro te cted ,

b e cau se whe n the strike started they were asked if theywa n ted any pro tectio n , and they, the firm , stated they weren o t ru nn ing tha t kind o f a strike . (Witn e ss sta ted , in an swerto a qu e stio n by the Commissio ner , that they d id ge t pro

te c tio n a fter this b a ttle . Ob jected to by Mr . Lave lle .) Witne sswe n t to the b o arding ho u se that n ight a nd also sent a d o cto rup there . Mr . Walsh had a had c u t and Mr . Ro u rke w a s

in j u red , altho u gh witne ss d id no t think he w a s in ju red a s

b ad ly a s he la ter pro ved to b e . D r . Wo o dward strapped up

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pe rso n s oppo sed to the b re aking o f the strike which w a s in

fo rce against the Ho lyo ke Machine Company was co ntra ctedin to a nd mad e a part o f the risks o f the employme n t o f the

claima n t . The attack u po n the employe e , and o thers , who

were b e ing e sco rted to the b o ard ing plac e b y su b scrib er’

s sup

erintend e nt, w a s a risk o f cla iman t ’s emplo yment , u nd er his

co ntract o f hire , a nd a ro se o u t o f su ch emplo ymen t in a s tru ea sense as if it had o ccu rred o n the emplo yer ’s premise s . The

promise o f the age nt fo r the su b scrib ers : “ I will gu ara n tee

yo u pro tectio n ; I ’ ll b e with yo u ,

” mad e at the time o f

the co n tract and a s an indu ceme n t to e nter in to the emplo yme n t re la tio n , brings the in ju ry o f May 22 u nd er the statu te .

The ru l e is la id d own in McNic o l’

s Case , 215 Ma ss . 497, a ndre itera ted. in Ke an ey

’

s Ca se , 232 Mass . 532, that if the in ju ryc a n b e seen to have fo llowed a s a natu ral incid e n t o f the wo rka nd to have b e e n co n templated by a reaso na b le perso n familiar with the who le situ atio n as a re su l t o f the expo su re o ccasio ned by the n a tu re o f the emplo ymen t, the n it arise s o u t o f

the employme n t . The co n tract o f emplo yme n t in this caseco ntemplated the risk o f in ju ry to which the emplo ye e wo u ldb e su b jected u po n his way home from wo rk, a n d gu ara n te edhim pro te ctio n again st su ch risk ; the d anger o f assau l t an d

co n sequ e n t in j ury by re a so n o f perso n a l a tta cks from strikerso r strike-sympathizers w a s re co gn ized a nd made a n impo rta n tpart o f the co n tra ct o f hire ; there fo re it was a natu ral incide nto f su ch wo rk a s this employe e w a s perfo rming as a strikebre aking emplo ye e to b e su b jected to a tta ck and inju ry, and .

su ch in ju ry brings the employee within the pro te ctio n o f the

statu te .

The employe e is e ntitled to compen satio n a t the rate o f $14

a we ek fo r the period from Ju ne 1 , 19 19 , to Sept . 4, 19 19 ,thirte en a nd five -seve n ths we eks , in amo u n t , $192, and to re a

sonab le med ical treatmen t .CHE STE R E . GLE ASON .

01

FIND INGS AND DE CISION OF INDUSTRIAL ACCIDE NT BOARDON RE VIEW .

I

The in su rer having filed a claim fo r review , the Indu stria lAccid e n t Bo ard he ard the partie s at Bo sto n , Ma ss . , o n Thu rsd ay , April 22, 1920.

Pre sent : Me ssrs . Kennard (chairman), Dickinso n , Parks ,Do nahu e a nd Co gswe ll .Appearance s : Ja co b Isa acs , E sq . ,

fo r emplo yee ; Me ssrs .Sawyer , Hardy, Sto n e and Mo rriso n (F . A . Lave lle , E sq .

, o f

co u n se l) fo r in su rer .

Qu e stio n : Whe ther o r no t this emplo ye e rece ived a perso na lin ju ry which aro se o u t o f and in the co u rse o f his emplo ymen t .The repo rt o f the Bo ard memb er a nd this reco rd co n tain all

the ma terial evide n ce in the ca se .

By requ e st o f co u n se l fo r the ins u rer the fo llowing excerptfrom the verb atim tran script o f the eviden ce is made part o f

the re co rdCro ss-examinatio n o f cla imant : Q . Yo u re ad an ad .

'ln the

paper? ” A .

“Ye s , sir .

”

Q .

“And the ad . read as fo llows :

‘Wa nted : A few first-cla ss iro n mo u ld e rs to wo rk o n m isc e l

laneo u s heavy wo rk. Have lab o r tro u b le . From d a te Sha llhave o pen shop and give emplo yme n t to any o n e willing to d ofa ir d ay ’s wo rk a t wage s satisfacto ry to them . Reply in perso n o r by letter to Ho lyo ke Ma chine Company .

’ Wa s tha tthe ad . that yo u re ad ?

” A .

“The ad . d idn ’t read tha t way .

”

Direct examinatio n o f Mr . White : Q .

“What me an s did yo utake fo r secu ring wo rkers after the regu lar wo rkers wen t o n

strike ? ” A .“We applied to the Natio nal Fo u nd ers ’ Asso cia

tio n , a nd also pu t an ad . in the paper, a nd this is a n ab so lu tecopy o f it .” Q .

“Tha t appeared in the‘Bo sto n

A . In thre e papers . Q .

“The we ek of May A .

“Ye s .

The Ind u stria l Accid en t Bo ard affirm a nd adopt the findings and ru l ings o f the Bo ard memb er, a nd fu rther find a nd

ru le as fo llows .

Claiman t’s employmen t was co n tin u o u s from the time hele ft the b o ard ing ho u se fu rn ished by the su b scrib ers to go to

the pla ce where his wo rk w a s actu a lly to b e pe rfo rmed u n tilhis retu rn to the same b o ard ing ho u se at n ight . “This b oa rd

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ing ho u se w a s started exclu sive ly with the id ea o f fu rn ishingb o ard fo r the Na tio nal Asso c ia tio n m en b e cau se they had

tro u b le in b o a rd ing them in o ther ho u se s , a nd they werewilling also tha t the re st o f the m e n sho u ld b en efit by it . Hewen t to 166 Main Street himse lf and mad e arrangemen ts fo rb o arding the m en . He wen t to the Capito l Lu nch with the

m en at n ight an d in the mo rning, and at no o n had the lu nchsen t in from the Capito l Lu nch .

”

(Se e te stimo ny o f William D .

White , su perinte nd en t .) Claiman t w a s gu aranteed pro te ctio n ,

notwithstanding the qu alificatio n mad e by the witne ss , White ,that he d id no t gu aran tee pro tectio n , b u t said he wo u ld

“ lo o ka fter them ,

” which, he stated , mean t that the su b scriberswo u ld be re spo n sib le “ if the m en had the ir clo the s to rn .

”

The witne ss White state s : “He was walking with the m en atthe time o f the assau lt . In the first place , it was n ece ssarythat he b e with the m e n o n acco u nt o f the b ills at the re stanran t, and then it was to his in tere st that non e o f the u nio n

picke ts speak to the m en ; there fo re he tho u ght that hispre se nce wo u ld preve n t the u nio n pickets from ta lking tothe m e n .

”

(Se e reco rd .) The assau lt o ccu rred a s a re su lt o fWhite ’s admo n itio n to o ne o f the crowd o f m en w ho afterward s assau lted claima n t a nd o thers , no t to talk to his m en .

“In the mo rn ing the picke ts we re from the ir ow n m e n , b u t in

the afterno o n the m en acting as picke ts were strangers towitn e ss ; he wa lked up and d own the stree t to se e fo r himse lf .The pickets were ju st stand ing aro u nd o n the co rners wa iting,apparen tly d o ing n o thing . Whe n they came o u t o f the facto rythere were twe n ty-five o r thirty m en o n the o ppo site side o f

the street . Witn e ss and m en were go ing to the b o ard ing ho u se .

As they started u p the stree t a m an came acro ss the stree t a ndstarted to ta lk with o ne o f the m e n in fro n t . Witne ss w a s inthe b a ck o f the line , a nd he wen t u p and to ld the m an , whomhe d id n o t kn ow, that he had n o b u sine ss ta lking to his m en ,

a nd the m a n mad e a grab at him . Whe n witne ss tu rneda ro u nd a nd started b ack the who le crowd came o ver and

mixed right in .

”

(Se e reco rd , page While the Bo ard do e sno t ru le that the gu aran tee o f pro te ctio n impo se s liab ility u po nthe in su rer so le ly b ecau se o f that gu aran te e , it is evide nce ,taken in co nn e ctio n with the fa ct that the su perintend en t was

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204

yo u pro tectio n . We have a b o ard ing hou se for yo u . Iw ill b e with yo u .

“The b o arding ho u se was n o t ru nn ing at

the time , it was ju st a ro oming ho u se .

” “ It w a s started ex

clu s ive ly with the idea o f fu rn ishing b o ard fo r the Na tio n a l Associa tio n m en b ecau se they had tro u b le in b o ard ing them in

the ir ho u se s , a nd they were willing also that the re st o f the

m e n shou ld b enefit by it .” “White wen t to 166 Ma in Stree t

himse lf and mad e arrangemen ts fo r b o ard ing the m en .

”

Ro u rke , who d id no t come as a wo rker su pplied by the Na

tio n a l Asso ciatio n ,

“w a s to ld by White to go to the boarding

ho u se , as that wo u ld b e the b e st place fo r him in a largecity with a strike o n .

The n ight o f May 21 , 1919 , Ro u rke wen t to the b o ardingho u se a nd slept there u nmo lested . On the n ext mo rn ing hewen t from the ro oming ho u se to the Company

’s fa cto ry, a nd asa mo u ld er wo rked there u ntil some time b e twee n and 5

P .M. He the n “dro pped his to o ls , changed into stree t dre ss,

rang in his time and left the facto ry, go ing o u t o n the stree twith the o ther "twe lve]m en .

” While o n Thoma s Street , a

pu b lic highway in the city o f Wo rce ste r, at a po in t above 150fe e t from the shop , a m a n assau l ted Ro u rke by striking him in

the face . White “w a s w alking with the m e n a t the time o f

the a ssau lt .He te stified that In the first place , it w a s n e ce ssary tha t he

b e with the m e n o n acco u nt o f the b ills at the re stau ra n t, a ndthe n it was to his in tere st tha t no n e o f the u n io n picke tsspe ak to the m e n ; there fo re he tho u ght tha t his pre se nce wo u ldpreve nt the u n io n picke ts from talking to the m e n .

” He had

b e fo re te stified “ that he we n t to the Capito l Lu n ch with the

m en at n ight and in the mo rning, and at n o o n had the lu n chse n t in from the Capito l Lu n ch.

”

He d e scrib ed the a ssa u l t a s fo llows : When they came o u t o f

the facto ry there were twe n ty-five o r thirty m e n o n the o pposite side o f the street ; he a nd the m en were go ing to the b o arding ho u se . As they started up the stre et a m a n came acro ssthe stre e t a nd started to talk with o n e o f the m en in fro n t .He was in the b ack o f the line , and he we nt up and to ld them a n ,

whom he d id no t kn ow , that he had n o b u sine ss ta lking to his m en . The m an made a gra b at him , and whe n he

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tu rn ed aro u nd and started b ack the who le crowd came over

a nd mixed right in . The cla iman t d id n o t know who a ssau ltedhim , and White te stified that the m an

“d id n o t wo rk in his

e stab lishme n t .”

The Indu stria l Acciden t Bo ard ru led tha t the cla imant ’ semploymen t w a s co n tinu o u s from the time he le ft his b o ard ingho u se fu rn ished b y the su b scrib er to go to the place his wo rkwas actu a lly to b e perfo rmed u ntil his re tu rn to the sameb o ard ing ho u se at n ight .” Sho rtly sta ted , it ru led that the assau lt o n the Cla iman t was mad e in the co u rse o f his emplo yme n t .The Ind u strial Accid en t Bo ard stated that it d id no t ru letha t the gu aran tee o f pro tectio n impo se s liab ility u po n the in

su rer so le ly b e cau se o f that gu ara nte e , b u t it d id ru le tha t “ itis evid e nce , take n in co nnectio n with the fact that the superin

te nd e n t w a s actu ally e sco rting the employee a nd o thers fromthe ir place o f emplo yment to the b o ard ing ho u se fu rn ished b ythe emplo yer, and the add itio n a l fact tha t the assau lt o ccu rreda s a d ire ct re su lt o f the su perin tende n t ’s talk with o n e o f the

gro u p o f picke ts who committed the assau lt , tha t the employme n t was co n tinu o u s , a nd tha t the re su lting in ju ry aro se o u t

of and in the co u rse o f cla iman t ’ s employment .”

We canno t agre e with the re aso n ing o r with the re su l t ar

rived a t by the Bo ard . Unle ss the inciden ts o f emplo yme ntb e exceptio n a l the re latio n b etwe e n the master a nd his servan tis su spe nded whe n the serva n t leave s the place o f his actu a lemployme n t at the clo se o f his d ay ’ s wo rk to go to his home ,and again b ecome s active whe n after the in terval o f re st thelab o rer pI

'

Its himse lf in a po sitio n where he c a n d o the wo rko f his employme n t at the place where it is to b e perfo rmed .

Langley v. Bo sto n E levated Railro ad , 223 Mass . 492, 496 .

In the case at b ar the d ay ’s wo rk o f the claimant came toan e nd whe n he d ropped his to o ls , rang in his time , le ft theplace o f his emplo ymen t and entered u po n the pu b l ic highway .

While no t c o nclu sive in the d e termin a tio n o f the incidents ofthe employment , it is wo rthy o f co ns id era tio n that thereafte rthe employer u nder the co ntra ct o f employme nt had no lega lright to command the service s o f the claimant , and he w a s

u nder n o d u ty o f o be d ie nce there to .

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As b earing u po n the qu e stio n o f the incid en ts o f the emplo yme nt, w e c an perce ive no re semb lance b etween a co n tra ct o f

pro tectio n again st criminal acts o f third perso ns who may seekto co e rce a ho stile employer to gra n t the ir demands thro u ghthe intimid a tio n o f a nd a ssau lts u po n his servan ts , and a c o n

tract o f emplo ymen t which ha s regard to co nd itio n s a nd c ir

c u m sta n c es which a re the n a tu ral and no t abn o rma l c o n c omitants o f the wo rk to b e perfo rmed u nder the co ntract ; fo rexample , agre eme n ts fo r tran spo rtatio n whe n the place o f workis at a d ista n ce . McGu irk v. Shattu ck, 160 Ma ss . 45 ; Kildu ffv. Bo sto n E levated Railway, 195 Mass . 307 Danie l Dono van ’sCase , 217 Mass . 76 . Se e Harb ro e

’

s Case , 223 Mass . 139 , 142 .

Witho u t d ecisio n w e assume the claima nt u nder the terms o fthe employme n t had a co n tra ct to which he co u ld lo o k fo rcompen satio n if harm sho u ld come to him b e cau se the c om

pany had fa iled to keep its agreemen t to pro vid e pro te ctio n ,

and w e fu rther assume that the agreement co vered all the timehe remained a n employe e o f the compa ny, whe ther the harmand in ju ry re su l ted to him d u ring his ho u rs o f employme nt o rin the intervals o f time which are allo tted to re st and recre atio n .

B u t w e d o n o t think the e ffect o f the co n tra ct w a s to make theemplo yme n t o f the cla ima n t co n tinu o u s , o r tha t it made him ,

as the re su lt o f the co n tra ct , a servan t o f the company afterhis day ’s wo rk w a s d o ne and he had le ft the place o f his em

plo yme nt to go home . Po u lto n v. Ke lsall 2 K . B . 131 .

It re su lts tha t the d e cre e mu st b e reversed a nd a d e cre een tered fo r the in su re r.

D ec ree a c c ordingly .

Fil ed Jan . 20, 1920.

CASE N o . 7336 . (238 Ma ss .

MRS. E THE L BE LL, DE PE NDE NT WIDOW OF GROVE R C . BE LL

(DE CE ASE D), E mployee .

COMMONWE ALTH CHE MICAL COMPANY, E mployer.

MASSACHUSE TTS BOND ING AND INSURANCE COMPANY, Ins u rer.

ARISING OUT OF E MPLOYME NT .

Where the re w as a driveway le ading from the em ployer ’s prem ise s pa ra lle l withthe ra ilro ad tra cks upo n which the em ployee m e t his dea th to a ga te Oppo sitethe de ad end o f a stree t , whe re planks were pla ced fo r the passage o f te am s

over the ra ilro ad tra cks , a n d a lthough when de cede n t en tered the em plo y

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208

Repo rt of the E videnc e .

Al l the material evid e nce is repo rted he rewith .

The fo llowing evidence was rece ived at the he aring he ldTu e sd ay, Oct . 22, 1918:Ru fu s M . Ro b in son o f 48 Sta te Stree t, E ast Orange , N . J . ,

called by the claimant , te stified that he is now a su lphu r a cidmaker fo r Bu tterwo rth Ju dso n , who se plan t is in Newark,N . J b u t that formerly he had been in the emplo y of theCommo nwealth Chemical Company, in the capacity o f su perintenden t a nd ac id maker, who se plant is loc ated ne ar the

We llingto n statio n'

o f the Bo sto n 85 Ma ine Railroad in Massac hu se tts . Witne ss stated tha t du r ing the time which he wasemployed by the Chemical Company there was no o ne higher inra nk than he , and that after the comple tio n o f the pla nt hehad ge neral charge there o f . He e ntered the emplo y o f the

Commo nwe a lth Chemica l Compa ny in Ju ly, 19 16, and his em

plo ymen t co n tinu ed u n til Oct . 1 , 1917 . The employee in thiscase , Gro ver C . Be ll , whom he had known all his life , su sta ineda n a ccid ent , as he reca lls , o n Ju n e 8, 1917 , while in the emplo yo f the Commo nwealth Chemica l Compa ny . He , witne ss , wasn o t an eyewitn e ss to the a ccide nt . Mr . Be ll , the d ece ased em

plo yee , was a“ chamb e r m a n a nd watched the acid chamb ers .

(At this po int it was agreed tha t Gro ver C . Be ll w a s a n em

ploye e o f the Commo nwe alth Chemical Company, and thatthere w a s n o qu e stio n o f claim o r no tice .) He is acqu ain tedwith Mrs . E the l Be ll , wid ow o f Grove r C . Be ll , who sign ed theclaim fo r compen satio n . The employe e w a s married ab o u t n in emo n ths b e fo re his de ath . Mr . Be ll came to live in We llingto n ,

Mass .,his wife fo llowing some six weeks later , where they lived

to gether ne ar the plan t o f the Commo nwealth Chemical Compa ny up to the time o f the a ccid e n t . There were n o children ,

and , as far a s he kn ows , Mr . Be ll su ppo rted his wife at a ll

time s . Mrs . Be ll had no o ther means o f su ppo rt which he

(witn e ss) kn ew o f . As he reca lls , the employe e came to We ll

ingto n o n Feb ru ary 24 and wen t to wo rk the fo llowing d ay or

n ight fo r the Chemical Compa ny . The pla n (shown him by

co u n se l fo r claimant and su b seq u en tly marked E xhib it D ”

) isco rrect in showing the b u ild ing o f the Commo nwealth Chemical

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Compa ny lying near the no rth b o u ndary o f the compa ny ’s

premise s . He reca lled the land o f the Champlin Ho b b s B oxCompany a nd stated that they were b u ild ing o n the marshab ove the Chemica l Company, b u t d id n o t know whe ther the irland jo ined tha t o f the Chemical Compa ny: The character o f

the land b e twe en the plan t o f the Chemical Compa ny a nd the

parkway w a s marshy an d covered with grass . Whe n askedwhether o r no t there w a s a path o r me a n s o f cro ssing the

marsh, witne ss stated that there w a s a pa th which co u ld hetrave led at low tid e , coming o u t o n the parkway n e ar the riverb ridge , near the po in t where the parkway strike s the river .

This path co u ld b e u sed o n ly whe n the tide w a s low . Afterthe tide started coming in the pa th w a s o nly acce ssib le fo r tw oa nd a ha lf o r thre e ho u rs , the witn e ss sta ting tha t there wastw o a nd a half to thre e ho u rs ’ le eway b etwe e n tid e s . Acce ssfrom the We llington sid e to the pla n t w a s thro u gh gate s o r go ingacro ss the track . (At this po in t a co py o f a certificate o f titlew a s o ffered in evid e nce by co u n se l fo r the wid ow a nd was adm itted fo r a ny pu rpo se fo r which it might b e compe ten t and

w a s marked “E xhib it A .

” A certified copy o f a d e ed fromArthu r W. We ll ingto n to Willard We lsh was also intro du cedin evid e nce , a nd marked

“E xhib it B ,

”to show the right o f way

that is re ferred to in the certifica te o f title .) Acro ss the fo o to f Fifth Stre et , where it come s d own to the ed ge o f the railro ad ,

there is a b o ard fen ce . This fen ce extend s so u therly from FifthStree t to within a few fee t o f We llingto n Statio n . There is agate o n b o th sid e s o f the track . Th e planks are so that teamsc a n go a cro ss . Du ring the perio d o f time tha t Mr . B e ll wo rkedfo r the Chemical Company the gate s were kept lo cked part o fthe time . Coming from the We llingto n sid e to the Chemica lCompa ny’s plan t the tid e d id n o t interfere , that is, u nle ss yo ucame lower d own toward the parkway . In go ing from hometo the plan t this m a n wo u ld o rd ina rily walk d own Fifth Stre e tacro ss the tra cks at the statio n a nd d own the platfo rm to the

e nd and then over in to the ro adway a nd then aro u nd . Q .

“An d when this m an came from home and a rrived a t the d ead

end o f Fifth Stree t, he then had to cro ss the railro ad tracksand go d own this platfo rm a nd acro ss to the are a marked ‘

Righto f Way

’

? (re ferring to the plan su b sequ en tly marked E x

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b ib it D A . He o rd in arily wen t that way ; if the statio nm a n had b een there he co u ld have opened the gate s an d walkedthe ro adway .

”

(At this po in t a plan drawn b y the witne ss wasintro d u ced in evide nce a nd marked “

E xhib it The acciden t happe n ed o n Satu rd ay mo rn ing ; the emplo ye e was wo rking nights a nd had fini shed his n ight ’s wo rk and ha d startedtoward home , taking the d ire ct ro u te to his ho u se , as he livedin the first ho u se o n the right-hand sid e as o ne wen t up ab o vethe statio n . The ro adway, the so-called “

right o f w ay”

o verthro u gh the Champl in 85 Ho bb s B ox Company, led to a gatewhere he co u ld have go tte n o u t , b u t the gate is kept lo ckedexcept when the sta tio n m an o pens it fo r passe ngers . Therewas n o general practice with re feren ce to the o pen ing a nd clo sing o f the gate d u ring the time that Mr . Bell wo rked fo r thecompany, except tha t, when the statio n a gent was no t at theticke t o ffice, o ne had to go o ver to his ho u se to get him to openthe gate fo r a team to go o ver . The gate w as lo cked exc epto n the occasio n when the statio n agen t open ed it , altho u gh attime s whe n the statio n age nt w a s in the statio n all the timehe wo u ld ju st clo se the gate o n the ho o k . The gen eral practice ,however, was to lock the ga te . He d id no t know how the gatew a s o n this particu lar o cca sion . The general practice fo r o ne

go ing from the plant to Fifth Street was to walk d own righta cro ss from the tracks at the statio n and down the platfo rmto the end o f the platfo rm a nd over the ro adway. He (witness)accompan ied the emplo ye e to the plan t the first d ay he we n tthere , a nd he to o k the emplo ye e o ver the ro u te which he ha sshown in his d iagram o r plan , as that w as the cu stomary way .

The emplo yee to o k the same ro u te in go ing b ack to his ho u se .

The employee u sed this ro u te twice a d ay , n ame ly, in go ing toa nd from wo rk . He (witne ss) no ticed the emplo ye e go ing homemany time s . There were

‘a few emplo yee s who cro ssed the

tra cks lower d own from the statio n go ing toward s Fifth Stre e t .Qu e stio n ed b y the Commissio n er, witne ss te stifie d that he

was n o t a witne ss to the accid en t and that he d id no t se e the

emplo ye e u ntil he had b ee n take n to the ho spital .Cro ss-examin ed (by co u n se l fo r in su rer), witn e ss testified

that his ho u rs o f emplo ymen t at the time o f the acciden t were7 AM . to 5 RM. The emplo yee ’s ho u rs o f employment were

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the acciden t he had left wo rk with the in ten tion of go ing homeand retu rn ing to work at 7 P .M. o f the same day .

The in su rer’ s co n ten tio n is that this in ju ry was no t su s

ta in ed in the co u rse o f and did n o t arise o u t of the employmen t .”

At the hearing held Mo nday, May 12, 1919, the plan whichhad been shown

'

to the witn e ss Ro bin so n at the fo rmer hearing, and which he had pro n o u nced correct in showing thebu ild ing of the Commonwealth Chemical Company lying n earthe north bo u ndary,

” was in tro du ced in evid ence and marked“E xhibit D .

” It w a s agreed that the several exhib its mightb e referred to a t any hearing in the case b e fore the reviewing board , be fore the Su perio r Co u rt o r b e fore the Su premeJu dicial Co u rt .The fo llowing statemen t was made by co u n se l fo r the dependen t at the hearing he ld o n Monday, May 12, 1919 , and

it was agreed by cou n se l fo r bo th partie s that the facts em

b odied in this statement might b e co n sidered as in evid encewitho u t fu rthe r pro of :

“We agree, with respect to this sketch marked ‘E xhib it C ,

’

which was pu t in evidence at the fo rm er hearing, that thed eceased at the tim e of the in ju ry (which w a s sho rtly after7 A .M. on Ju n e 8, 1917) was pro ceeding from the o ffice o f the

Commonwealth Chem ical Company to his home a long the

ro u te ind icated by the do tted line ; that he was stru ck by atrain operated by the rece ive r o f the Bo sto n 8: Main e Railro adwhile cro ssing the track at the po in t ma rked A ; and that hedied Ju n e 10, 1917 , in consequ en ce o f the in ju ry so rece ived .

We agree that tha t w a s the ro u te he always fo llowed ; that thatwas the rou te by which he wen t on the first occasion when hewen t to wo rk fo r the Commo nwealth Chemical Company inFeb ru ary, 1917 ; a nd that he always wen t to and from wo rk bythat rou te up to the time o f the in ju ry .

“ If material, it is fu rther agreed that he was living a t the

time of the in ju ry, and , in fact, du ring the en tire period ofhis employmen t, in a ho u se on Fifth Stree t, in We llingto nVillage, a sho rt d istan ce w e st o f Wellingto n Statio n , the ap

pro ximate po sitio n o f the ho u se being shown o n‘E xhib it C .

’

“The on ly right o f way existing at the time of the acciden t

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in qu estio n , by virtu e o f any express gran t, re servation , o r

agreement, acro ss the tracks o f the Boston 85 Main e Railroadat any po in t ad jacen t to the prem ises o f the Comm o nwealthChem ical Company, o r to the right o f way appu rtenant there to,was a right o f way to cross with team s o n ly at the po in t wherethe gate s were e stab lished . The station agen t had the key, a ndhis in stru ctio n s were to keep the gate s lo cked at all time sexcept when asked to o pen them fo r the u se o f team s . He w a so n du ty daily from 6 A .M. u n til P .M. , and , so far a s he

o b served d u ring the ye ar preceding the accident, the gate swere n ever open ed except fo r the passage o f team s.Perso n s cro ssing the tracks o n fo o t very se ld om wen t

throu gh the gate s . From the tim e the b u ild ing o f the Com

m o nw ea lth Chemical Company’ s pla n t was begu n (ab o u t a

year b e fo re the in ju ry o ccu rred) up to the tim e o f the in ju rypractically all perso n s (whe ther employee s o r others) havingo ccasio n to go on fo o t to o r from the Comm o nwealth Chem icalCompany ’ s premise s crossed the track su b stan tia lly by the

ro u te which the employee was fo llowing a t the time o f the

in ju ry. This practice o f cro ssing the tra ck was we ll kn own to

the Bo sto n Main e Railroad, b u t n o o b jectio n w as ever mad eand n o in stru ctio n s with re spect to the cro ssing o f the trackby pede strian s were ever given to the statio n agen t .

Fo r the pu rpo se s o f the pre sen t claim fo r compen satio n , itis agreed tha t the general pu b lic had n o right to cro ss thera ilro ad track at the place where the

.

acciden t in qu e stio nhappen ed , o r a t any place adjacent to the premise s o f the

employer.

“On e key o f the ga te which is ind icated o n pla n marked

‘E xhib it C w a s de livered at some time b e fo re the acciden t

(ju st how lo ng b efo re b e ing u n certain) by the statio n agen t tothe su perin tendent o f the Commo nwealth Chem ical Company.

“ It was physically po ssib le to go from the b u ildings of theCommonwea lth Chemical Company to the Revere Beach Pa rkway in the m ann er here inafter sta ted . By walking alo ng theside o f the track to the ab u tmen t o f the b ridge , whereby theparkway cro sse s the railro ad , and climb ing u p the ab u tm en t,it w a s po ssib le , b u t very d ifi c u lt , to reach the parkw ay. Itwas also po ssib le to go across the premise s o f the Commo n

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w ealth Chem ica l Company in a so u theasterly d irec tio n so asto reach the parkw ay at a po in t a sho rt distance we st o f thebridge over the Malden River. The land which it is necessaryto cro ss in o rd er to reach the parkway in this mann er is saltmarsh a nd very ro u gh, so tha t it was, du ring the period o f

Gro ver C . Be ll ’ s employmen t by the Commo nw ealth ChemicalCompa ny, exceedingly difficu lt a nd a t all tim e s in co nven ien tto cro ss it .

“No ro ad o r path ha s b ee n con stru cted across the prem ise s

o f the Commonwealth Chem ical Company by the ro u te ju stde scrib ed , and n o o ther path o r ro ad leading from the b u ildings o f the Commo nwea lth Chemica l Company to a ny o f the

b o u nd arie s o f its premise s had b een co n stru cted at the tim e o f

the acciden t except a driveway lead ing from the b u ild ings tothe gate s acro ss the track.

“The time fo r the last high tide prio r to the time o f the

acciden t was A .M.

Prior to the co n stru ctio n o f the Revere Beach Parkw ay in1900, o r thereab o u ts, the land n ow own ed by the Commo nwe alth Chemica l Company d id n o t ab u t u po n any highway.

“Du ring the perio d o f Grover C . Be ll’ s employm en t thethre e lo ts n o rth o f the Commonwealth Chemical Company’spremise s (which lo ts a re l n ow o ccu pied by the Champlin 85

Ho b b s B ox Compa ny’ s b u ild ings) were vacan t, the se b u ildingsno t b e ing erected u n til later. The title to the CommonwealthChemical Company’ s premise s, d u ring the said period o f em

ploymen t, was in Henry C . Sawyer, E sq . , who he ld the titlefo r the b en efit o f the company . Mr. Sawyer’ s title w a s

registered by the Land Co u rt, a nd the certifica te o f title (aco py whereo f was pu t in evid en ce at the fo rmer hearing and

ma rked ‘E xhib it A ’

) w a s issu ed to him May 22, 1917 . Atthe time o f the acciden t in qu e stion the title to the several lo tsin the vicin ity shown o n the plan marked ‘

E xhib it D ’

w a s in

the re spective partie s who se name s appear on this plan . The

appro ximate place where the accid en t o ccu rred is marked X’

o n this plan .

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The te stimony fu rther showed that the employee s o f the sa idcompany w ho lived in the directio n Be ll re sid ed to ok the samero u te tha t he was taking the d ay he first wen t to the ChemicalCompany’ s wo rks and thereafter u sed u n til the d ay o f his

in ju ry .

Be ll co u ld have taken a path a lo ng the railroad tracks o n theside toward the Chemical Compa ny ’ s wo rks in a rou te leadingdirectly away from his home , and fu rther, by climb ing u p the

ab u tmen t o f the b ridge , reach the Revere Beach Parkway and

then go n e at right angles o n the b ridge o ver the tracks , and

then alo ng the o ther sid e o f the railro ad tracks toward the

directio n o f his home u n til he came to the dead end o f FifthStreet and thereby reach his home . At time s it w a s physicallypo ssib le to have cro ssed the stre tch o f marshland adjacen t tothe Chemical Company’ s plan t and thereby reach the RevereBeach Parkway . B o th o f the se ro u te s, I find , were imprac ticab le and dangero u s .I ru le and find , from a ll the evid en ce , that it w a s n ece ssary

fo r the d eced en t to have u sed the ro u te he was taking the d ayhe was in ju red , and fu rther, that it w a s a n ece ssa ry mean s o facce ss to the premise s o f the employer. Fu rther, a co n d itio no f his employmen t requ ired the u se o f the way he w a s takingn o t o n ly the d ay he w a s in ju red , b u t from the very b egin n ingo f his employmen t co n tinu o u sly thro u gh to the d a te o f his

in ju ry ; that altho u gh there were o ther mean s o f acce ss re

ferred to hereb efo re , the se were impra cticab le , d a ngero u s and

sometime s impo ssib le .

It is commo n ly kn own that great indu stries are n ow lo catedand are co n tin u ally b e ing lo cated o n marshe s a nd u pland sadjacen t to harb o rs, rivers o r ra ilro ads, a nd that the ind u stria lstru ctu re s raised in the se in stan ce s are gen erally co n stru cted o n

piers admitting o f the d ispo sal o f re fu se and o ffal from ind u stryab o u t said stru ctu re s, thereby making a fill which permits o f

the fu rther co n stru ctio n o f ways o r approache s to the situ s o fsu ch ind u strial b u ild ings . It wo u ld b e a hard ship to say thatwo rkmen employed in place s so lo cated (a s w a s the deceden tin this case) wo u ld b e den ied compen sa tio n .

I fu rther ru le and fin d , u po n all the evid en ce , that this em

plo ye e’

s in ju ry a nd death aro se o u t o f a nd in the co u rse o f his

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employment, and therefo re , the claiman t wid ow , E the l Be ll ,who was living with him at the time o f his d eath, was c o nc lu sive ly pre sumed to b e to ta lly dependen t u po n him fo r

su ppo rt, and is entitled to a weekly compen sa tio n o f $10 aweek fo r a perio d o f fo u r hu ndred we eks, the amo u n t no t to

exceed John Mo ran ’ s Case , 234 Mass . 566 (d ecisionfiled Jan . 9 , Kean ey

’

s Ca se , 232 Mass . 532 ; Web b er v.

Wa in sb o ro u gh Paper CO ., Ltd . ,

1915, A . C . 51 , 7 B . W . C . 795 ;

Ju d so n Man u fa ctu ring Company et a l . 0 . Indu stria l Acciden tCommissio n et a l . , 184 Pac . Repo rter 1 (decisio n filed Octo b er,

JOHN H . COGSWE LL .

FIND INGS AND DE CISION OF THE INDUSTRIAL ACCIDE NT BOARDON RE VIE W .

The in su rer having filed a claim fo r review , the Indu stria l

Accid en t Bo ard hea rd the pa rtie s a t Bo sto n , Mass . , o n Thu rsday , April 29, 1920.

Pre sen t : Me ssrs . Kennard (chairman), Dickin so n , Don ahu e ,Parks and Glea so n .

Appearance s : Ro b ert T . Ga llagher, E sq . , fo r in su rer ; Me ssrs .Sto rey, Tho rnd ike , Palmer 85 Dodge (Ha ro ld S . Davis, E sq . ,

and Hawley K . Rising, E sq . , o f co u n se l) fo r d epend en t widow .

Qu e stio n : Whe ther o r n o t the employee ’s d e a th was d u e toa perso n a l in ju ry arising o u t o f and in the co u rse of his em

ploymen t .The repo rt Of the Bo a rd memb er co n tain s all the m ateria l

evid en ce in the case .

The Ind u stria l Accid en t Bo ard , o n review, affirm and ado ptthe findings and ru ling o f the Bo ard memb er, and find a nd

ru le fu rther, u po n all the evid en ce , as fo llowsDeced en t’ s employmen t re latio n , u nder his co n tra ct o f hire

with the su b scrib ers, b ega n at the time he left the pu b lic highway an d en tered the railro ad right o f way ab u tting the premise sOf said su b scrib ers as a licen se e by reaso n Of his employmen tby the Commo nwealth Chemical Company, o n his way to wo rk,and d id n o t terminate u n til he le ft the railro ad tracks to en terthe pu b lic highway u po n his retu rn home from wo rk .

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There is n o qu e stio n in this case as to the employe e ’ s right,as o ne o f the wo rkmen employed by the su b scrib ers , to en terand cro ss the railro ad a t the place where the in ju ry o ccu rred .

From the time the erectio n Of the plan t Of the Commo nwealthChemical Company w a s commen ced , ab o u t a year prio r to thed ate Of the in ju ry , employees o f the Chemica l Company crossedthe ra ilro ad by the ro u te which the employee w as fo llowing at

the tim e Of the fatality, and this practice was we ll known b o thto the su bscrib ers and to the Bo ston 85 Main e Railro ad , n o

Ob jectio n s there to having b een mad e by e ither the Chem icalCompany o r the railro ad, and no in stru ctio n s w ith re spect tocrossing the track having b e en given by the ra ilro ad companyto the sta tio n agen t . The first time that deced ent wen t towo rk fo r the Commo nwea lth Chemical Company, the superin

tenden t to ok him to the plan t by the ro u te which he fo llowedo n the d ay Of his fatal in ju ry ; the employee u sed this rou tetwice a day in go ing to and from wo rk ; and the su perin tend en tfo r the su b scrib ers kn ew that he had u sed this ro u te , by Ob

serva tio n , o n ma ny o ccasio n s . SO far a s the reco rd shows, n o

su gge stio n w a s ever mad e that the employe e sho u ld u se any

o ther ro u te in go ing to a nd from wo rk, n o r is there any evi

d en ce tha t he had ever b e en in fo rmed tha t the land o f his em

ployers extend ed to the parkw ay . While it w a s physica llypo ssib le ” to go from the b u ild ings o f the Comm o nwealthChem ical Company to the Revere Beach Parkway, there w as

n o d efin ite ro u te o r w ay o ver which it is shown any employeeso r o thers le ft su ch premise s over this “ physically po ssib le ”

w ay . It w a s po ss ib le ,” also , to go acro ss the premise s Of the

Chemical Company by w ay o f a sa lt marsh tha t w a s exceedingly d ifficu lt to cro ss, b u t there w a s n o ro u te o r way o ver itby which it is shown that any employe e s o r o thers le ft thepremise s o f the su b scrib ers . The

“ physica lly po ssib le ” wayto re ach the pa rkw ay is referred to as a “ very d ifficu lt w ay

to reach the parkway . As a matter Of fa ct, b o th ways weren o t o n ly exceed ingly d ifficu lt ro u te s, b u t a lso impracticab leways o f ge tting to o r leaving the prem ise s Of the su b scrib ers ;and the po ssib le w ay acro ss the marsh w a s at time s impo ssib leo f a cce ss by reaso n Of the tid e s . SO far as it appears from the

reco rd , n o su gge stio n w a s ever m ad e by any perso n to the em

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220

In Fox a . Rees Kirby, Ltd ., C . A . 1916, 10 B . W. C . C .

459 , a mu n itio n wo rks w a s e stab lished in a lo ne ly spot by theseasho re . There was n o ro ad to it in the pro per sen se, b u t therewere three po ssib le ways o f getting there from the n eare sttown , o n e Of which w as a lo ng way ro u nd a nd invo lved a tiresome walk thro u gh so ft san d , and a seco nd involved tre spassingwhich was prohib ited . The third and o n ly co nven ien t way, theo ne reco gn iz ed by the employers and u sed by the

' vast ma

jo rity o f the employee s, was to rid e o r w alk alo ng the privaterailway lead ing to the wo rks . It was he ld , reve rsing the co u n tyco u rt ju dge , that the accid en t arose o u t o f and in the cou rse Ofthe employm en t .

Wa rringto n , L.J., sa id

As to the u se o f the ra ilw ay,as I think it w as the recognized w ay o f

appro a ching the pla c e where the m an was working, I c ann o t agree tha t intaking that w ay he ad d ed a peril to his employm ent . I think he only incu rred a peril which w as on e which w as proper for him to in c u r . Ithink the a c c id ent did happen , as it happened in tha t c ase (Gane No rto n

Hill Co lliery CO . 2 K . B . 539, 2 B . W. C . C . in the c o u rse o f

his employm en t, b e c au se the employm ent invo lved the reaso na b le m eanswhich the appli can t, w ith the san c tion o f his employers , ad opted Of gettingfrom the bo u nd ary o f tha t whi ch m u st in su b stan c e be trea ted as the em

ployer’s land to the a c tu a l spo t on that land where he u sed to do his w o rk .

I think, therefo re , tha t the a c c id ent in this case aro se o u t o f and in the

c o u rse o f his employm ent.

Se e also McNic o l’

s Case, 215 Mass . 497 Su nd ine’

s Case ,218 Mass . 1 ; Vo n E tte

’

s Case , 223 Ma ss . 56 ; O’

B rien’

s Case ,228 Mass . 44 ; Ke an ey

’

s Case , 232 Mass . 532 ; Mo ran ’ s Case ,234 Mass . 566 (d ecid ed Jan . 9 , Ha llett’ s Ca se , 232 Mass .49 ; Wales v. Lampto n He tto n Co llierie s , Ltd . C . A .

,

10 B . W . C . C . 527, 86 L . J . (K . B .) 1346 .

The employee ’s fata l in ju ry having o ccu rred a t a time whenhe w a s in a p o sitio n Of peril in cu rred so le ly by reaso n o f a nd

du ring the co n tin u ance Of his employmen t rela tio n , and whilehe was perfo rming the n ece ssary act Of leaving his place Of em

ploymen t by the ro u te shown him by the su perin tend en t fo rthe su b scrib ers, sa id fatal in ju ry aro se o u t o f an d in the co u rseOf his employmen t, and employe e ’s wid ow is en titled to c om

221

pen satio n as awarded by the Bo ard memb er, at the rate o f $10

a week fo r a period Of fo u r hu ndred weeks from Ju n e 8, 1917,su b ject to the pro vision s of the act.

CHE STE R E . GLE ASON .

DAVID T . DICKINSON .

JOSE PH A . PARKS .

DISSE NTING OPINION .

The u ndersign ed d issen t from the find ing o f the majo rity o f

the Bo ard that this employee w as in the co u rse o f his employmen t when he su stain ed his fa tal in ju rie s The railro ad trackswhere the employe e was stru ck an d killed fo rmed n o part Of

his employer’s premise s, n o r were they in any way co n n ectedtherewith o r u nd er the ir co n tro l . The employe e had fin ishedhis wo rk an d w a s o ff the premise s where he was employed ;there was n o eviden ce that he w a s paid fo r the time taken ingo ing to and from w o rk. When the employee ’ s day ’ s wo rkw a s end ed he was fre e to d o as he pleased . The case is n o t asstro ng a o n e fo r the employee as was Fum ic ie llo ’

s Ca se , 219Mass . 488. In o u r o pin io n there is a vast differen ce b e tweena risk o f the employmen t and the risks inciden t to ge tting toand leaving the place o f employmen t . This was a risk o f the

latter kind . We b e lieve that the claim sho u ld b e dismissed .

FRANK J . DONAHUE .

WM. W. KE NNARD .

DE CRE E OF SUPREME JUDICIAL COURT ON APPE AL.

DE COURCY, J . The plan t o f the Commo nwe a lth ChemicalCompany, the employer, was erected near the n o rtherly end o f

a la rge tract o f marshlan d , lying b etween the Mald en Rive r o nthe east , and the Bo sto n Main e Railro ad o n the west, 9. po rtio n Of the so u therly b ou nd to u ching the Revere Beach Parkway. Be tween the parkw ay a nd the b u ilding was salt marsh.

Bell lived o n the opposite side o f the tracks from the ChemicalCompany ’s plan t, o n Fifth Street, in Wellin gton Village. The

B o ard memb er, who heard the case, fo u nd :“Be ll co u ld have

taken a path alo ng the railro ad tracks o n the side toward the

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Chemical Company’s works in a ro u te leading directly awayfrom his hom e , and fu rther, by clim b ing u p the ab u tm en t Ofthe bridge reach the Revere Beach Parkw ay and then go ne a t

right angle s o n the bridge over the tracks, and then alo ng theo ther side Of the railro ad tracks toward the directio n o f his

home u n til he came to the dead end o f Fifth Stree t a nd therebyrea ch his home . At times it w a s physically po ssib le to havecrossed the stretch of marshland ad jacent to the Chem icalCompany’s plan t and thereby reach the Revere Beach Parkway . Bo th of these ro u tes , I find , were impracticab le a nd

dangero u s . There w a s a driveway from the n o rthwe sterlyco rn er Of the employer’ s premise s alo ng a right of w ay paralle lwith the track, and leading to a gate at the side Of the railro adlo catio n a sho rt distance north o f Wellington Sta tio n and op

po site the dead end o f Fifth Street. At this place there wereplanks b e twee n the rails fo r the passage o f teams o ver the

railro ad , and gates o n b o th side s o f the tracks which werekept lo cked part o f the time .

When Be ll en tered the employ o f the Chemical Compa ny inFebru ary, 1917, the su perin tend en t accompan ied him , a nd to okhim o ver a ro u te from the statio n platfo rm , near Fifth Stre e t,acro ss the inb o u nd and o u tb o u nd passenger tracks, to a platfo rm , then to the so u therly end Of that platfo rm, a nd a crossthe o u tb o u nd fre ight track, to the ab ove-de scrib ed way at then o rthwe st corner o f the employer’ s premise s . “

The te stimonyfu rther showed that the employees Of the said company who

lived in the d irectio n Be ll re sided took the same ro u te that hew as taking the day he first wen t to the Chem ica l Company ’swo rks a nd thereafter u sed u n til the day Of his in ju ry .

” Be llwas fo llowing it o n his way home from work o n the mo rn ingOf Ju n e 8, 1917, when he was stru ck by a train and fatallyin ju red . The Indu strial Acciden t Bo ard o n review, mad e the add itio n a l find ings, that the practice o f u sing this ro u te was we llkn own b o th to the su b scrib ers and to the Bosto n Main eRa ilro ad , n o Objection s thereto having been mad e by e itherthe Chemical Company o r the railro ad ; the employee u sedthis ro u te twice a day in go ing to and from wo rk ; and the

su perin tenden t fo r the su b scrib ers knew that he had u sed thisro u te , by Ob servatio n , o n many o ccasio n s .”

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su b scribe rs as a licen see by reaso n Of his emplo ymen t by the

Comm o nwealth Chem ical Company, o n his way to wo rk, and

did n o t terminate u n til he left the railro ad tracks to en ter thepu b lic highway u po n his re tu rn home from Work . SO far as

this is a ru ling o f law , it is apparen tly b ased u po n decisionsu nder the E nglish act, which hold that emplo ymen t co n tin u esu n til the employee reaches a pu b lic road . Longhu rst v. JohnStewart Son , Ltd . 2 K. B . 803 . Ou r sta tu te neverhas b een so co n stru ed . So far as the sta temen t o f the Boardis a finding Of fact, it is nOt su pported by the evidence. In

cro ssing the railroad tracks the employee was a mere licen se e,if n o t a trespasser. Lyn ch 0. Bo sto n Maine Railroad, 226Mass . 522. He may have b een criminally liab le u nder the

railro ad law , St . 1906, c . 463, Part II , 232. Wright 0. Bo sto nAlb any Railroad , 142 Mass . 296 . Whatever right he o r his

employer may have had to u se the grade cro ss ing at the end

Of Fifth Stree t, where precau tio n s were ta ken fo r the pro tectiono f tho se u sing it and o f the train s, the Bo ard was n o t ju stifiedin their finding that “ there is n o qu estion in this case as to theemployee ’s right, as o n e Of the wo rkmen employed by the su b

scrib ers, to enter and cross the railroad at the place where thein ju ry o ccu rred .

”The employer co u ld n o t co n fer u po n its em

ployee s the right to cro ss the railro ad lo cation , n o r d id it assume to po ssess o r co n fer any su ch right. See John Stewartand So n s, Ltd . , v. Lo nghu rst A . C . 249 ; Charle s B .

Davidso n 0. M . Ro bb A . C . 304, 331 . In Fox a.

Rees and Kirby, 1 15 L . T . (N . S .) 358, cited by the Bo ard ,the railway o n which the acciden t o ccu rred was a private o n e ,

lead ing to the wo rks where the wo rkman was employed, and

it was a reco gn ized and regu lar way u sed by the wo rkmen bypermissio n Of the owners . In the presen t case , adm itted ly thegeneral pu b lic had n o right to cro ss the railro ad track at the

place o f the accid en t. The Chem ical Company acqu ired n o

su ch right fo r its o ffice rs, employees o r o thers . Bell’ s co n tractOf employmen t d id n o t pro vid e that he was to be co n sid eredin the employer’ s service while cro ssing the railroad tracks ingoing from the facto ry to his home . No su ch term c a n b e

read in to the con tract by implication , b ased o n the failu re Of

the Chem ical Company to pro vid e other ways to and from the

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facto ry that were co nven ien t and safe . It is n o t to b e in ferredthat the company assumed to give Be ll a right to cro ss therailro ad lo catio n which its ow n Officers co u ld n o t u se except astre spassers . In sho rt, he acqu ired n o su ch right from his c o n

tract o f service .

It fo llows that the employee w a s o n his ow n b u sine ss, and

n o t that o f his employer, when he was in ju red o n the railro adtrack . His co n tract d id n o t co n template , n o r w a s he in factengaged in , a ny service fo r the employer at that place . The

risk from which he su ffered was n o t a risk o f his employm en t.The train which in ju red him was n o t own ed by the ChemicalCompany, a nd was n o t co nn ected with its b u sine ss o r with thewo rk for which Be ll was employed . The case is n o t d istin

gu isha b le in prin ciple from Fum icie llo’

s Case , 219 Mass . 488,where the employee was killed by a train when o n his way homefrom wo rk . We a re co n strain ed to say that the Bo ard were n o t

warran ted in find ing that the employe e ’s in ju ry aro se o u t o f

and in the co u rse o f his employmen t, within the mean ing o f the

Wo rkmen ’ s Compen satio n Act.It is re cited in the decree that the co u rt ru led it had no

fu n ctio n to perfo rm except to e n ter a d e cre e in acco rd an cewith the d ecisio n o f the Ind u strial Accid en t Bo ard . This w a serro n eo u s . As w a s sa id in Brown ’ s Case , 228 Mass . 31 , 38:“When co pie s o f the d ecisio n o f the Bo ard a nd all papers inco nn ectio n therew ith have b een tran smitted to the Su perio rCo u rt, it is the d u ty o f that co u rt to take su ch actio n and

make su ch a decree a s the law requ ires o n the fa cts fo u nd bythe Bo ard . It is fo r the Su perio r Co u rt to d e termin e whato rder o r d ecree o u ght to b e mad e o n the facts fo u nd . It ha sju risdictio n over the ca se in the same w ay and to the sam ee xte n t that it ha s , fo r example , in a su it in equ ity where thefacts have b e en fo u nd by a maste r . This was fu l ly se t fo rth inMcNic o l

’

s Ca se , 215 Mass .D ec ree reversed .

Filed March 7, 1921 .

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CASE No . 8430. (238 Mass .

JOSE PH J . STAFFORD (DE CE ASE D), Employee .

E . S . BOOTH CO . , E mployer .

E MPLOYE RS ’ LIABILITY ASSURANCE CORPORATION, LIMITE D ,Insu rer.

D E PE ND E NT .

The a c t defin es dependen ts as m em be rs o f the em ployee ’

s fam ily o r n ext o f kinw ho were who lly o r pa rtly depe nden t u po n the e a rn in gs o f the em ploye e fo rsuppo rt at the tim e o f the in ju ry ; ” there fo re . a cla im an t (an aun t) cann o tbe the em ployee ’

s n ext o f kin , sin ce his s is te r su rvived him , n o r c an su chcla im an t b e a m embe r o f the em ployee ’

s fam ily , sin ce she w as in fa ct the he ado f the fam ily o f which the em ployee w as a m embe r. Ke lley ’

s C ase , 222 Mass .

538 ; Cowden ’

s Case , 225 Mass . 66 ; Maho n ey ’

s Case , 228 Mass . 555 .

ME MBE R OF E MPLOYE E ’S FAMILY .

Whe re cla im an t is the head o f the fam ily o f which the employe e is a m embe r ,su ch cla im an t is n o t a dependen t under the a c t .

NE X T OF KIN .

Whe re the em ployee is survived by a s is te r , his aun t. cla im in g com pen sa tio n unde rthe a c t , is n o t his n ext o f kin .

FIND INGS OF FACT.

The Bo ard ’

s fin din gs o f fa ct m u st sta nd when su ppo rted by eviden ce . Pass ’

Case .

232 Mass . 515 .

RE PORT OF MEMBE R OF INDUSTRIAL ACCIDE NT BOARD .

The memb er o f the Indu strial Acciden t Bo ard appo intedu nd er the pro visio ns o f Part III , sectio n s 5 a nd 7 , chapter 751 ,Acts Of 191 1 , a nd ame ndmen ts thereto , having heard the par

tie s in the ab o ve-named case in the ro oms o f the Bo ard , WestWing, State Ho u se , Bo sto n , Mass . , o n Tu e sd ay, Oct . 14, 1919 ,at 2 P .M . , repo rts as fo llowsAppearance s : Francis A . Lavelle , E sq . , fo r in su rer ; Wm .

Reed Bige low , E sq . , fo r pe titio ner .

Qu e stio n : (1) Whe ther o r n o t E l izab eth A . Mu rphy, theau nt Of the d eceased employee , is a d epe ndent u nd er the

Wo rkm e n’s Compe n satio n Act ; a nd (2) if so , to what exten t

she is d epe nd e n t .All o ther qu e stio n s n ece ssary to l iab ility have b een asse n te d

to by the in su rer, and it is fu rther agreed b e tween the partie sthat the average weekly wage o f the de ce a sed was

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28

emplo yee ’s d e ath she had some pro perty Of her ow n , a nd she

had in the b ank .

At this po in t in the hearin g witness ’ b ankbo o k was in spectedby co u n se l , a n d it showed that at the time o f Jo seph Sta ffo rd ’

s

d eath witne ss had in the b ank .

Witn e ss sta ted that at that time she had o ne-third intere stin the ho u se in which she l ived . There was a mo rtgage o f $700

o n the ho u se , which was asse ssed fo r It is a tw o -te neme nt ho u se . At the time o f the d ecea sed emplo yee ’s d e a thwitne ss l ived in o n e te nement , a nd the o ther te nemen t was no tle t . The stepso n owned the o ther tw o -third ’s intere st in the

ho u se . Witn e ss stated tha t she d o e s no t know how mu ch theho u se w a s re ally wo rth, b u t she su ppo se s that , being asse ssedfo r it was wo rth that amo u nt . Witness stated that atthat time she d id n o t have any income except what mo neyJo seph paid her . He pa id fo r his ow n clo the s . The mo neyhe gave witne ss we n t “

fo r the ho u se .

” Her n iece , Lo u ise Staffo rd , Jo seph

’ s sister, w a s l iving with witne ss a t the time . She

wo rked in the New E nga u d Te lepho ne E xchange and rece iveda we ekly wage o f $ 1 1 . Lou ise gave what she earned to witne ss ,then witn e ss clo thed her and su ppo rted her with the mo ney .

Be fo re Lo u ise wen t to wo rk fo r the te lepho ne company, a ftershe first le ft scho o l , she wo rked in a b o o k b ind ery . She d id

no t e arn mu ch in the b o o k b ind ery, b u t gave what she earnedto witn e ss . The de ce a sed paid fo r the ru nning expe n se s o f theho u se . Qu e stio ned as to the fo rm in which he paid fo r it,witn e ss replied that he gave he r pro b ab ly $ 12 o r $ 15 Sa tu rdayn ight , and the n , if there was anything mo re She n eed ed , he

gave it to her . He gave her the $12 o r $15 Satu rd ay nightsfo r the ru n n ing expense s o f the ho u se . Then , if tha t was no te n o u gh,

“Jo e wo u ldn ’t mind go ing o u t and b u ying a nything

tha t w a s ne ed ed . Apart from what Jo e pa id her a nd fromwhat his sister, Lo u ise , pa id her, witne ss had n o o ther income .

With that she pa id the ho u seho ld b ills , except what Jo e paidb e sid e s . They lived in o ne tenemen t to gether , and the o therte neme n t had b ee n vacant fo r a year . There is a family init now , who mo ved in in Ju ne .

Qu e stio n ed by the Commissio n er, Mrs . Mu rphy te stified thatthe o ther ten emen t in the ho u se had b een vaca n t fo r pre tty

29

nea r a ye ar befo re Jo seph Staffo rd died . She stated tha t itwas n o t hab itab le , and beside s , the ho u se w a s su ppo sed to besold , so that the stepso n co u ld ge t his tw o -third s . He o rd eredthe family o u t in the latter part o f Au gu st . Witne ss sta tedthat she is fifty-six ye ars Of age .

Cro ss-examined , Mrs . Mu rphy testified tha t she and her

hu sb and had lived a t 221 Web ster Stree t fo r ab o u t thirteenyears b e fo re he d ied . They l ived there to ge ther and keptho u se . Be fo re tha t they lived at 56 Bremen Street ; the landlady ’s name there w a s Mu rphy . Jo seph Sta ffo rd , the d ece a sedemploye e , his sister , Lo u ise Sta ffo rd , an d the stepso n a lso l ivedwith them . They l ived there five years . Witn e ss also lived at14 Ha in e s Street with her hu sb and , Jo seph Staffo rd , a nd

James Mu rphy, the stepso n . Lo u ise Staffo rd , the n ie ce , wasn o t with them then . Witness ha s had Lo u ise since she wasfo u r ye ars Old . She w a s asked where Jo seph Sta fford ’

s paren tswere living then , and she sta ted that she d id n o t kn owmayb e they lived o n Co ttage Stre e t . They never stayed verylo ng anywhere . Ab o u t thirty ye ars ago they lived o n Margin alStreet . Jo seph Sta ffo rd

’ s father d ied abo u t e ight years ago .

His mo ther d ied a ye ar later . Q . At the time o f Jo sephStaffo rd ’s father’ s d e a th who was Jo seph l iving with? ” A .

Mo st always with m e . I had to see to him all o f the time .

Ju st b e fo re his mo ther got serio u s sick he w a s fifte en o r sixteen , and I tho u ght he was a b o y big eno u gh to he lp her .

They both d ied and were sick at the same time , i .e . , the mo therdied a year after the father, b u t she had b e en sick fo r twoyears b e fo re her d eath .

”

Q. Tw o ye ars b efo re Jo seph Staiford ’s mo ther d ied he was living with her, wasn

’t he ? ” A .

“NO . His mo ther d id n ’t keep ho u se . He u sed to come in and

get his me als with m e and stay with me practically a ll o f the

time . His mother was in a lodging ho u se . He w a s with mepractically all of the time . Q . When he was n o t with

yo u ?” A .

“The n he wou ld go with his mo ther . I mightsay he always lived with me . He d idn ’t live with his mo ther,becau se she d idn ’t keep ho u se . Witness stated that her hu sb and d ied in Octo b er , 1916, a t which time her stepso n w a s no t

living with them . After his father’s d eath the stepso n w as

no t wo rking, came b ack to the ho u se , living there u n til Feb ru

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ary , 1917 . Q Jo seph Staffo rd w as no t living with yo u

then ? ” A . Yes , practically all Of the time . If he was o u tOf town , Of co u rse , he didn

’t live with me . He always livedw ith me o ff a nd o n , all o f the time . She next stated thatthere was a time when the dece ased employee , Jo seph Staffo rd ,

d id n o t l ive with her . Q .

“Wha t time s didn ’t b e live with

yo u ?” A “There were time s he d idn ’t live with m e ? O

n o .

”

Q . What do yo u me an by‘living w ith yo u Off and

o n ?’

D id Jo seph Staffo rd live with yo u at 221 Web ster Stree tfrom the time he was a little b o y u n til his dea th? ” A Ye s .

He lived with me ab o u t all o f the time . Q B u t there weretime s when he didn ’t live with yo u ?

” A . We ll , there was atime there when he was fu ssing with my stepso n a nd he had

to ge t o u t .

” Jo seph w a s living w ith her in Feb ru ary, 19 17 ,when her stepso n left .Qu e stio ned by the Commissio ne r, Mrs . Mu rphy te stified that

Jo seph Staffo rd , the d e ce a sed emplo yee , w a s with her all o f thetime after he r hu sb and d ied , and that he was with her all o fthe time to the time her hu sb a nd d ied .

Qu estio ned fu rther by the in su rer, Mrs . Mu rphy te stifiedthat there w a s a time , right b e fo re his father died a nd after hed ied , when Jo seph was n o t with her fo r a sho rt time . She do e sn o t kn ow where he was . Q .

“ It is also tru e that u p to the

tim e o f his mo ther’ s sickn e ss and death he was with her? ”

A . He was with me all o f the time .

”

Q .

“D idn ’t yo u te llm e that when his mo ther was sick he didn ’

t sta y with yo u ,

b u t some time s wen t o ver to his mo ther? ” A .

“We ll , hismo ther w as in a lodging ho u se , and d idn

’t have a place fo r him .

When his mo ther was sick I wan ted him to try to he lp hero u t .

”

Q .

“He didn ’ t live with yo u then ? A . No t atthat time . Q .

“Up to the time his mo ther d ied he to ok care

o f her?” A . Yes , as mu ch as he was ab le . He was o n ly a

b oy when his mo ther d ied . He was ab o u t seven teen o r e ighteenyears Old . He was wo rking at the time , b u t n o t earn ing verymu ch.

”

Q .

“B u t he w as n o t living with yo u then , with his

mo ther? ” A .

“We ll, fo r a little while .

”

Q .

“And that w a s

tru e also o f the time his father died . He was n o t living wi th

yo u then ?” A .

“Yes . He was living with m e then , when hisfather d ied . He ha s b een living with me since he w a s b o rn .

”

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the stepso n , died last May . He d id n o t tran sfer his in tere stin the e state to her fo r be fo re his death. At herhu sb and ’s d eath she rece ived o ne-third in tere st in his e state ,a nd his so n (witnes s

’ stepso n), James Mu rphy, received tw o

third s . Witness sta ted that in Jan u ary, 19 19 , she n ego tiatedwith Jame s Mu rphy, her stepso n , fo r the pu rchase fo ro f his tw o-third s in terest in the pro perty, the tran sactio n b e ingcompleted ju st a week b e fo re he died . Q .

“And yo u paid him

A .

“We ll the mo n ey in the b ank I had to draw o u t

to give him . I gave him what I had . I gave him then ,

and there was a mo rtgage o f

Qu e stio ned by the Commissio n er, Mrs . Murphy te stified thato n her hu sb a nd ’s d e a th, Jame s Mu rphy d id no t get fo r

his share . The property — the e sta te in the pro b ate co u rtw a s su ppo sed to b e wo rth He go t tw o -third s and w it

n e ss go t o ne-third intere st in the e state . Witne ss stated thatshe owned the furn itu re in the ho u se at the time o f Jo seph Staffo rd ’s death . She stated that there was a n admin istra to r ap

po in ted o f her hu sb a nd ’s e sta te ; a nd that she ha s filed an

accou n t in the pro b ate co u rt . Philip McArd le w a s her atto rney .

She stated that the who le e state le ft by her hu sb and a nd

d ivided b e tween her and her stepso n was wo rth She

le ft the who le matter to her atto rney . Q .

“How mu ch d idyo u r hu sb a nd le ave , all to ld ?

” A .

“We ll , with the in su ra n cea nd all I had that The ho u se was cle ar at the time ,a nd I had to take $700 mo rtgage to pay the b ills .” Q .

“So

tha t yo u r share o f yo u r hu sb and ’s e state , whe n everything w a scle ared up, w a s A .

“Yes , tha t w a s inclu d ing the

$500 life in su ra nce a nd $300 from the b ricklaye rs ’

a ssocia tio n .

”

Qu e stio ned fu rther by the in su rer, Mrs . Mu rphy testified tha tshe recalls a m a n named Garrow , from the in su rance company,calling o n her in Jan u ary . Q .

“

And he asked yo u ab o u t thiscase a nd ab o u t Jo seph Sta fford ’s l iving with yo u . D id yo u

te ll him this that when ever yo u n e eded mon ey Jo sephStaffo rd gave it to yo u ; a nd whe n he n e ed ed mo ney yo u wo u ldadvance it to him , o r lend it to him ?

” A .

“Tha t w a s a fterhe gave m e the $12 o r $15. If I wan ted any mo re I co u ld n ’t

ge t alo ng ve ry we ll with the b ills coming in a nd he wo u ld

give m e mo re .

” Jo seph wo rked pre tty we ll every week .

33

There were a co u ple Of weeks tha t he did n ’t wo rk, a nd he

wo u ldn ’t think anything ab o u t go ing o u t a nd se lling a LibertyBo nd .

”She knows o f his se lling tw o b o nd s , a nd his sister ha s

tw o Of his b ond s n ow . He had fo u r $50 b o nd s that she knewo f . Witn e ss sta ted that o n D e c . 18, 1918, Mr . Harvey (pre sen tat the he aring) called o n her and asked her fo r info rmatio nwith re ference to the case . She reca lls giving him a stateme n tOf fa cts . She rememb ers te lling him that Jo seph Staffo rd hadlived with her u n til he w a s ab o u t sixte en ye ars o ld , when hele ft a nd wen t to live with his mo ther . Q.

“

"

Yo u said to Mr .

Harvey ‘tw o ye ars ago my hu sb and d ied a nd Jo seph came to

l ive with A .

“No . I sa id ab o u t a year a fter his

mo ther d ied , o r right after, he came b ack to l ive with me . Ithink whe n he was sixtee n ye ars Old his mo ther w a s sick and

n o t ab le to wo rk . So I tho u ght it proper fo r him to go a nd

live with her . I d id n ’t nee d him . Q .

“Do n ’t yo u kn owthat befo re yo u r stepso n le ft yo u r home Jo seph Staffo rd wasn ’tliving with yo u ?

” A .

“He w a s living with m e ab o u t all o fthe time . Q . He was taking his mea ls with yo u , no t

sleeping? A . He w a s staying with m e a ll the time . Mystepso n came in when he l iked . My stepso n never wo rked inhis l ife . He never wo rked . His father co u ld n ’t do anythingwith him . He d id n ’t have a trad e . He never wo rked , a s far

as I know . He w a s no ted fo r it . ” Witne ss sta ted that she

to o k care o f Jo seph a nd Lo u ise Staffo rd be cau se the ir mo therand fa ther d id n o t ge t alo ng we ll to ge ther ; that she lo o kedafter them and mo thered them . She to o k them in to her homea nd lo o ked a fter them . The ir pare nts d id no t l ive to ge ther allo f the time . So witne ss a nd her hu sb and took the tw o childrenin to the ir home .

On re-d irect examinatio n Mrs . Mu rphy te stified that afterJo seph Staffo rd ’s mo ther died he lived with her, adding thathe l ived with her ab o u t a ll o f the time , and tha t he co u ld n o t

do e no u gh fo r her . He always said he co u ld n o t d o en o u ghfo r her . Witne ss was asked if there was a time after herhu sb a nd d ied that her stepso n a nd Jo seph co u ld no t ge t alo ngpe acefu lly, a nd she replied tha t was tru e , add ing that n o b o dyco u ld get a lo ng with him . So a fter her hu sb and d ied Jo sephwen t away from the home fo r a little while . After her stepso n

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le ft the ho u se Jo seph came b ack, b u t there w as a sho rt interru ptio n . From that time o n Jo seph lived with witne ss to the

t ime o f his death . Du ring the sho rt time that Jo seph wasaway from her home he d id no t give witness a ny m o n ey . He

gave it to his sister the n . When Jo seph retu rn ed to the ho u sehe gave her mo ney every week the same as b e fo re he wen taway .

On fu rther cro ss-examinatio n Mrs . Mu rphy te stified that herstepso n was fo rty years o f age , and that he gave her $5 a weekfo r o ne year in his life ; that was a ll he ever gave her . He

wo rked o n a dredge r then . He wo rked if they wanted aspare ha nd o n the do c ks . She was asked if he was a painterby trad e , and she replied tha t he was no t that she ever kn ewo f , add ing tha t he never le arn ed the trade . She was asked ifthe tenemen t she lived in a t 221 Web ste r Stree t w as a ny

b e tter tha n the o ther ten emen t , a nd she replied tha t it was no t .

She added that she lived d own stairs , a nd that the o ther ten eme n t (Upstairs) w a s le aking . However, the d own sta irs te nemen t d o e s n o t b ring any mo re re n t tha n the u pper . Witn e ssstated that if she co u ld re nt the part o f the ho u se she w a s

living in fo r $ 12 a mo n th she wou ld d o so , add ing that n o o ne

wo u ld let a te neme n t fo r le ss now .

On re-d irect examin atio n Mrs . Mu rphy te stified that she paidher stepso n and that he go t all the ren ts an d whateverthere w a s ; that she gave him all she had . There w a s a mo rt

gage o f $700 o n the ho u se . That mo rtgage w a s taken o u t to

pay the expe n ses o f lawyer, pro b ate co u rt and fu n era l . Afterthe $700 was go n e , witn e ss had n o mo n ey at all, except this

She gave all that to her stepso n , except $10, which she

left in the b ank. Q .

“What e lse d id the stepso n ge t ?” A .

“ I do n ’t kn ow . That’s all I have . There ’ s a mo rtgage n ow

o f o n the ho u se .

”

Lo u ise Sta ffo rd , called by the claim an t, te stified tha t she

live s at 221 Web ster Street with her au n t, the claiman t . She

ha s b e en wo rking fo r the New E ngland Te lepho n e Company fo rthe last three years . Ab o u t the tim e her b ro ther Jo seph d ie dshe w as earn ing $1 1 a we ek. Witn e ss w a s asked what she d idwith her weekly wage , a nd she replied that if she wan ted any

thing o u t o f it, she to o k it, and then gave the remaind er to her

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was a little girl . Witn e ss stated that she is n ow twenty-tw oyears o f age . Q.

“D O yo u remember o ne tim e when yo u r

b ro ther w a s ab o u t Sixteen years o f age, he left yo u r au n t’ s and

wen t to live with yo u r mo ther? ” A .

“When she w a s sick.

Q . And he Slept, n o t at yo u r au n t’s, b u t at Sumner Stree t?

A . NO , he wen t b ack and fo rth. Q.

“In the sen se that

he was living at a place , he w as living at yo u r mo ther’s a nd no t

at yo u r au n t’ s ? ” A .

“ I sho u ld think he wo u ld b e living atb o th ho u se s . He slept at her au n t

’s hou se ; lived there allthe time sin ce he was a yo u ngster. He was living there whenher au n t ’s hu sb and , Hen ry Mu rphy, d ied At the time Josephle ft the ho u se he le ft o n acco u n t o f a spat with her au n t’sstepso n . Of co u rse, Jo seph d id n o t live with them then . Hewas living with them at the tim e o f his father’s death. Q .

“When he was he lping yo u r mo ther when She w as ve ry sicka nd at the time o f her death, was he living at you r au n t

’

s

ho u se ? ” A .

“He was b ack and fo rth. He was at o u r ho u se"mean ing au n t’ s ho u se]. I do n ’t know as yo u wo u ld call itliving there "mean ing the mo ther’s home]. Witne ss statedthat at that tim e Jo seph was with her au n t and her practicallyall o f the time . He was b ack and fo rth b e tween the tw o

hou se s . Q .

“There were time s that he didn ’t live at yo u rau n t’ s ho u se? ” A .

“Yes .

B oa rd Member’

s Ru lings and Findings .

The petitio n o f the alleged d ependen t in this case mu st, u po nthe fo rego ing evid ence , b e d ismissed . The evid en ce shows , andI find , that the petitio n er was the head o f the family o f whichthe d eceased was a memb er at the time o f his death. The

evid en ce also d isclo se s that the pe titio ner was n o t the n ext o fkin o f the deceased , there b e ing a Sister who su rvived him .

The se findings b ring this case within the law as estab lished inKe lley ’ s Case , a nd it fo llows that the petitio n er is n o t en titledto compen satio n .

Co u n se l fo r the pe titio n er ha s argu ed that the deceased w a s

the he ad o f the family, an d he ha s su bmitted au tho ritie s insu ppo rt o f this co n tentio n . I have examined his b rie f and thecase s cited , b u t they d o no t, to my mind , call fo r a finding

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o ther than that made . The de ceased had , to a very co n sid erab le exte nt, b ee n b ro u ght up b y the petitio ner . As a b o y hecertain ly had n o t b een the head o f the family . While away fromthe ho u seho ld in la ter yea rs he had ma d e n o co n trib u tio n to

keep the ho u seho ld go ing . He a t o n e time le ft the ho u seho ldb e cau se o f tro u b le with his stepbro ther . This d o e s no t ind icatethat he had “

the exclu sive ma n ageme nt o f the ho u seho ld af

fairs . No thing in the evid ence tends to indica te that thed ece a sed at a ny time thereafter assumed su ch co n tro l . The

te stimo ny o f the claima n t showed pretty pla in ly that she c o n

sid ered that she w a s the co n tro ll ing a nd predominating facto rin ke eping the ho u seho ld in tact .While some o f the ca se s cited Show tha t there may b e a pre

sumptio n tha t a hu sb and is the hea d o f a family, it do e s n o t

fo llow that there is a pre sumptio n that a ma le memb er Of afamily is the head Of the family .

WM . W . KE NNARD .

Filed Sa tu rday, Nov. 1 , 1919 , at 9 AM .

FINDINGS AND DE CISION OF THE INDUSTRIAL ACCIDE NT BOARDON RE VIEW .

The pe titio ner having filed a claim fo r review , the Ind u strialAccid e nt Bo ard heard the partie s at Bo sto n , Mass . , o n Wed n e s

day ,Nov. 26 , 1919 .

Pre se nt : Me ssrs . Ken nard , Dickin so n , Do nahu e , Parks and

Gle a so n .

Appe arance s : Wm . Re ed Bige low,E sq . , fo r petitio n er ; Fran

cis A . Lave lle , E sq . , fo r in su rer .

Qu e stio n : Depend e ncy .

The repo rt Of the Bo ard memb er co n tain s all the ma terialevid ence .

The Ind u strial Accid ent Bo ard affirm a nd ad o pt the findingsand ru lings Of the Bo ard member . The evide n ce show s thatthe petitio ner was the head o f the family o f which the d e cea sedw a s a memb er at the time o f his d eath. She was n o t the nexto f kin Of the deceased , there being a sister who su rvived him .

Fo llowing the ru le o f law estab lished in Kelley ’s Case , 222

238

Mass . 538, the pe titio ner, b en neither a membe r o f the em

plo yee’

s family no r his next o f kin , the claim fo r compen sa tio nis d ismissed .

WM. W. KENNARD .

DAVID T . DICKINSON .

FRANK J . DONAHUE .

Filed Mo nday, Dec . 22, 1919 , a t 9 AM .

DE CRE E OF SUPREME JUDICIAL COURT ON APPE AL.

DE COURCY, J . The emplOye e rece ived in ju rie s arising o u t

Of a nd in the co u rse o f his emplo yment , which re su lted in hisd eath D e c . 13, 1918. He w a s u nmarried , a nd the next o f kinsu rviving him w a s his sister Lo u ise . The claima nt , E lizab e thA . Mu rphy, w a s his a u nt . The employee a nd his sister hadl ived with her mo st o f the time since childho o d . The ho u se inwhich they lived had b ee n own ed fo r ma ny ye ars by the claiman t ’s hu sb and , a nd after his d e ath in 1916 She own ed o ne -thirdin tere st there in , a nd b o u ght her stepso n

’s tw o -third in tere st inJan u ary , 1919 . It is agre ed tha t the average weekly wage o f

the emplo ye e w a s He gave the cla iman t $ 15 a we ek o n

a n average , a nd Lou ise , who e arned $ 1 1 a we ek , after re ta in ingwhat she nee d ed , gave the remainder to her au n t . Mrs . Mu r

phy own ed the ho u seho ld fu rn itu re , and paid the ho u seho ldb ills .The Wo rkme n ’s Compen satio n Act d efin e s d epe nde n ts asmemb ers o f the employee ’ s family o r n ext o f kin who werewho lly o r partia lly d epe nde n t u po n the e arn ings o f the em

plo ye e fo r su ppo rt at the time o f the in ju ry .

” St . 191 1 , c . 751 ,

Part V , 2. Admitted ly the cla iman t was no t next o f kin ,

since the employe e ’

s sister su rvived him . The In du strial Acc id en t Bo ard ha s fo u n d tha t she w a s n o t a memb er o f the em

plo yee’

s family, a nd this finding mu st sta nd , a s it find s su ppo rtin the evide n ce . In the langu age o f the Bo ard memb er : The

d ece a sed had , to a very co n sid erab le exten t , b e e n b ro u ght u pby the pe titio ner . As a b oy he certa in ly had n o t b een the heado f the family . While away from the ho u seho ld in la ter ye a rs ,he had mad e n o co ntrib u tio n to keep the ho u seho ld go ing . He

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240

RE PORT OF MEMBE R OF INDUSTRIAL ACCIDE NT BOARD .

The mem ber o f the Indu strial Acciden t Bo ard appo in tedu nder the pro visio ns o f Pa rt III , sectio n s 5 a nd 7 , chapter 751 ,Acts o f 191 1 , a nd amendmen ts there to , having hea rd the

partie s in the above-named case at the ro om s o f the Bo ard,State Ho u se , Bo sto n , Mass . , o n Friday, Sept. 17 , 1920, at

A .M . , repo rts as fo llows :Appearan ce s : J . L . Wiseman , E sq . ,

fo r employe e ; IrvingF. Carpen ter, E sq . ,

fo r in su rer.

In a claim fo r compen satio n filed o n Ju ly 22, 1920 the timeo f the employe e ’ s in ju ry was stated to have been May 151920, 8 the place as “

1 12 Shawmu t Ave . , Bo sto n ;the cau se as Thru n egligence o f employer o r his agen t inpro per managemen t o f e levato r and co n tro l o f e levato r. E le

va to r cru shed Nathan Latter to d eath ; a nd the natu re o f the

in ju ry as Cru shed to d eath by e levato r.

”

The employer repo rted the in ju ry to the em ploye e u nd er

date o f May 20, 1920, d e scrib ing the o ccu rrence o f the in ju ryas fo llows : “

E levato r o perato r started elevato r b efo re Mr.

Latter w a s comple te ly in c a r. Was dra gged from stre e t flo o rto fifth flo o r. Killed in stan tly . The time o f the in ju ry wasgiven a s Satu rday, May 15, 1920, at 8 o

’clo ck, a nd the in ju rywas stated to have b een cau sed by a pa ssenger e levato r.

Qu e stio n : Whe ther the in ju ry o ccu rred in the co u rse o f and

aro se o u t o f the employmen t .

Report of the E viden c e .

Agreed facts : It was agreed that the average weekly wage so f the employee were $30; that the Un ited State s Fid e lity a nd

Gu aran ty Company in su red M . S . Ko nd a z ia n at the time o f

in ju ry to employee ; that La tter was in the gen eral employ o f

M . S . Ko nda z ia n ; tha t the le sso r o f the bu ild ing a nd n o t the

employer o f Latter co n tro lled the e leva to r ; that the le sso rhired the e levato r o perato r ; that the e levato r was fo r the

common u se o f all the ten an ts o f the b u ild ing ; that Latter w a sin ju red o n May 15, 1920, a nd d ied the same d ay ; that he waskilled by the prematu re sta rting o f the e levato r while en tering

241

it ; that Latter’ s ho u r fo r beginn ing wo rk was 8 A .M. tha t

Ko nd a z ian o ccu pied the fifth flo o r o f the bu ild ing where the

accid en t o ccu rred ; that Latter was getting in to the elevato rat the stre et flo o r when the acciden t happen ed and w a s draggedu p to the fifth flo o r.

Lieu t. Wm . E . McKeever, Ladd er 13, called by the claiman t,te stified that Latter was d ead when he go t there , as far as heco u ld see .

Cro ss-examined : He is co n nected with Ladd er 13, WarrenAven u e . Asked from whom he first rece ived wo rd o f this,witn e ss te stified that they rece ived a te lepho n e from headqu arters . They to ok the apparatu s and wen t up there , whatthey call the e levato r kit, life lin e , jacks, wedges . They se t

this jack in b etwe en the e leva to r and the wall, screwed up o n

it, dro ve wedge s o n b o th sid e s o f the b o dy, o pen ed it u p asmu ch as they co u ld , then go t a life lin e , pu t aro u nd the b o dy,b roke the wall , lowered the b o dy d own , pu t o n a b lanke t an dthen the po lice to ok care o f it ; he wen t right b ack to headqu arters . The m en who wo rked with him were all from thatstatio n ; that tru ck ha s the e levato r kit . He w en t u p the

stairs . The stairway was ju st as o n e come s in the d o o r.

They tied the life lin e aro u nd the b alu sters, lowered d own the

e levato r a nd hitched right aro u nd the b ody . The stairway isright in fro n t o f the e leva to r ; they u sed the po st o n this stairway for this life lin e . Latter was hanging by the arm b e twe enthe fo u rth and fifth flo o rs, a nd his b ody was right in the

o pen ing o f the e leva to r. He d id n o t see the o perato r o f the

e levato r ; they co u ld n o t ge t any in fo rmatio n at all o f who

was to take o u t the bo dy ; they le ft it in the hands o f the

po lice and wen t b ack to headqu arters.To Mr. Do n ahu e : There was n o o n e in the e levator when he

go t there that he n o ticed .

Arthu r Ayva z in , called by the claiman t, te stified that helive s at 314 Shawmu t Aven u e. He is sho p fo rema n a t M . S .

Ko nda z ia n’

s . He had b een employed there almo st a year. He

knew Nathan La tter ; he had kn own Latter sin ce he had beenthere . Latter was wo rking there when he c ame in . Latterwas wo rking there d u ring May, 1920. Some o f the wo rkmenin Ko ndaz ian

’

s go up to wo rk by the stairs, a nd som e o f them

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go by the e levato r. The e levato r is u sed by the wo rkmen .

Latter repo rted fo r wo rk at 8 O’clo ck. Latter was basting

u nd er co llars pu tting o n u nder co llars . He remembered thatthe accid en t happen ed May 15, 1920, Sa tu rd ay mo rn ing. On e

o f the wo rkm en came up a nd to ld him there was a n acciden t ;that was a little after 8 O

’clo ck, alm o st tw o min u te s past 8.

He ra n o u t to see, and saw Latter in betw een the e levato r and

the wall, hanging down thro u gh a little ho le . Asked if therewas a ny o n e in the e levato r bes ides, w itne ss replied that as heu nd ersto od there was an Arm en ian wom an ; he did n o t see anyo ne in the e levato r ; he d id n o t see the o perato r o f the e levato r.

Mr. La tter w a s at wo rk the d ay befo re this happen ed . As fara s he co u ld see, when they to ok the bo dy o u t Latter w as dead .

Myro n S . Ko nd az ian , called by the claiman t, te stified thathe ru n s a facto ry at 1 12 Shawmu t Aven u e , fifth flo o r. He

lease s the premises from R. W . Hu ll. He d id n o t have hislease with him . There is n o t anything sta ted in his leaseabo u t the u se o f the e levato r ; he was po sitive o f that. Hehad lo oked at his lease recen tly . The lease is n o t a regu larlease , it is ju st a le tter written by Mr. Hu ll giving them an

Optio n o f three years lo nger than fo r the time they to ok theplace . There is n o thing whatever stated in his lease re lativeto the u se o f the e levato r. He had be en a tenan t in thatb u ilding three years . Q. D id yo u ever issu e any in stru c

tio n s fo r u se o f the e levato r to yo u r employe es ? ” A .

“In

what way? ” Q.

.

“To go u p to wo rk by the way o f the e le

vato r? ” A . N0 . Some o f his employe e s go by the e le

vato r to go to wo rk, a nd some go by the stairs . He d id n o t

know Latter perso n ally ; all he kn ew was that Latter wo rkedfo r them . He w a s n o t there at the tim e o f the accid en t.Cro ss-examin ed : They d o n o t provid e any co nveyan ce o r

mean s o f tran spo rtatio n fo r employe e s to and from the ir wo rk.

Latter’ s employmen t commen ced at 8 O’clo c k in the mo rn ing .

He had n o d irectio n o r co n tro l over Latter previo u s to tha tho u r. Q.

“D id yo u have a ny d irectio n o r co n tro l over him

b efo re he en tered the shop? A . NO, sir ; w e d id n o t .

” He

d o es no t employ the elevato r operato r o f that c a r ; he d o e s n o thave a ny d irectio n o r co n tro l over him , the c ar o r the e levato r .

His premises are o n the fifth flo o r. The elevato r did n o t open

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244

M . S . Ko nd a z ian ; she had been em ployed there six years .She had be en in that bu ild ing at 1 12 Shawm u t Aven u e thre eyears . She u ses the e levato r in go ing to wo rk a nd in comingd ow n at n ight, when it is ru nn ing . The e levato r stops atif she happen s to b e wo rking after she walks down . She

rememb ered May 15, the day o f the accid en t . She was n o t in‘

the bu ild in g at the time the acciden t happen ed .

Cro ss-examin ed : She had seen employee s o f Ko nd a z ian u singthe sta irway a nd employee s o f o ther ten a n ts o f the b u ild ing .

Re-d irect : She n ever paid any particu lar atten tion to see

whe ther the employee s u sed the stairway . Some o f the em

ployee s u se the stairway all the time. She kn ew that she u sedthe stairway after the accid en t and previo u s to the accid en t.Previo u s to the a ccid en t she d id n o t u se it o ften . She d id no t

kn ow o f a ny o n e e lse u sing it o ften previo u s to the a ccid en t,that is, she n ever paid any particu lar atten tio n to it .Re-cro ss : It is a fact that she had seen employee s go ing u p

a nd d ow n the stairs witho u t paying any particu lar atten tio n towhom they might b e ; she had m et them .

To Mr. Do nahu e : She d id n o t u se the stairs b ecau se she

was afraid o f the e levato r operato r ; she u sed them when the

e levato r w as crowded . Sometime s the e levato r was n o t ru n

n ing ; som e times she wo u ld b e at the fo o t o f the stairs and

in stead o f wa iting fo r the e levato r wo u ld walk up. If thee levato r w a s there she wo u ld n o t walk u p fo u r flights .Re-d irect : She had n o ticed the o pera to r o f that e levato r

prio r to the acciden t . He had a d e fo rmity ; o n e hand w a s

sho rt . She co u ld n o t te ll which hand it was, b u t she tho u ghtthe o n e which he u sed to ru n the e levato r w ith, b ecau se withthe o ther he u sed to o pen the d o o r.Re—cro ss : Asked if she kn ew the nam e Of this e levato r

o perato r o r at a ny time kn ew him , witn e ss replied n o . She

co u ld no t say how lo ng this e levato r o perato r had b een there ;she kn ew tha t he had b een there qu ite a while ; she co u ld no t

specify any special time, b u t she kn ew that he had b e en therefo r several mo n ths ; she se e s him aro u nd the b u ilding ; he

d o e s n o t ru n the e levato r now .

Mo llie Latter, called by the claiman t, te stified that she livesat 29 Grove Street, Bo sto n . She was the wife o f Nathan

Latter. She had b een married to him n in e years in Jan u ary .

She w a s married in Bo sto n . She has three children . Her

hu sb and su ppo rted her. She was living with him ever sinceher marriage . She was n o t su ppo rted in any o ther w ay .

Cro ss-examin ed : Her hu sb and w as always we ll . He waswe ll when he left the ho u se that mo rn ing ; he w a s n o t dizzy,fain t o r sick . She did no t think that he had heart tro u b le .

Asked if he was ever sick in b ed , she replied that he w a s sick ,b u t n o t mu ch “ sometimes head ache or stom ac h, that is all .

”

At the time this acciden t happen ed she was living with herhu sb and . She d id n o t know anything ab o u t the acciden t ;she was sick a nd came home from the ho spital . At that timeshe was living o n Howard Aven u e, Roxbu ry .

Member’

s Findings and Ru lings .

I find that claiman t’ s deceden t was killed o n May 15, 1920,by b e ing cru shed b e tween the w all o f the elevato r we ll and apassenger elevato r in a b u ildin g where he was emplo yed o n the

fifth floor ; that he was killed as he was entering the e levato rfrom the hallway o n the first flo o r to take the e levato r up to .

the fifth flo o r ; that he was o n his way to his place o f employm en t when killed ; that the acciden t happen ed immediate lyprio r to the hpu r when he was to b egin wo rk in the morn ing ;that the bu ild ing was o ccu pied by several tena n ts ; that thee levato r was main tain ed by the le sso r for the u se o f the tenan tsa nd their employee s .I find that it was an implied part o f the co n tract o f hirebe twee n the d eceased a nd the su b scrib er that the deceasedsho u ld b e fu rn ished tran spo rtatio n by e levator servic e in ge ttingu p to and down from the fifth flo o r o f the b u ild ing, o n whichflo o r the su bscrib er’ s plan t was loc ated .

I find that the employees o f the su bscriber u n ifo rmly u sedthis e levato r in rid ing up a nd d own , and that this tran sportation was an incid en t o f the emplo ym en t.E mployee when he received his fatal in ju rie s was on the

d irect way to his wo rk from the street floo r. There was no

d eviation as in the case o f Ro ss v. John Hancock Mu tu al LifeIn su rance CO . , 222 Mass . 560.

The elevato r was no t in the co n tro l o f the su b scriber, b u t

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ne ither were the stairs. Bo th elevator and stairs w ere fo r thecomm o n u se Of the tenan ts of the b u ild ing, and employeeswere invited to u se either. It w as m o re feas ible to u se the

elevato r in ge tting from the first floo r to the fifth floo r, and theelevator w a s main ta in ed fo r the pu rpose fo r which this employeewas u sing it ; it was there fo r the u se o f employees of tenan ts ,a nd d eceased was an employee of the tenant Of the fifth flo o r.

Su nd in e’

s Case, 218 Mass . 1 .

At the time o f the acciden t employee w as n o t on the elevato ro n bu sin ess o f his ow n , b u t as a n in ciden t o f his employmen t inhis right as an employee .I find a nd ru le that the in ju ry and d eath of employee o c

cu rred in the co u rse o f and aro se o u t o f his employmen t.I find that claiman t is the widow o f the d eceased employee,

was living with him at the time of his in ju ry a nd death, and

is therefo re co n clu sively presumed to have been who lly dependent u po n him fo r Su ppo rt.Under these findings and ru lings claiman t is en titled to c om

pensa tio n from the in su rer at the rate Of $10 a week fo r threehu ndred and n inety weeks from May 15, 1920, and to the imm ed iate paymen t o i $100 fo r

‘ fu neral expen se s o f the d eceasedemployee .

FRANK J . DONAHUE .

Filed Wed nesday, Sept. 29, 1920, at 9 A .M.

FIND INGS AND DE CISION OF INDUSTRIAL ACCIDENT BOARD .

The in su rer having filed a claim fo r review, the Indu strialAccid e n t Bo ard heard the parties at Bo ston, Mass . , o n Thu rsd ay , Oct . 21 , 1920, at A .M.

Presen t : Messrs . Kennard (chairman), D ickin so n , Parks,Gleaso n and Co gswe ll .Appearance s : Irving F. Carpen ter, E sq . , fo r in su rer ; J . L.

Wiseman , E sq . , fo r d ependen t .Qu e stio n : Whe ther the in ju ry aro se o u t Of and in the co u rse

o f the employm en t.The repo rt o f the Bo ard m ember co n tain s all the material

evid en ce .

The Indu strial Acciden t Bo ard , o n review, afi rm a nd ado pt

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248

Dry Go o d s Co . , 62 Neb . 270; Shaft v. Carey, 107 Wis . 273 .

Se e a lso McCa ll v. New Yo rk Life In su rance CO ., 201 Mass.

223 .

Altho u gh the e levato r w as no t the o nly me an s o f acc ess provided fo r a n employe e , it was main tained fo r su ch u se a s w a s

reaso nab ly incid enta l to the employment . When u sing it ingo ing to a nd from wo rk a n employee o f Ko nd a z ia n was in a

place whe re he had a right to b e as against a land lo rd and asa gains t the employer , who co u ld have b e en fo u nd to haveau tho rized its u se . This right w a s d epende nt u po n and aro sefrom the emplo yme n t , a nd the risk o f in ju ry while u sing thee leva to r was an incid e nt a nd hazard o f the employment . An

in ju ry to a wo rkman m ay arise o u t o f and in the co u rse o f his

employm e nt eve n if he is n o t actu a lly wo rking at the time .

”

Vo n E tte’

s Case , 223 Mass . 56 , 61 .

The ca se is within the prin ciple o f Su nd ine’

s Case , 218 Mass .1 , O

’

B rie n’

s Case , 228 Ma ss . 380, O’

To o le’

s Ca se , 229 Mass .165, 167 , and Halle tt ’s Case , 232 Mass . 49 . Se e White v.

E . T . Sla ttery CO . , 236 Mass . 28. It is d istingu ishable fromFu m ic ie llo

’

s Case , 219 Mass . 488, Ro u rke’s Ca se , 237 Ma ss .

360, a nd Be ll ’s Ca se , 238 Ma ss . 46 , where in ju rie s were re

c e ived a t place s n o t co nnected with and no t in legal e ffect apa rt o f the premise s whe re the employe e s were employed .

We d o n o t fix a ny exa ct line Of d emarcatio n , as e ach casemu st b e d ecid ed o n applicatio n o f the go vern ing principle s tothe facts invo lved .

D ecree afi’lrmed .

Filed April 7 , 1921 .

CASE No . 7387 . (238 Ma ss .

MARY CHISHOLM, WIDOW AND DE PE ND E NT OF DANIE L J .

CHISHOLM, Employee .

TOWN OF LE XINGTON , E mployer.

E MPLOYE RS ’ LIABILITY ASSURANCE CORPORATION , LTD .,Insu rer .

APPE AL .

The en try o f a case in the Supe rio r Co urt a fte r the expira tio n o f ten days from the

giving o f n o tice by the Industria l Acciden t Bo ard o rdin a rily wo u ld n o t haveco n fe rred upo n an y pa rty a right o f a ppe a l from the de cisio n o f the Bo a rd ;the o n ly fun ctio n o f the court under such circu m stan ce s comm o n ly is to e n

249

fo rce the finding o f the Bo a rd u n le ss there is lega l reaso n to the co n trary. I f,in fa ct , n o n o tice o f the awa rd had bee n given to the o the r pa rty to the c o n

tro versy , it would b e m a ni festly just fo r the Supe rio r Court to re fuse its a id

in en fo rcing such awa rd un less , o n an inspe ctio n o f the who le re co rd , it w asfree from ha rm fu l erro r.

NOTICE OF COMPE NSATION AWARD .

Unde r the ge n era l prac tice o f the co urts , n o tice s a re to be se n t to the a tto rn eyappea rin g o f re co rd , an d where a m o tio n to re comm it a Wo rkm an

'

s Com pen satio n case to the Industria l Acc iden t Bo a rd w as suppo rted by an afi d avit tha tthe n o tice o f the award w as sen t to co un se l appe a ring tem po ra rily , in ste ad o f

to co un se l o f re co rd , there w as n o erro r o f law in finding tha t such n o tice w a s

n o t in com plia n ce with the sta tute .

STATE ME NT OF AGRE E D FACTS .

Where it is sta ted in the re co rd tha t the partie s had agre ed tha t the de ceden t w a s

an em ployee o f B , an in depe nden t co n tra cto r , pe rfo rm ing wo rk fo r the fireengineers o f the town , su ch agre em en t m ay pro perly b e co n strued to m ean

tha t B w as in ge n era l an indepe nden t co n tra cto r , an d n o t tha t as to the particular wo rk in que stio n he w as such ; o therwise the depen den t would haveagreed he rse lf o u t o f court a t the start , an d the lo n g hearing which to o k pla cewitho ut o bje ctio n would have bee n an idle was te . C la n cy ’

s Case , 228 Mas s .

3 16 .

FIND INGS OF FACT .

Whe re the single m em ber an d the Bo ard o n Review m ake certa in findings o f fa ct ,am o ng them be in g tha t the deceden t w as an em ployee o f the town , an d tha to n e w ho furn ished his se rvices an d len t his wo rkm en , in cludin g the de c eden t ,to the town w as n o t an indepe nden t co n tra cto r as to the particu lar wo rk inhand , the qu estio n is n o t wha t co n clusio n w e should have re a ched o n the

eviden ce , but whe ther the de cis io n o f the Bo a rd is ra tio n a lly po ssible underthe law . Pigeo n ’

s Case , 216 Mas s . 5 1 ; Pa ss’

Ca se , 232 Mass . 515 .

E MPLOYE R.

The te st to de term in e which o f differen t perso n s is the em ployer o rdin a rily is , w hohas dire ctio n an d co n tro l o f the em ployee , a nd to whom do e s he o w e Obedien cein re spe ct o f the particula r m a tte r in hand . G en e ro us v. Ho sm er , 216 Mass .

26 ; Shepa rd v. Ja co bs , 204 Mass . 1 10. See Scribn e r’s Case , 23 1 Mass . 132 ;

Ha sty v. Sears , 157 Mas s . 123 ; Berry v. N ew Yo rk Cen tra l dz Hu dso n Rive rR.R. , 202 Mass . 197 ; D utto n v. Am esbury Na tio n a l Ban k , 181 Mass . 154

M cA llister’

s C a se , 229 Mass . 193 .

E MPLOYE E .

The existen c e Of the gen e ra l re la tio n o f m aste r a n d se rvan t be twee n B an d C (d e

ceden t) did n o t exclude a like re la tio n be tween the town an d C (de ceden t) tothe exten t o f the pa rticula r wo rk in whi ch the la tter w as e ngaged a t the tim e

o f his in ju ry . Upo n this po in t , in view o f the fa cts fo und , the case is withinthe autho rity o f Jo hn so n v. Bo sto n , 1 18 Ma ss . 1 14 . It is distingu ishable fromthe prin ciple illustra ted by Pigeo n '

s Cas e , 216 Mas s . 5 1 ; C lan cy's Case , 228Mass . 3 16 ; Win slow'

s Cas e , 232 Mass . 458 ; Cen tre llo’

s Case , 232 Mass .

456 , an d sim ilar de cisio n s “

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RE PORT OF MEMBE R OF INDUSTRIAL ACCID E NT BOARD .

The memb e r o f the Indu strial Accid e nt Bo ard appo intedu nder the provisio ns o f Part III , sectio ns 5 a nd 7 , chapter 751 ,Acts o f 191 1 , a nd ame ndme nts there to , having he ard the partiesin the abo ve-named case at the Se lec tm en

’

s Room , Town Ha ll ,Le xington , Mass . , o n Friday, Jan . 3, 1919, at 10 A .M. , repo rtsas fo llowsAppearance s : Timo thy Co ll ins, E sq . , fo r claimant ; Robe rtL . Ryder, E sq . , fo r town ; Sawyer, Hardy, Sto ne Mo rriso n

(Gay Gleaso n o f co u nsel) for insu rer .

It was agreed that Dan iel J . Chisholm rec eived a perso nalin ju ry in the co u rse o f and a rising o u t o f his employmen t o nAu g. 8, 1918, which re su lted in his death ; that Dan ie l J.

Chisholm was a n employee o f Lo u is W. Bills ; that Lo u is W.

Bills was an ind epende nt co ntractor performing wo rk fo r theengineers of the fire departmen t o f the town o f Le xingto n ;that the average weekly wages o f Danie l J . Chisho lm were

a we ek ; a nd that the town of Le xingto n had acceptedthe provisio ns o f chapter 807 o f the Acts o f 1913 .

Qu estio n s : (1) d ependency, and (2) whether the claimant’

s

decede n t, as the employee o f an independ e nt co n tracto r, perfo rming work fo r the town , is embraced within the pro visio nso f chapter 807 o f the Acts o f 1913 .

Mary Chisho lm testified that she is the widow o f Daniel J.

Chisho lm , that she w a s m arried to him o n Ju ne 14, 1893, a ndthat at the tim e o f his de ath they were living to gether at No .

62 Be aco n Stree t , Arlingto n . She and fo u r childre n su rviveher hu sband . The children are Margaret A .

,aged twe nty-fo u r ,

who at the time o f her fa ther ’s d eath was employed by the

State Highway Commissio n ; Angu s J aged twe nty-tw o , .whois in the service in Fra nce ; Lo re tta A . , aged seven tee n , who at

the time o f he r father’s d eath was emplo yed by the Ho odRu bb er Company at Watertown ; and Ann ie K . , aged fiftee n ,who is attend ing high scho o l . Her hu sb and had been wo rkingfo r Mr . Bills ab o u t a year and a half .William S . Sc amm an ,

ca lled by the claimant , te stified thathe is chairman o f the bo ard o f se le ctme n o f the town o f

Le xingto n , a nd a member o f the bo ard o f e ngin eers o f the

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252

pen satio n in su rance , b u t that the sewer, water and cemete ryd epartm en ts were in su red at this time . The town own s n o

po le s, b u t ha s the right to place o n e cro ssba r o n every po leowned by the street railway company. (At this po in t co u nse lfo r the widow agreed that B ills w a s an independen t co n tracto r.)Charle s A . McLe llan , called by the claiman t, testified that

he lives at 330 Lexingto n Street, Au bu rndale , and is a linefo rem an employed by the Middle sex Bosto n Street Ra ilwayCompany . On the day Of the acciden t he go t to that po le ju stin time to see Chisho lm in the ac t o f falling. The fire alarmw ire s we re carried o n the top cro ss arm o f that po le. Mr.

Chisho lm was very n ear the top'

o f the po le a nd was above thestree t railway wire s . The cu rren t o f the street railway c ompanywas o n .

Geo rge A . Hill, called by the claim an t, testified that he livesat 229 Au bu rn Stre et, Au bu rndale , and is su perin tenden t o f

pow er and wire s fo r the Midd le sex Bo sto n Stree t RailwayCompany . He d id n o t see the acciden t. He was fee taway at the time . The fire-ala rm wire s were carried o n the

top cro ss a rm o f that po le . There were tw o wires, a nd thentw o mo re wires o n a bu ck a rm from which they ra n acro ss thestreet to a fire-alarm b ox. The stree t railway c ompany give sthe town the right to u se o n e a rm o n each po le , a nd the townc a n u se the po le to fix their wire s . That po le is owned by theMidd le sex Bo sto n Street Railway Company. The town ’ sright to u se the po les is derived from the fran chise gran ted tothe street railway company. In the franchise the town re servesthe right to u se o n e

“ gain o n each po le fo r the town wire s .A “

ga in” is the c u t in the po le in to which the cro ss a rm fits .

Cro ss-examined by co u n se l fo r the town , Mr. Hill testifiedthat the co n tro l exercised by the town o ver the po le s co n sists inthe right to be o n the po les at any time to fix the town wires .

There were tw o sets o f wires o nly o n this pole , the fire~a larmwire s and the street railway company wires . The town c o n

tro ls that part o f the po le where its “ gain ” is re served .

The wo rkmen ’ s com pen satio n po licie s o f the town , in trod u c ed in evid en ce , showed that at the time o f the d eath ofChisho lm the employees Of the water d epartmen t o f the townw ere covered by w o rkm en

’s compe n sa tio n in su rance in the

253

E mployers ’ Liab ility Assu ran ce Corpo ratio n , Ltd . ; the em

ployee s Of the sewer departmen t in the same company ; and

the em ployee s Of the cemetery d epartmen t in the same c om

pany. The employe e s in the halls, lib rarie s and scho o ls o f thetown were covered by a po licy in the Lo nd o n Gu aran tee and

Accid en t Company, Ltd .

Member’

s D ec ision .

Upon the evid ence in this case I find that the cla im an t ,Mary Chisho lm, is the wid ow o f Dan ie l J . Chisho lm , the

d eceased employee , and was living with him at the time o f his

dea th ; that Dan ie l J . Chisho lm was an employee Of o n e

Lo u is W . Bills ; that Bills was a n independ en t co n tra cto r em

ployed by the bo ard Of fire engin e ers o f the town o f Lexingto n ;that Chisho lm ’ s d eath re su lted from a perso n al inju ry rece ivedin the co u rse Of and arising o u t o f his emplo ymen t o n Au g. 8,

1918; that his average we ekly wage s were tha t thepo le o n which he received the in ju rie s which re su lted in his

d eath was own ed by the Midd le sex Bo sto n Street RailwayCompany ; that said po le carried the wire s o f the street railwaycompany, and ab ove the wire s were the fire-ala rm wire s Of thetown o f Lexingto n ; and that the right to carry the town s ’

wire s o n this po le and to u se the po le in fixing said W ire s wasd erived from the re servatio n in the fran chise gran ted the

Midd le sex Bo sto n Stre e t Ra ilway Company by the town o f

Lexin gto n .

The po in t in issu e in this case is whether the employee o f a nind ependen t co n tra cto r is en titled to compen satio n u nder theprovisio n s o f chapter 807 o f the Acts o f 1913 . The liab ilityimpo sed u po n su b scrib ers to pay compen satio n to the employee so f a n ind epend en t co n tracto r is impo sed by sectio n 17 o f Pa rtIII o f chapter 751 o f the Acts o f 191 1 . I ru le as a matter o f

law that said sectio n a nd the liab ility impo sed there in haven o application to chapter 807 o f the Acts Of 1913, and thatthere fo re the claiman t is n o t en titled to compen satio n .

FRANK J . DONAHUE .

Filed Tu e sday, Jan . 7, 19 19, at 9 A .M.

254

RE PORT OF MEMBER OF INDUSTRIAL ACCIDE NT BOARD .

The memb er o f the Indu strial Acciden t Bo ard appo in tedu nder the provisio n s o f Part III , sectio n s 5 and 7, chapte r 751 ,Acts o f 191 1 , and amendments thereto , having heard the partie s in the ab ove-named case at the ro oms o f the Indu strialAccide n t Bo ard , State Ho u se , Bo sto n , Mass . , o n Tu esday, Feb .

25, 1919 , repo rts as fo llows :Appearance s : Timo thy Co llin s, E sq . , fo r claiman t ; Ro b e rt

L . Ryder, E sq . , fo r town'

; Sawyer, Hardy, Sto ne Mo rriso n

(Gay Gleaso n ,E sq . , o f co u n se l) fo r in su rer.

Qu estio n s : (1 ) Whether the claiman t’

s deceden t was in the

service o f the town “u nder a ny employment o r co n tract o f

hire,” within the provisio n s Of St . 1913, c . 807, 6 ; o r (2)

whe ther, he being an employee Of a n independent co n tracto r, thetown is liab le to pay his widow compen satio n . The evidenceis co ntained in the repo rt Of the hearin g Of Jan . 3, 1919 , and

this repo rt, the case having b een re ferred b ack, o n mo tio n o f

claiman t, fo r the hearing Of fu rther evidence .

Repo rt of the E viden c e .

Lo u is W . Bills , called by the claiman t, te stified that he livesat 73 Hanco ck Stre et, Lexingto n . He is a fire-alarm electrician .

He rememb ered the heavy sto rm aro u nd 8 O’clo ck o n the eve

n ing Of Au gu st 7 . On the fo llowing day, after the sto rm , he

d id som e wo rk fo r the town o f Lexingto n . On the mo rn ingOf Au gu st 8 they called u p from the fire statio n a nd to ld himthat the lin e s were down from the sto rm ; he co u ld n o t sa ywhe ther Mr. Co o k o r Mr. Mo akley called ; he tho u ght it wasMr. Mo akley . Q .

“Co u ld yo u state , to the b e st o f yo u r re co lle c tio n , the co nversatio n yo u had with him over the te lepho n e ? ” (Mr. Ryder Ob jected, stating that Mo akley was anem ployee o f the fire departmen t at that time , a nd he did n o t

see how co nversatio n witn e ss had with Mo akley was material .Mr. Donahu e stated that Mr. Co llin s had b e tter Show Mo akley’s au tho rity .) He gu e ssed that he knew Mo akley fo r somefifteen years . Mo akley was captain o f the fire departmen t a tthat time . He had rece ived o rders from Mo akley b e fo re , andin co n sequ ence o f Mo akley

’

s o rders he had perfo rmed service s

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ley ’s directio n that this first wo rk that they d id was su ppo sedto be attended to . Mo akley said that the fireman called up,

said that this ta pper was o u t o f order, b u rn ing up in the

ho u se, and wished it removed . As a resu lt of that co nvemtio n he wen t in and to ok o u t the ta pper. The ta pper is theb e ll in the firem en

’

s ho u se that ru n s Off from the fire-alarmsystem . That tapper was situ ated o n Bedfo rd Stree t, in Me

C lellan ’s ho u se . Moakley was presen t at the time it was re

moved ; Mo akley wen t in to the ho u se with him . Chisho lm d id

n o t go in the ho u se with him ; Chisho lm had n o t perfo rmed any

lab o r up to that time. The n ext wo rk that he d id after hele ft this ho u se w as to ta ke o u t the tapper in Mr. Griffin ’

s

ho u se , the ho u se ab ove McCle llan s’

. Mo akley a nd he wen t inand remo ved the tapper ; that to o k twen ty m in u tes o r half a nho u r. Du ring that time mo st Of the wire s were down in thatsectio n . The next wo rk was this particu lar b u sine ss whereChisho lm was killed ; that w as cu tting o u t the part b eyo nd ,fixing the part down in this particu lar po le . This w a s situated pro b ab ly a qu arter o f a mile from the ho u se in which helast fixed the tappe r . He drove there in a machine ; Mo akley

'

rod e with him . In re spo n se to whether Mo akley to ld him thattha t was to b e fixed in particu lar, witne ss replied tha t in the

mo rn ing conversa tio n that was part o f it . Q .

“When yo u

le ft the ho u se it w a s at his su gge stio n that yo u wen t to fixthis particu lar de fe ct where M . Chisho lm w a s in ju red ? ” A .

“ I said it was at tha t wo rk , b u t no t at that spe cia l po le . He

was wo rking there ab o u t ten minu te s b e fo re Chisho lm w as in

ju red . Mo akley w a s with them all the time . Mo akley wo u ldappa rently b e 50 fe e t o n a n a ir line from where Chisho lm w a s

wo rking , sometime s ne are r and pro b ab ly sometime s fu rther away,o verlo o king the wo rk . Q . And did he have powe r to c o n

tro l yo u a t a ny time ? (Mr . Ryder o b je cted ; su sta ined .) Heco u ld n o t say o ffhand whe n he perfo rmed wo rk fo r the town o f

Le xingto n prio r to Au g. 10, 1918; n ow a nd the n . To the b e sto f his reco llectio n it w a s pro b ab ly within a month’s time , andb e fo re that ano ther mo n th ’s time . The wo rk wo u ld pro b ab lytake e ach time from o ne to three o r fo u r d ays . The natu re o f

the wo rk du ring the prio r time was repairing the wire s , cu ttingtree lim b s Off o f the wire s, a nd su ch wo rk o n the o u tside . He

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did no t ever have a ny expre ss co n tract with the town to d o

the ir wo rk fo r so mu ch a mo nth, so mu ch a ye ar o r so mu cha we ek. There is no t a regu lar u n io n wage in his lin e o f

b u sin e ss fo r m en to d o tha t . He charged the same price fo rthe lab o r . There is a u su a l price fo r tha t so rt o f Wo rk in hislin e o f b u sine ss, a nd that is the wage he charged . Whe n hemade the b ill to the town he wo u ld itemize the b ill , so mu chfo r e ach m a n a nd so mu ch fo r himse lf . If the wo rk w a s c om

pleted the mid d le o f the d ay his m e n wo u ld ce ase . Q .

“D id

the town o f Lexingto n o r its agen ts have au tho rity o r power tod isco ntin u e the wo rk at a ny time ?

”

(Mr . Ryd er Ob jected .

Mr . Do nahu e sta ted that that w a s a fact fo r him to find .)Mo akley a t the time tha t Chisho lm w a s in ju red o n this po lea nd killed w a s pro b ab ly 25 o r 50 fe e t away from it, o verlo okingthe wo rk ; b y

“o verlo oking,

”sta Iid ing there a s a m a n wo u ld

if he w a s o verlo o king any wo rk, d o ing a ny lo o king o n a nd

see ing what w a s d o ne . He d id n o t know as Mo akley ha d a ny

co nversa tio n with Chisho lm b e fo re Chisho lm we nt up the po lea ny mo re than pa ss the wo rd o f day with Chisho lm ; asked ifhe co u ld rememb er anything Mo akley said in a gen era l w ayto anyb o dy in regard to tha t wo rk while he was there du ringthat ten minu te s , witn e ss replied that it was pretty hard to

reca ll the facts six mo n ths b a ck . It was at the d irectio n o f

Mo akley that they we n t to the spo t . He w a s right there withMo akley whe n Chisho lm we nt u p the po le ; he w a s ta lkingwith Mo akley . They were b o th o b serving Chisho lm o b

serving the wo rk in the vicin ity . While Chisho lm w a s fixingthe wire o n the po le he might have b ee n talking with Chisho lm ,

Powe rs o r Mo akley ; he a nd Mo akley were pro b ab ly in c o n

versatio n ; he wo u ld no t say what he was d iscu ssing at thattime ; they might have talked ab o u t the sto rm the n ight b efo re cau sing this tro u b le . It was “ pretty hard to re call today if they sa id a nything e lse . He d id n o t send Chisho lm up

that po le ; n o b o dy se n t Chisho lm u p that po le . Whe n he

arrived there first at Bed fo rd Stree t Mo akley said tha t if theyco u ld clo se the l ine at that po int the re , they co u ld keep the

circu it d own town wo rking a nd c u t o u t the part that w a s b ro kend own . Asked to repe at the la st an swer witn e ss stated tha tMo akley sa id that if they co u ld pu t a jumper o n the line at

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that po in t , they co u ld clo se the circu it d own town a nd c u t o u t

the b re akd own ab ove . Q .

“Wa s it in co n sequ e n c e o f tha tta lk tha t Mr . Chisho lm we n t Up the po le ? ” (Mr . Ryd e r o b

je c ted , a nd Mr . Do n ahu e sta ted tha t the Ob jectio n w a s su s

ta ined .) It w a s a fter the ta lk that Chisho lm we n t Up the po le .

Q .

“D O yo u know Of yo u r ow n kn owledge who d id o rd e r him

Up the po le ?” A .

“ I d o n ’t b e l i eve any o f u s .

”

(Mr . Ryd e r“Ye s o r n o , Mr . A .

“NO .

” He d id n o t reca ll wha tMo akley sa id to Chisho lm while he w a s o n the po le . Mo akle ymight have spo ke n to Chisho lm (to which Mr . Ryd e r Ob jecte d ,a nd Mr . Do nahu e stated tha t the o b je c tio n w a s su sta ined).Mo akley d id n o t spe ak to Chisho lm . He spo ke to Chisho lm ;Mo akley w a s with him a t the time . He w a s d iscu ssing the

wo rk a t the time tha t he spo ke to Chisho lm . It w a s “ prettyha rd

”to reca ll the co nve rsa tio n six mo n ths b a ck . TO the b e st

o f his reco llectio n , a t the time tha t Chisho lm w a s o n the po le ,Mo akley sa id tha t if the c irc u it w a s c lo sed there to repa ir thelower e n d . He to ld Chisho lm in Mo akley

’

s pre se n c e to takeca re Of himse lf o n that particu lar po le . He co nveyed to Chisho lm wha t Mo akley to ld him b e fo re Chisho lm we n t up the

po le . He d id n o t se e Mo a kley talking with Chisho lm a t a ll ;

from the time tha t they sta rted o u t“he might have sa id some

thing, b u t o n tha t po le he d id n o t . Chisho lm w a s pre sen twhen Mo akley co nveyed tha t in fo rma tio n a b o u t fixing the

circu it to him . He d id n o t re ca ll if Mo akley sa id a nythinge lse whe n Chisho lm a nd he were pre se n t . Whe n Mo akleyhad sta ted tha t to him a nd Chisho lm , Chisho lm we nt up the

po le a nd d id the wo rk . He saw Chisho lm go Up the po le .

He d id n o t he a r Mo akley te ll him to go Up the po le a t thattime . He d id n o t te ll Chisho lm to go up the po le . Afte rtha t co nversatio n with Mo akley , witne ss w a s overlo o king thewo rk . He had n o fu rther co nve rsa tio n with Chisho lm a fterMo akley a nd he a nd Chisho lm had the ta lk u n til Chisho lmwe n t Up the po le . As fa r a s he co u ld sta te , the la st wo rd tha tChisho lm heard in regard to this ma tter w a s from Mo akleywhile the thre e o f them were pre se nt . He had n o reco llectio no f Mo akley spe aking to Chisho lm a fter tha t . The o n ly c o n

versatio n that he had with Chisho lm While he w a s o n the po lew a s to lo o k o u t fo r himse lf ; he might have sa id some thing e lse ;

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whether they exercised it o r n o t is o n e Of the fac ts b e aring o n

it, b u t that it was materia l whe ther he was engaged in a n in

depe nden t calling .) He ha d d o n e similar wo rk fo r the city Of

Qu in cy, Am e sb u ry, Hampto n Beach, New Hampshire , Danvers ,Salem ,

Che lsea, Revere , Mayna rd , Ayer, practically severa ltown s . He had b ee n engaged in this kind o f wo rk fo r himse lffo r fo u r years . He had o n e m an Off a nd o n . He had do ne

wo rk fo r the town o f Le xingto n with the Gamewe ll Fire AlarmTe legraph Company prob ab ly a numb er o f ye ars , a nd since hewe nt in fo r himse lf, pro b ab ly a ye ar a nd a ha lf . Ab o u t fo u ryears ago he wen t into b u sine ss fo r himse lf . He had b een d o ingwo rk fo r the town o f Le xingto n e ither as a n employe e o f the

Gamewe ll Company o r fo r himse lf fo r pro b ab ly fifte e n years .He co nsid ers himse lf tho ro u ghly compe te n t to hand le a fire

a larm jo b o f a ny kind . If he were to ld that there was a d istu rb a n c e o r a b reak in the fire-alarm system in the town o f

Le xingto n , a nd we re to ld to repair it , he wo u ld fe e l capab le o f

d o ing that wo rk witho u t a ny d ire ctio n from a nyb o dy e lse .

(Mr . Co llin s o b j ected , a nd Mr . Do nahu e stated that witne ssmight te stify to tha t .) He d id have a w ritte n co n tract withthe town o f Le xingto n fo r the switchb o ard , in sid e wo rk , hetho u ght a ye ar ago in Ju ly . He tho u ght that he had a copyOf tha t co ntract . He tho u ght tha t he wo u ld b e willing to produ ce it . (Mr . Do nahu e stated tha t he d id n o t think this c o ntra ct w a s materia l . Mr . Ryd er said tha t he tho u ght wha t w itn e ss ’ co u rse o f co nd u ct w a s with the town fo r the la st ye a ra nd a half, anyway , o r fo r the last fo u r years , since this m a n

has b e e n engaged wo rking o n his ow n ho o k, emplo ying his o w n

m en , was ma terial . Mr . Do nahu e fu rther sta ted tha t witne ssha s te stified that he had a written co n tra ct fo r the switchb o ardJu ly, 1917, a nd d id no t think that a nything fu rther o n thatw a s material .) Since Ju ly, 1917, he had d o ne wo rk fo r the

town o f Lexingto n in co n ne ctio n with that fir e-alarm system ;he reca lled pro b ab ly half a do z e n time s . He had no writtenco ntract with the town Of Lexingto n , its b o ard o f se le ctme n o r

b o ard o f fire e nginee rs a s to that wo rk a ny more tha n n o tifying him tha t they wished su ch wo rk d o ne . Captain Mo akleywo u ld ge nerally n o tify . Q . Mr . Mo akley ha s b een captainever since yo u have b e en wo rking fo r the town o f Le xingto n ? ”

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A . Why , b e ha s b e en this la st year a nd a half, ye s . Mo akley wo u ld call him u p a nd say the defin ite wo rk he wished do n e ,(Mr . Co llin s , qu e stio n ing Mr . Ryd er whethe r he mea n t thisparticu lar ca se , Mr. Ryd er re spo nded , any o ccasio n . Mr . D o n

ahu e sa id tha t he tho u ght that was very materia l .) If it wereemerge ncy wo rk Mo akley wo u ld call him , o r if som e n ew wo rkwanted to b e d o ne Mr . Taylo r, the chie f, wo u ld ca ll him . Q .

“What wo u ld they say to yo u a t tho se time s? ” (Mr . Co llin sasked if the co nversa tio n s tha t to o k place in o ther co n tra ctswere ma teria l . Mr . Do nahu e sta ted that if the agreeme nt isthe re su lt o f co nve rsa tio n , he co u ld show the co nversatio n , tha tit is no t he arsay then .) Du ring the la st ye ar a nd a ha lf , o n

the seve ra l o ccasio n s whe n he w a s ca lled Up o n fire-a larm wo rk ,if Taylo r wa nted something n ew d o n e , Taylo r wo u ld info rm himwhat he wa nted d o ne a nd he wo u ld go o ver it and d o it .When the jo b w a s fin ished he wo u ld rend er his b ill to the town .

Q .

“D id Mr . Taylo r ever come aro u nd , o r Mr . Mo akley , a nd

dire ct yo u r employe e s how they sho u ld d o yo u r wo rk? ” (Mr .

Co llin s Ob jected , a nd Mr . Do n ahu e stated that witne ss mightan swer that .) A .

“At time s they wo u ld . They wo u ld d ire cthis employe e s what to d o . He wo u ld have m en there and Mo akley wo u ld come o u t o cca sio n a lly a nd lo o k o ver the wo rk to se e

what they were d o ing . Mo akley w a s capta in in the fire ho u se ,a nd he wo u ld have to pick his time to go o u t ; Mo akley w a s no to u t o n the stre et a ll the time , a nd Mo akley wo u ld go o u t a nd

d ire ct them ; he , himse lf, w a s n o t a lways there . He wo u ld le this m e n go d own there to wo rk, and Mo akley wo u ld take careo f them . He wo u ld send his employees down sometime s whe nhe wo u ld no t go , and Mo akley wo u ld go o u t and show themthe wo rk that he wa nted do n e ; it d id n o t requ ire his time .

He wo u ld rend er his b ill to the town o f Le xingto n fo r it . . On

this pa rticu lar o cca sio n , whe n Mo akley ca lled him up, Mo akley sa id in su b sta n ce tha t the Wire s were o u t o f o rder a nd

wa n ted witne ss to fix them . He to o k his employee s a nd wentUp to se e wha t the tro u b le was in o rder to fix it . Mo akleywent up with them to where the wo rk w a s b e ing do ne a nd to ldhim o r po inted o u t certa in things that he co nsidered shou ld b edo ne . There w a s a tapper in e ach ho u se . Mo akley wan tedhim to take them o u t . There is o n ly o ne way to take them

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o u t . Mo akley d id n o t say to take o u t this w ay a nd n o t to

take o u t that w ay . Mo a kley said ,

“There is a tappe r wan tsto come o u t , Mr . Bills . ” E ithe r he o r his m e n we n t in a nd

to o k them o u t . Mo akley said to him tha t if he clo sed u p the

gap it wo u ld pu t the circu it d own town in o rd e r so that heco u ld go ahe ad o n the re st o f it ; he wen t ahe ad and d id tha t .

Q . Mr . Mo akley d id n ’t d irect yo u a s to how yo u sho u ld d othat wo rk? ” A . I d o n ’t say he d irected the m e n perso na lly ;he might have talked to m e a nd I ta lked to the m e n .

” Mo akley is an e lectricia n a nd he knew tha t Mo akley ha d b e e n in theb u sin e ss fo r some ye a rs . He knew tha t Mo akley w a s capab leo f te lling what was the matter with the e lectric wire . Chisho lm a nd Powe rs were with him that d ay . They were b o th inhis emplo y . Chisho lm had b ee n in his emplo y fo r a ye a r o r

a b o u t a ye ar and a ha lf , o ff a nd o n ; Powers , fo r a Co u ple o f

mo n ths . They were b o th e lectricia n s . The particu lar wo rktha t Chisho lm w a s d o ing a t the time tha t he was killed w a s

pu tting o n this jumper to clo se tw o wire s . The wire o f the

po le s fe ll o ver a b o ve there a nd the wire s we re all mixed Up.

Chisho lm had b e e n wo rking o n e lectrica l wo rk fo r some thirtyye a rs . He co nsid ered Chisho lm a capab le m a n . Chisho lm hadwo rked o n Lexingto n ra ilro ad wo rk, e lectric lights , fire-a larmwo rk, a nd w a s co nsid ered a go o d capab le m an fo r u pward s Ofthirty-five ye a rs . Whe n Chisho lm wen t Up this po le to clo sethis gap he w a s n o t give n a ny d ire ctio n s by Mo akley a s to

how to d o the wo rk . Q .

“And yo u d id n

’t give a ny d ire ctio n s

yo u sav, b e fo re he we nt up the po le ? ” A . Simply spo keab o u t pu tting a jumper the re . He co n sid ered Chisho lm c a

pab le o f pu tting a ju mper o n ; that is the re a so n tha t he d idn o t say a nything to Chisho lm ab o u t ho w to d o the wo rk .

There is no u nd erstan d ing b e twe e n him a nd the town o f Le xingto n a s to wha t charge s he sho u ld make o r how he sho u ld e nter

his charge s . He charge s so mu ch a d ay fo r himse lf, a nd so

mu ch fo r a m a n . He charged a d ay fo r the m e n o n thisparticu lar jo b . He paid his m en a d ay , the ir c ar fare s ,a nd the ir d in n ers mo st o f the time . He cha rged $6 a d ay fo rhimse lf b eca u se he w a s there in the capacity o f an expert . He

d id the in sid e wo rk ; the lin eme n d id the o u tside wo rk ; he d idn o t wo rk o n the o u tsid e . By “ in sid e wo rk ” he me ant instru

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repair wo rk ; there was co n siderab le damage, b u t there was no ta large am o u n t Of line wo rk to b e do ne. It to ok ab o u t fo u rdays to fin ish the amo u n t Of wo rk ; they were n o t wo rking o n

that lin e from Au gu st u ntil a mo n th ago . He d id o ther wo rkdu ring that period in Bristo l, Co nn . , We sterly, R. I. , Qu incy,Mass . several place s . Mo akley wo u ld direct the m en whenhe was n o t there , and the m en repo rted to Mo akley in the

mo rn ing. Mo akley is an experienced m an . While he was awaydu ring this jo b Mo akley co n tro lled and d irected the wo rk . Ifhe were away Mo akley wo u ld co n tro l his m en . Su b sequ en t toChisho lm ’ s death this wo rk to ok fo u r days, at least, to fix Up;

he was there this fo u r days ; he , himse lf, fin ished the wo rkwith Mr. Powers . He was there du ring all the wo rk. Hem ight have spoken to Mo akley that same eve n ing that b edisco n tinu ed the wo rk, o r the n ext day ; he did n o t recall .When he wo u ld b e away o n the o ther wo rk he wo u ld re ly o n

Mo akley. Mo akley had a right to exercise co n tro l o ver himo n this particu lar jo b if he saw fit. Mo akley d id exerciseco n tro l over him . Mo akley co u ld o rder him to go o n a c er

tain po le a nd fix it. Mo akley, b eing an experien ced lin ema n ,

cou ld te ll him how to fix a certain jo b . Mo akley co u ld tellhim ju st how he wanted the wo rk do n e . Mo akley co u ldo rder him to disco n tinu e the wo rk at any time . Mo akleycou ld d o the same thing with Chisho lm while witn e ss waspre sen t. He was w o rking o n property o ver which the town o f

Lexingto n had ju risd ictio n . Mo akley had in the past to ldhim to d o certain wo rk, a nd directed him to go to ce rtainplace s to wo rk. Mo akley ha s to ld his m en the mann er in whichhe wan ted that w o rk do ne, and ha s to ld him the mann er inwhich that wo rk was to b e do n e ; as far as he kn ew the m en

have always do n e it.Re—cro ss : Acting as su perin tenden t Of the fire alarm at that

time , Mo akley had the right to te ll him where the wo rk was tob e do ne . That is all Mo akley u nde rto ok to d o to te ll himwhere the jo b was a nd what was to b e do n e . Mo akley wo u lddirect the m en . Mo akley had n o right to discharge Chisho lmfrom witne ss ’ employ ; he co u ld discharge Chisho lm from the

town ’s employ . He co u ld say, I do n ’t wan t that m a n o n

town wo rk,”

and witn ess wo u ld take him Off. MO akley

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showed them the jo b s to b e do n e when wo rking fo r the townOf Lexingto n when he w a s n o t there ; they were wo rking fo rwitn e ss, a nd witn e ss was paying them . They were still in hisemploy, wo rking fo r the town .

Re-d irect : If Mo akley w a s d issatisfied he co u ld term inatethe ir wo rk at a ny time . Mo akley co u ld te ll them the man n erand fo rm o f d o ing the wo rk .

Re-cro ss : He had n o agreem en t with the town ; he had n o

u nd ersta nd ing wha tever with the town in regard to d o ing wo rkfo r them . If something d id n o t n e ed his time o r service s hewo u ld send his m en over. He pu t in the wage s ; he d id n o t

have a ny u n d erstand ing with the town in regard to tha t ; theyexpected to pay a reaso n ab le price fo r the m en , and alwayshad paid . When he made his first d e a l with them, when hewen t in to b u sin e ss fo r himse lf, he d id n o t have a ny u n d er

sta nd ing at all with them as to the rate o f wage s ; they simmycalled him Up, to ld him they had a jo b they w an ted him to d o ,

and he wen t there a nd d id it . He w a s cha rging the given rateo f wage s then , always had sin ce that time . He might havecharged them a nything, b u t pro bab ly wo u ld n o t a nd go b acko n the jo b aga in ; they kn ow a reaso n ab le price to pay a n d

expect a m an to charge that price . He had always chargedthat same price fo r his previo u s b ills a s he d id in this jo b .

To Mr. D o nahu e : No thing was ever said by the town ab o u tcharging fo r his ow n m en at a n advan ced rate over what hepaid them . The m en go t the same ra te when they Wo rked o n

o ther jo b s fo r him , the ir c ar fare s a nd d inn ers . The

cha rge Of the town fo r the se m en , is fixed by him alo n e .

It is a cu stom when wo rking that w ay to charge fo r his m en ata n advan ced rate over what he paid them . Mo st Of the lin ewo rk is d o n e by jo b wo rk, so mu ch a day, the same as theLexingto n wo rk. NO materia ls were b o u ght o n this jo b . On

some o f the jo b s he b o u ght material and charged the townpro bab ly 5 o r 10 per cent fo r that in advan ce . He mad e aprofit o n the m aterial as we ll as o n the m en o n all b u t linewire ; tha t is straight figu re s .Re-d irect : He did n o t fu rn ish any ma teria l o n this jo b

b ecau se it w a s repa ir wo rk . Afte r this wo rk which he d id thatw a s cau sed by the sto rm they o rdered a new line u p the stre e t

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instead o f patching Up; he ra n wire ; b e fu rn ished wire a nd the

town fu rn ished it . The re w a s n o ma teria l fu rn ished Au gu st 8.

The ma te ria l w a s fu rn ished a lo ng in Decemb er o r Ja n u a ry .

The town fu rn ished pa rt Of it and b e fu rn ished some ; Mo akleyo rd ered him to ru n a line Up the o the r sid e o f the stre e t to makeco nd itio n s b e tte r, which they d id afte r the a ccid e nt . He fu r

n ished cro ss a rms and wire , b u t no t a t Mo akley’

s d ire ctio n ;“he w a s b u ying o u t o f the d epa rtme n t at the time The

ma te rial fu rn ished o n jo b s like tha t is very ins ign ifica n t . He

co u ld u se the ma teria l the town had o n hand a t any time tha the saw fit .Re -cro ss : Asked who fu rn ished the material whe n he wo u ld

b e away from the jo b , he replied tha t the town had somema teria l o n ha nd — small stu ff . His m e n d id n o t fu rn ish the irow n to o ls ; he fu rn ished them ; they fu rn ished the ir ow n line sa nd rigging .

Re -d irect : The town ha s wire pu llers a nd su ch things ; hism e n had a right to u se them a t a n y time .

Wm . L . Mo akley , ca lled b y the cla ima nt , te stified tha t helive s a t 8 Sherman Stre e t , Le xingto n . On Au g . 8, 1918, he

w a s a capta in in the fire d epa rtme n t Of the town Of Le xingto n .

He is n o t no w employed by the town o f Lexingto n a s a pe rman e nt fireman ; he ha s b e e n wo rking fo r the Fed eral go vernme nt as a le tter carrier sin ce Octo b er 16 . He ha s b e e n a

memb er o f the Le xingto n fire d epa rtment a s a perman e n t m a n

ab o u t thre e ye a rs a nd a ha lf . He had b ee n capta in sin ceNo vemb er , 1917 . His b u sine ss prio r to entering the d epa rtme n t w a s e le ctricia n ; he had b e e n a n e lectrician pro b ab ly fiveo r six ye a rs . He had b e e n a linema n fo r ab o u t thre e o r fo u rye a rs . Q . So yo u co n sid er yo u rse lf fa irly expert a s a lin em an ?

” A .

“We ll , as o rd inary . I gu e ss expert .

” He calledUp Bills in regard

to te nd ing this wo rk a fter the sto rm o n the

mo rn ing o f Au gu st 8. Bills a nd tw o m e n m e t him a t the fire

ho u se . We d ro ve in the ma chine to the ho u se s Where tw o

d e fective tappers were ; from there w e we n t to the pa rticu lar

place where this a ccid e nt happe n ed . All this wo rk , b o th the

tappers and the o ther wo rk , w a s o n Bed fo rd Stre e t . He knewBills fo r pro b a b ly fifte e n ye ars . Bills had fu rn ished m en to the

town prio r to this time . Bills was n o t a lways there himse lf

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them to go from o ne place to an o ther when Bills w as no t there .

Q .

“Yo u have already stated that eve n when Mr . Bills w as

there yo u had d irected them to go from o ne place to ano ther ,d id yo u n o t ; d id n

’t yo u state that?” A .

“ I do n ’t rememb erwhether I d id o r n o t .

”

(Mr . Ryd e r stated that the witne ssd id no t say a ny su ch thing .) Q . “I asked him did n

’t he sayit . We ll , in this particu lar plac e , while Mr . Bills was pre se nta nd Mr . Chisho lm was pre se nt , yo u d ire cted them where to goo n this particu lar system , tha t is tru e , isn

’

t it ? ” A .

“Why ,

ye s , b ecau se I knew that the tro u b le was there . I su spe ctedthat it w as .

”The fire e ngineers were his Su perio rs . There is a

chie f a nd tw o assistant chie fs in Le xingto n ; the captain wo u ldb e the next grade b e low . The chie f and tw o assistan ts chie fsa re n o t permane nt m en . Mr . Taylo r is a b u sine ss m a n and

spe nd s mo st o f his d ay in Bo sto n . The o ther tw o m e n wereMr. Sc amm a n a nd Mr . Ru sse ll .Cro ss-examinatio n : There is a captain in charge o f the sta

tio n in E ast Lexingto n . He to ok his o rders from e ither theb o ard o f fire engin eers o r from the chie f and tw o assistan ts .

Asked if he had a permanen t o rd er from them that he was tohave cha rge Of the fire-a larm lin e , and the repairing o f it, o r

if they gave him o rders at each particu la r tim e o r in stru ctio n sa t each particu la r time when there was a b reak Or some thingto b e d o ne to the system, witne ss replied tha t he had no per

man en t o rd ers except that he co n sidered the fire-alarm systemthe same as a ny o ther ; he tried to get anything that happen ed to the fire-alarm system fixed Up as so o n as po ssib le ,ju st the same as if part o f a machin e b roke he wo u ld see thatthat was fixed Up. He co n sidered it o n e Of his du tie s to see

that the en tire system was kept in tact. If there w a s a b reakor anything happened that his ow n m en co u ld n o t fix, he wo u ldcall up Bills . Bills wo u ld e ither come o r send his m en to d o the

wo rk . If Bills sen t his m en and d id n o t come himse lf he wo u ld

go o u t, Show them where the tro u b le was , a nd te ll them to fixit ; that was all that he d id . If Bills came alo n g he to ld himwhe re the tro u b le w a s o r where he tho u ght it was, and fo r himto go and fix it ; Bills wo u ld take his m en and fix the jo b .

Sometim es he wo u ld go alo ng and sometime s he wo u ld n o t .

Q.

“YOU said , Mr. Mo akley, in an swer to qu estio n b y Mr .

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Co llin s, tha t if Mr. Chisho lm wa sn ’ t there tha t yo u wo u ldhave a u tho rity to discharge m en tha t he had sen t, providingthe wo rk wasn ’ t thro u gh.

”

(Mr. Co llin s stated that he did n o t

think tha t he said exactly Q . Tell them to

d isco n tin u e the wo rk and go home . I am n o t u ndertaking tosta te yo u r qu e stio n litera lly. I am trying to state the su b

sta n ce Of it ; d id yo u u nderstand Mr. Co llin s’ qu e stio n a lo ngthat lin e , Mr. Mo akley? ” A . I am a fra id tha t I d idn ’ t .”

Q. I will u ndertake to pu t wha t I think Mr . Co llin s w a strying to pu t to yo u at the time ; a ssume that Mr. Bills ha dsen t a co u ple Of his m en o ver to d o wo rk o n the fire-a larm system , Mr. Bills didn ’t come , a nd yo u wen t o u t to show themwhere the wo rk w a s ; a nd a ssume they had n o t fin ished the

wo rk tha t n ight ; d id yo u co n sider tha t yo u had a u tho rity tote ll them to d isco n tin u e the wo rk a nd n o t come b ack fo r a we eku n til yo u saw Mr. Bills, o r some thing Of that kind ? ” A .

“NO ,

sir ; n o t witho u t stating the ca se to o n e Of the fire engin eers,u su a lly the chief .” He co u ld d o that in a ca se Of tha t kind .

He w a s n o t a n a c tUa l wo rkman o n the lin es when Bills w a sthere ; he had d o n e sma ll jo b s o n the lin e o n

“my ow n ho ok,”

which he fe lt he co u ld d o a s a memb er Of the fire d epa rtmen t.He did n o t d o any wo rk while Bills w a s there o r his m en werethere , n o thing to amo u n t to a nything. On the m o rn ing Of

this accid en t Bills w a s with the m en a ll the time from the timethat he came to the fire ho u se with the m en u n til after theaccid en t. He tho u ght tha t he to ld Bills where he tho u ght thetro u b le w a s . After he go t there a nd started o n the wo rk hed id n o t u nd ertake to d irect Bills’ men as to how they sho u ldd o it ; he d id n o t te ll any o n e Of them how to d o any par

tic u la r jo b . (Mr. Co llin s : “Up to what time? ” Mr. Ryder“Up to the time Of Mr. Chisho lm ’s d eath. Mr. Co llin sThat w a s o n ly ten min u te s ”

)Re—d irect : Bills spoke the n ext mo rn ing after Bills disco n

tinned wo rk ; he co u ld n o t rememb er What he said ; he d id no t

rememb er wha t Bills said n ow . He certa in ly agreed with Bills .When Bills wo u ld b e away and he wo u ld b e d irecting the wo rko f the o ther men ,

“in a w ay

”he wo u ld have co n tro l over the

character o f the wo rk b e ing d o n e ; he wo u ld u su ally te ll thesem en what w a s to b e d o ne ; u su ally wen t Off and left them , per

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haps came b a ck some time d u ring the d ay to se e tha t the wo rkw a s b e ing do n e a nd it w a s b e ing do n e properly . If the wo rkw a s n o t b e ing d o n e pro perly he wo u ld have to co n fer with thefire engin e ers . He sho u ld n o t say anything to the m e n o r

Bills ; he sho u ld go right to his higher a u tho rity, o n e o f the

fire e ngin e e rs, u su a lly the chie f, te ll him wha t he tho u ght ,whethe r the wo rk w a s b e ing d o ne right o r n o t . He wo u lda llow them to co n tin u e the imperfect w o rk a fte r he had re

po rted it . They had n ever do n e a u v w o rk tha t he co n sid eredw a s imperfect tha t he n e ed ed to repo rt .William S . Sc amm a n , ca lled by the employe e , te stified tha t

he is a se lectma n o f the town Of Lexingto n . He had Ob servedthe wo rk o f Bills ’ m en the la st fo u r yea rs . Asked if he hadever to ld a ny o f the m en where to go , wha t to d o , he repliedtha t he tho u ght like ly ; he co u ld n o t say whe ther he had o r

n o t, b u t he tho u ght he ha d ; he sho u ld b e like ly to . He had

n o t Ob served the cha ra cter o f the wo rk they were d o ing a ny

m o re tha n perhaps o b serve it a s he wen t by where they werewo rking . If Mo akley repo rted to him tha t the wo rk w a s b e ingn egligen tly d o n e , e ither Mr. Taylo r o r he wo u ld co n su lt withthe o ther memb ers “

o f the b o a rd o f engin e ers .Cro ss-exam in a tio n : He is a memb er o f the fire engin e ers a s

w e ll a s se lectma n ; he w a s a t the time o f this a ccid en t a nd a t

the time tha t Mo akley w a s capta in o f the d epa rtmen t . Mo akley w a s the capta in o f the d epa rtmen t a t this time ; he w a s

a n expert o n the lin e wo rk, had a n umb er o f ye ars” experience ,a nd had b e en to ld to lo ok a fter tha t w o rk a t d ifferen t tim e s ;if a nything go t o u t o f o rd er he came to the e ngin e ers and to ldthem tha t there w a s some tro u b le . If he kn ew there w a s

tro u b le a nd they ha d m en com e there to d o this wo rk, theywo u ld n a tu ra lly a sk Mo akley to te ll them Where it w a s o r wha tit w a s tha t wa n ted to b e d o n e ; they co u ld n o t go o u t o n tha t

jo b themse lve s . Mo akley kn ew the wo rk b e tter tha n they d id ,

a nd if he wen t o u t o n the wo rk there m ight b e some po in t tha the co u ld perhaps expla in to the m en to d o o r advise them how

to d o it o n e w ay tha t w a s perhaps b e tter tha n the o ther .

E rne st A . Powers , ca lled the cla ima n t , te stified tha t his a d

dre ss is 9 Wa shingto n Ave nu e , We st Somerville . He Wo rks fo rthe fire a larm , po lice a nd te legraph . He w a s pre se nt o n Au g .

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electro cu tio n ; that his death o ccu rred in the co u rse o f a nd

aro se o u t Of his employmen t ; that Chisho lm at the time Of his

de a th w a s repairing a b re ak in the fire-alarm wire s Of the towno f Le xingto n ; tha t Chisho lm was do ing his wo rk as a re su ltOf a call which Lo u is W . Bills had rece ived , te ll ing Bills thatthe line s were down ; that in re spo nse to the call Bills , withChisho lm a nd o n e Powers , w e nt ' in Bills ’ au to to the fire statio n ; that a t the fire statio n they m e t Captain Mo akley o f the

fire d epartme nt ; tha t in add itio n to b e ing a captain in the

d epartmen t Mo akley had charge o f the fire -a larm system , acting fo r the b o ard o f engin eers ; that with Mo akley a nd a t his

d irectio n , Bills , Chisho lm and Powers we nt to the ho u se o f a

memb er Of the d epartme nt , removed a tapper which had b ee nb u rn ed o u t by the sto rm , and the nce we n t to the place whereexisted the b reak in the l ine in the repair o f which Chisho lmw a s killed . In do ing this repa ir wo rk Bills w a s pa id by the

d ay a nd Chisho lm and Powers were paid by the d ay . Simila rwo rk had b e e n do ne previo u sly , and the cu stom w a s , as in thiscase , fo r Bills to re nder a b ill , charging so mu ch per d ay fo r hisow n service s a nd so mu ch a d ay fo r e a ch m a n whom he fu r

n ished , charging fo r the service s o f the m e n a n advance o f 75

cen ts a d ay o ver What he pa id them . The se m en wo rked fo rBills o n o ther wo rk , a nd were paid by him regu larly o n Satu rd ays , su ch paymen t o f the ir wage s inclu d ing the pay fo r timespen t in town wo rk a nd b e ing made by Bills irre spective o f

when he rece ived the mo ney fo r the ir service s and his o w n fromthe town . Bills , Chisho lm and Mo akley were all expe rien cede lectricians a nd lineme n . Bills had no expre ss co n tra ct withthe town . Whe n they a rrived at the po le where the b re ak inthe lin e w a s o n this d ay , Chisho lm we n t up the po le witho u t any d irectio n from e ither Mo akley o r Bills . Mo akley hadsta ted what w a s nece ssary to be d o n e , that a ju mper sho u ld b e

pu t o n at that spo t a nd the defective part o f the system c u t

o u t ;” Mo akley had lo cated the tro u b le in the system a nd su g

ge sted pu tting the jumper o n at this spo t rather tha n at a n

o ther po le . It w a s Mo akley’

s d u ty to see that the system w as

kept inta ct ; some time s when Bills w a s ca lled o n he wo u ld n o t

attend himse lf, b u t wo u ld se nd m e n ; Mo akley wo u ld directthe se m e n what to d o , and wo u ld drop aro u nd at vario u s time s

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du ring the d ay to see that the m en were at wo rk and that thewo rk w a s b e ing d o ne properly.

The wo rk do n e o n this o cca sio n , like similar wo rk o n previo u so cca sio n s, w a s n o t a spe cific jo b fo r a specific su m o f mo n ey ;the wo rk to b e d o ne w a s su ch as Mo akley, in charge o f the

wire s fo r the town , might d irect ; Mo akley might sto p the

wo rk at any time a nd the m en wo u ld b e paid Simply fo r thetime which they pu t in . Mo akley co u ld d irect the m e n , in

clu d ing Chisho lm o n this o ccasio n , n o t o n ly whe re to wo rk,b u t a s to the man ner in which the wo rk sho u ld b e do n e inre spect to all its d e ta ils . Bills w a s a n e le ctrica l co n tracto r fo rwhom Chisho lm wo rked regu larly, a nd Bills to ok co n tracts fo rspecific jo b s a s we ll as d o ing this repa ir wo rk fo r the town .

On the fo rego ing fa cts I think it is clear tha t in re spect tothis wo rk Chisho lm w a s an employee o f the town ; that Bills ,Chisho lm a nd Powers were employe e s ; that Bills, b eside swo rking himse lf, fu rn ished to the town su ch m e n as weren e ed ed ; a nd tha t in re spect to this particu lar wo rk Bills w a sn o t a cting a s an independe n t co n tracto r .

A m a n m ay u nd ertake a specific jo b fo r a specific sum o f

mo ney and still b e a n employe e ; and a m a n m ay wo rk by thed ay a nd b e a n ind epende nt co n tra cto r ; the te st is whe ther theemployer ha s the right to exercise d irectio n and c o n tro l overthe wo rk, n o t mere ly as to the re su lt to b e achieved , b u t a s

to the d e ta ils o f the wo rk .

If this wo rk had requ ired the service s o f o ne perso n o n ly,a nd Bills had come himse lf and b e en pa id by the d ay a s he w a s

here , I d o no t think that it wo u ld b e su gge sted that in d o ingthis wo rk he w a s a n indepe ndent co n tra cto r . The fact tha tmo re m en were requ ired , a nd that he b ro u ght Chisho lm a nd

Powers, sho u ld n o t make him an indepe nden t co ntracto r, a ndChisho lm and Powers emplo yee s o f an independe n t co n tracto r .

The qu e stio n is always o n e o f fact , the co ntro lling circu mstan ce s b e ing the right to exercise co n tro l o ver the wo rk inrespect to all its d e tails . The exercise o f su ch co n tro l is, o f

co u rse , evide n ce o f the right to exercise it, b u t it is man ife stthat in skilled emplo ymen t the emplo yer mu st o n many o c

casio ns re ly o n the skill and ju dgmen t o f the employe e .

This act is remedial in its na tu re , a nd mu st b e given a lib eral

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co n stru ctio n to accomplish the pu rpo se inte nded . It n e ed n o t

b e co n stru ed here , however, o therwise tha n in a cco rd with thewe ll-se ttled principle s o f law go ve rn ing the se case s . A townca nno t , a ny mo re tha n an ind ividu a l , shie ld itse lf b ehind the

d o ctrine o f indepe nde n t co n tracto r by hiring a perso n to d o

wo rk a nd giving that perso n ge nera l a u tho rity to hire o thers .On a ll the fa cts I find tha t Da n ie l J . Chisho lm w a s a n em

plo ye e o f the town Of Le xingto n at the time o f his in ju ry a nd

dea th. B o b b ey v. Cro sb ie CO . , Ltd . , 9 B . W . C . C . 142 ;

1 14 Law Time s 244 (Ho u se Of Lo rd s , D e c . 9 , 19 15) reversingCo u rt o f Appeal , 8 B . W . C . C . 236 ; Po lla rd v. Go o le Hu llSte am Towing CO . , Ltd .

, 3 B . W . C . C . 360; Jo ne s v. Pe nwylt

Din a s Silica Brick CO . , 6 B . W . C . C . 49 1 ; B o n Je llico Co a lCo . v. Mu rphy, 161 Ky . 450, 171 S . W . 160; Sta te ex re l .

Virginia R. Lake Co . v. District Co u rt , 128 Min n . 43, 150

N . W . 21 1 , 7 N . C . C . A . 1076 ; Kn ice ly v. We st Virgin iaM . R. CO . , 64 W . Va . 278, 61 S . E . 81 1 , 17 L . R. A . (N . S .)370; Lehigh Valley Co a l CO . v. Yensavage , 134 C . C . A . 275.

Under the se find ings , a nd in a cco rdan ce with the terms Of

the act , the cla ima nt , Mary Chisho lm , is e ntitled to the pay

me nt from the town o f Lexingto n o f $ 10 a week fo r a perio d o f

fo u r hu ndred we eks from Au g . 8, 19 18.

FRANK J . DONAHUE .

Filed Sa tu rday, Aug . 9 , 1919 , at 9 A .M.

FINDINGS AND DE CISION OF THE INDUSTRIAL ACCIDE NT BOARD .

The employer having filed a claim fo r review , the Indu strialAccide n t Bo a rd he ard the partie s in the a b ove ca se o n Thu rsd ay ,

Oct . 9 , 1919 , at Bo sto n , Ma ss .

Pre sen t : Me ssrs . Ken nard (chairman), Dickin so n , Do n ahu e ,Bo yle a nd Co gswe ll .Appeara nce s : Timo thy Co llin s , E sq . , fo r cla ima n t ; Na tha n

B . Bidwe ll , E sq . ,fo r employer .

Qu e stio n : Whe ther the cla ima nt ’s d ecedent w a s in the serviceo f the town “

u nd er any emplo yme nt o r co ntra ct o f hire ,”

within the pro visio n s o f St . 19 13 , c . 807, 6 . The evid e n ce isco n ta in ed in the repo rt o f the he aring o f Ja n . 3, 19 19 , a nd

Feb . 25, 19 19 , the ca se having b e en re ferred b a ck, o n mo tio n o f

cla ima nt , fo r the he aring o f fu rther evid e nce o n Feb ru a ry 25.

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tow n of Lexington), and to the atto rney represen ting the dependen t . On Dec . 1 , 1919, Copies of reports , findings and

decisio n were filed in the Su perior Co u rt by the dependen t.This en try was no t a presen tatio n of the papers to the SU

perio r Co u rt “within ten days after the no tice o f the filing o f

the o rder or decision by the Ind u strial Acciden t Bo ard (takingthat no tice at its face valu e), as requ ired by St. 191 1 , c. 751 ,

Part III , 1 1 , as amended by St. 1912, c. 571 , 14, a nd by

St . 1917, c . 297, 7, in all case s when the partie s d esire to

appeal generally from the decisio n o f the Indu strial Acciden tBo ard to the Su perio r Co u rt. There are, neverthe le ss, n um ero u s in stances where a party, su cce ssfu l in his co n ten tio n s b e fo rethe Indu strial Acciden t Bo ard, may need the a id o f the SU

perio r Co u rt, and when that co u rt has ju risdict io n to rendersu ch aid . The en try o f the copies by the depend en t pu t herin a positio n to invoke the assistance of the co u rt so far asn eeded .

The town presen ted to the Indu strial Acciden t Bo ard b e twee nD e c . 1 and Dec . 1 1 , 1919, a mo tio n that the d ecisio n renderedNOV . 4, 1919,

“b e vacated .

” This mo tio n was hea rd o n D ec .

1 1 , 1919, and the decisio n w as filed o n Dec . 20, 1919 , in thesewo rds : “This m otion is den ied for lack Of ju risd ictio n , thecase n ow b eing b efo re the Su perior Cou rt fo r fu rther actio n asprovided by Part III , sectio n 1 1 o f the ac t .

”NO appeal was

taken from that decision , and its correctne ss is no t b e fo re u s .

On Dec . 27 1919, the tow n o f Lexingto n filed a mo tio n in theca se pending in the Su perio r Co u rt by reason o f the pre sentatio n o f papers by the dependen t o n Dec. 1 , 1919, praying thatthe

“ case b e recommitted to the Indu strial Acciden t Bo ard so

tha t said Indu strial Acciden t Bo ard may vacate a dec isio nrendered o n or ab o u t NCV. 14, 1919 ; so that the Indu strialAcciden t Bo ard may give fu rthe r and proper n o tice as provided in the statu tes to said town Of Lexingto n in re ference tosa id decisio n ; and so that the said Indu strial Acciden t Bo ardmay take su ch other and fu rther actio n a s u nder the circumstances m ay be m ee t and proper to give said town o f Lexingtonthe right to appeal to the Su preme Ju dicial Cou rt o f o u r Comm onw ea lth o n matters pertain ing to this case ; all this fo r thereaso n s set forth in an affidavit here to attached .

”The affidavit

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w a s sign ed by Mr. Bidwe ll a nd set o u t that Ro b ert Ryder,E sq . , w a s co u n se l o f reco rd fo r the town in the Chisho lm ca seb efo re the Indu stria l Accid en t Bo a rd , a nd requ e st by him tha tthe

“ depo n en t appear fo r him and in his b eha lf b e fo re sa idIndu stria l Accid en t Bo ard , sa id Ro b ert L . Ryder, E sq . ,

b e ing ill a nd o u t o f the city and therefo re u n ab le to attend sa idhearing .

”‘

Fu rther wo rds o f the affid avit are , Tha t I , the sa idNathan B . Bidwe ll, o n said d a te d id appe ar b efo re sa id Bo a rdat said hearing specifica lly expla in ing to the Bo ard the ca u sefo r sa id Ryd er’s a b sence , a nd tha t I w a s mere ly appe aring fo rhim in the ma tter tempo rarily u n til he recovered su fficien tlyto attend to this ca se , sa id Ryder still b e ing atto rn ey o f reco rdin the ca se , a nd that I d id n o t in tend to appe ar and d id no t

appear as co u n se l o f reco rd in the matter.

” There a re add itio n a l sta temen ts o f a severe in ju ry to the depo n en t whichu tterly incapa citated him from rece iving o r attend ing to the

no tice o f the decisio n o f the Indu stria l Acciden t Bo ard sen to n Novemb er 14, u n til lo ng a fter the ten d ays had expired ,a nd n o no tice w a s sen t to Mr. Ryd er, co u n se l o f reco rd in the

Ind u stria l Accid en t Bo ard , who learn ed o f the decisio n a lsoafter the expiratio n o f the ten d ays from Nov. 14, 1919 , and o f

the time fo r cla iming an appea l from the d ecisio n . The reco rdsta te s tha t “ after d u e he aring u po n the afo re sa id mo tio nthe ju dge o f the Su perio r Co u rt en tered a n o rd er in the sewo rds : “

On the within m o tio n a nd a ffid avit I find and ru lethat the Bo ard d id n o t n o tify the de fenda n t "the town o f

Lexingto n]a s requ ired by sectio n 10 a s amended . The case isrecomm itted with d irectio n to the Bo a rd to n o tify the pa rtie sas requ ired by sa id sectio n .

”The d ependen t se a so n a b ly ap

pea led from this o rd er o r decre e .

Pu rsu an t to the o rder o f recommittal, the Ind u strial Acciden t Bo a rd , o u March 24, 1920, filed a n ew decisio n in the samewo rds a s its d ecisio n o f Nov. 14, 1919 , a nd gave d u e n o ticethere o f . Fo r the pu rpo se o f appea ling from that decisio n , the

town o f Lexingto n rea so n a b ly thereafter pre sen ted the requ isitecopie s to the Su perio r Co u rt . A d ecree w a s en tered in the

Su perio r Co u rt in favo r o f the depend en t in acco rdan ce withthe decisio n o f the Indu stria l Acciden t Bo ard . The appeal o fthe town b rings the case here .

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The en try o f the case by the dependen t in the Su perio rCo u rt o n Dec . 1 , 19 19 , if in tru th a nd in fact after the expiratio n o f ten d ays from the giving o f n o tice, o rd ina rily wo u ld n o t

have co n ferred u po n any party a right o f appe a l from the

decisio n o f the Bo ard . The o n ly fu nctio n o f the co u rt u nd ersu ch circumsta nces commo n ly is to en fo rce the finding o f the

Indu stria l Accide n t Bo ard u n le ss there is lega l rea so n to the

co n tra ry . If, in tru th a nd in fact , n o n o tice o f the award o f the

Bo ard had b e en give n to the o ther party to the c o n troversv

(u n le ss, po ssib lv the right had b e en w a ived , o r fo r some o ther

extra o rd inary ca u se the n o tice might b e omitted), tha t wo u ldb e a su fficien t reaso n w hy the award sho u ld n o t b e en fo rced .

When a party d e sire s to have reviewed acco rd ing to the sta tu tethe erro rs o f law mad e in a n awa rd o f su ch a pu re ly administra tive trib u n al a s is the Ind u stria l Accid en t Bo a rd , a n d isd eprived o f exercising tha t right by rea so n o f fa ilu re by the

Bo ard to give the n o tice o f its d ecisio n a s requ ired by the

sta tu te , it wo u ld b e m a n ife stly ju st fo r the Su perio r Co u rt tore fu se its a id in en fo rcing su ch award u n le ss o n a n in spectio no f the who le reco rd it w a s free from ha rmfu l erro r. On su chmo tio n as w a s filed by the town o n D ec . 27, 1919, it w a s withinthe ju risd ictio n o f the Su perio r Co u rt to inqu ire in to and decidethe qu e stio n whether n o tice had b e en given a s requ ired by thesta tu te . It w a s n ece ssa ry to de term ine that po in t in o rder tore ach a co nclu sio n whether the award o u ght to b e en fo rced .

This b ra n ch o f the ca se is within the a u tho rity o f Sc io la’

s Case ,236 Ma ss . 407, and the d ecisio n s there reviewed .

It is n o t certa in from the reco rd whe ther the ju dge heardthe mo tio n to recommit o n ly o n the a ffid avit, o r whe ther herece ived o ther evid ence o r sta tem en ts trea ted as evid en ce . Ifhe pu rsu ed the la tter co u rse , it cann o t b e said tha t his find ingw a s u nw a rra n ted b eca u se the evid ence is n o t repo rted . If hehe a rd the mo tio n o n the a ffid avit a lo n e , w e can n o t say tha t hisfind ing w a s witho u t su ppo rt in law . The a ffid a vit taken at itsfa ce is to the effect tha t Mr . Ryd er w a s

“a tto rn ey o f reco rd

fo r sa id town o f Lexingto n ”in the case a s it w a s pend ing b e fo re

the Ind u stria l Accid en t Bo ard , a nd tha t Mr . Bidwe ll mad e itpla in to the Bo ard tha t he w a s o n ly tempo rarily acting in hisstea d a nd

“d id n o t in tend to appear a nd d id n o t appea r a s

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fact tha t Chisho lm w a s paid by Bills and no t by the town isthe circumstan ce to b e co n sidered o n the qu estio n whether there latio n o f master and serva n t existed b etween them o r no t ,

b u t is no t decisive . The te st to determin e which o f differen tperson s is the employer o rdinarily is, who ha s directio n and c o n

tro l o f the employee, and to whom do e s he ow e o b edien ce inre spect o f the particu lar matte r in ha nd . Genero u s o . Ho smer,216 Mass . 26, 28. In Shepard 0 . Jaco b s, 204 Mass . 1 10, 1 12,the te st w a s stated by Chief Ju stice Kn owlto n to b e whe therthe act is do ne in bu sin e ss o f which the perso n is in do n tro l as aproprieto r, so tha t he c an at a ny time stop o r co n tinu e it anddetermin e the way in which it shall b e do n e , n o t mere ly inreferen ce to the resu lt to b e reached , b u t in referen ce to the

method o f reaching that re su lt .” As w a s said by Mr. Ju sticeGray, in Singer Man u f . Co . v. Rahn ,

132 U. S . 518, at 523,“The re latio n o f master and servan t exists whe n ever the em

ployer re tain s the right to direct the man n er in which the b u sin e ss shall b e do n e , as we ll as the re su lts to b e a ccomplished , o r,in o ther wo rd s, no t o n ly what sha ll b e d o ne b u t how it shall b edo n e .

” Scribn er’ s Ca se , 231 Mass . 123 ; Hasty 11. Sears, 157Mass . 123 ; Berry 0. New Yo rk Cen tral Hu d so n River Ra ilro ad , 202 Ma ss . 197, 203, 204 ; Du tto n v. Ame sb u ry Na tio nalBank, 181 Ma ss . 154 ; McAllister

’

s Case , 229 Mass . 193 .

There w a s evid en ce tend ing to show tha t Chisho lm receivedregu la rly weekly compen satio n from his employer, Bills, at arate per d ay somewhat le ss tha n that cha rged by B ills to the

town . B u t Bills pa id the c ar fare a nd dinn er.There w a s evid ence ten d ing to show tha t Bills w as a fire

alarm e lectrician employing several m e n , and did wo rk b o th as

a jo bber a nd general co n tracto r . On the mo rn ing o f the accide n t o n e Mo akley, who w a s at the time the captain o f the fire

'

departmen t and acting su perin tenden t o f the fire ala rm o f the

town o f Lexingto n , no tifying Bills that the wire s were down byre aso n o f a

.

heavy sto rm o f the previo u s even ing , asked him to

take care o f them . As a co n sequ ence Bills , with Chisho lm a nd

o n e o ther m a n a nd Mo akley, started o u t to gether o n the wo rk .

Mo akley gave d irectio n s where they sho u ld go and po in ted o u t

certa in things that he co n sidered sho u ld b e do ne . He also sa idtha t be lls which were o u t o f o rder sho u ld b e removed from tw o

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ho u se s where firemen lived . They we n t to Bed fo rd Stre et ,where Mo akley sa id tha t “

the ope n e nd w a s o u t o f o rder and

tha t they co u ld jump it there a nd ke ep the town part wo rking . If they co u ld clo se the line a t tha t po int there , theyco u ld ke ep the circu it down town wo rking, and c u t o u t the partthat w a s b ro ke n down . If they co u ld pu t a ju mper o n theline a t tha t po int , they co u ld clo se the circu it d own town .

”

Chisho lm was pre se n t du ring the co nversatio n , la ter we n t up

the po le , a nd while o n the po le to pu t o n the jumper rece ivedhis in ju ry. At time s Mo akley wo u ld d ire ct the employe e s o f

Bills wha t to d o , a nd wo u ld lo o k over the wo rk to se e wha t w a sb e ing d o ne . Bills te stified tha t Mo akley, who w as a n experi

e n c ed e le ctrician , wo u ld d irect his m en when he w a s n o t there ,a nd that “Mo akley had a right to exercise co n tro l over him o n

this particu lar jo b if he saw fit . Mo akley d id exercise co n tro lover him . Mo akley co u ld te ll him ju st how he wanted thewo rk do ne . Mo akley co u ld te ll him to d isco n tinu e the wo rk atany time . Mo akley co u ld d o the same thing with Chisho lmwhile witn e ss w a s pre sen t . Mo akley ha s to ld his m en the

ma n ner in which he wa n ted tha t wo rk d o ne , a nd ha s to ld himthe ma n ner in which tha t wo rk w a s to b e d o n e , a nd so far a s

he kn ew the m e n have a lways d o n e it .” Mo akley “ co u ld d ischarge Chisho lm from the town employ, and co u ld te ll himthe manner and fo rm o f d o ing the wo rk. The a cco u n tsrendered by Bills to the town were itemized to the exten t o f

showing the n ame , time a nd price per d ay charged fo r Chisho lm a nd o ther m e n who wo rked fo r the town .

In view o f this te stimo ny it can no t b e sa id tha t the finding o f the Bo ard w a s who lly witho u t su ppo rt . The existence o f

the ge neral re la tio n o f master a nd servan t b e twe e n Bills a ndChisho lm d id n o t exclu d e a like re la tio n b e twe e n the town a nd

Chisho lm to the exte n t o f the particu lar wo rk in which the

latter w a s engaged at the time o f his in ju ry . Upo n this po int ,in view o f the facts fo u nd , the ca se is within the a u tho rity o f

John so n 0. Bo sto n , 1 18 Ma ss . 1 14 . It is distingu ishab le fromthe principle illu strated by Pige o n

’s Ca se , 216 Ma ss . 51 ;

Cla ncy’s Ca se , 228 Mass . 316 ; Win slow’s Ca se , 232 Mass . 458;

Ce ntre llo’

s Ca se , 232 Ma ss . 456, and similar d ecisio n s .D ec ree affirmed .

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CASE NO . 5669 . (238 Ma ss .

CORNE LIUS DOUGHERTY (DE CE ASE D), E mployee .

UNION COAL AND WOOD COMPANY, E mployer.

TRAVE LE RS INSURANCE COMPANY, Insu rer.

SUNSTROKE , OR HE AT PROSTRATION .

It is un d isputed tha t the em ployee , a te am ste r , a fte r having de live red a lo ad o f

co a l o n an extrem e ly ho t d ay in Augu st, 19 17 , drove in to his em ployer ’s yard ,

com pla in ed o f illn e ss to the tre asurer o f the com pany , w as o rdered to put uphis te am an d go hom e , w as foun d a ha lf hour la te r in his em ployer ’s ba rn inan un co n scious co n d itio n , an d died severa l hours la te r from hea t pro stra tio n .

There w as n o eviden ce to Show tha t the em ployee o n the d ay o f his dea thw as pe culia rly expo sed to the danger o f sun stro ke by re aso n o f the n a ture o f

his wo rk ; the ha z a rd o f in jury from tha t cause would n o t seem to have beend ifieren t from tha t to which perso ns in gen era l in tha t lo ca lity w ho wo rked inthe Open we re expo sed ; an d it cann o t b e sa id as m a tte r o f law tha t the fin din gs o f the Bo ard were without eviden ce to suppo rt them . This cas e is pla in lydistin guishable in its fa cts from M cMan am an

'

s Case , 224 Mass . 554 ; O’

B rien’

s

Case , 228 Mass . 380 ; McCa rthy'

s Case , 230 Ma ss . 429 ; an d M cC arthy’s

Case , 231 Ma ss . 259 , where a diff e ren t re sult w a s rea ched .

RE PORT OF MEMBE R OF INDUSTRIAL ACCID E NT BOARD .

The m emb er o f the Ind u strial Accid en t B o ard , appo in tedu nder the provisio n s Of Part III , sectio n s 5 a nd 7, chapter 751 ,Acts Of 191 1 , a nd amendm en ts there to , having heard the partie s in the ab ove-n amed case a t the Ald erman ic Chamb er, CityHall, Ho lyoke , Mass . , o n Wedn e sday, Oct . 24, 1917, a t

A .M. , repo rts as fo llowsAppeara n ce s : Henry A . Mo ran , E sq . ,

fo r in su rer ; Thoma sJ . O

’

Co n n o r, E sq .,fo r employee .

The qu e stio n at issu e w a s whether o r n o t the employee ’ sd ea th w a s d u e to an in ju ry a rising o u t Of and in the co u rse o f

his employmen t o n Au g . 1,1917 .

It w a s agreed tha t o n Au g. 1 , 1917, Co rn e liu s Do u ghertyw a s in the employ Of the Un io n Co a l a nd Wo o d Compa ny, andthat his average we ekly wage s were $17 . It w a s a lso agreedthat n o tice a nd cla im fo r compen satio n were filed within the

sta tu to ry perio d . There w a s n o d ispu te as to dependen cy .

All the material evid en ce in the ca se fo llows .D r. Ad o lph Fran z te stified tha t he w a s grad u a ted from CO

lumb ia Un iversity a nd ha s b een practicing in Ho lyoke as a

physician a nd su rgeo n fo r thirty years . On Au g. 1 , 1917, he

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that he rememb ered Au g. 1 , 1917, and rememb ered see ingDo u gherty o n that d ay when he came in

“ ju st b e fo re he w a s

pro strated .

” He ju dged the time to b e ab o u t ten minu tes o f3 . He came in from d e livering a lo ad o f co a l . Mr. Finnn o ticed that Au g. 1 , 1917, w a s an exce ssive ly warm d ay . He

d id n o t n o tice anything o u t o f the way ab o u t Do u gherty, b u tthe m an to ld him that he was n o t fee ling we ll and was n o t

sweating, so the witness to ld him to pu t up his team a nd go

home . He pu t up his team , and the n ext time that Mr. Finnsaw him w a s ab o u t ha lf a n ho u r later when the stab leman to ldhim that Do u gherty was pro strated o u t in the b arn . Mr.

Finn wen t o u t to the b arn and saw the employee lying o n ab lanket . He was u n co n scio u s at the time . Witness imm ed i

ate ly te lepho n ed fo r the amb u la nce and the do cto r. The am

b u la n c e reached there first, so Do u gherty was pu t in to it’

a nd

taken to the Ho u se Of Providence Ho spital . The do cto r d idn o t see the m an , as he arrived there ju st as the amb u lance wasle aving the yard . Do u gherty had wo rked all the fo ren o o n o f

the day o n which he died . In lo oking over the reco rd s, Mr.

Finn testified tha t he co u ld n o t se e that Do u gherty had lo st ad ay fo r years . On the d ay in qu e stio n the d eceased was driving a single team ho ld ing ab o u t a to n Of co al . There was n oca rrying to b e d o n e , as he shove led the co al in .

E dward Blanche tt te stified that he ha s wo rked fo r the Un io nCo al and Wo od Company fo r a b o u t three yea rs . He kn ew Mr.

Do u gherty, rememb ered Au g. 1 , 1917, a nd remembered see ingMr. Do u gherty o n that d ay . Witness te stified tha t he wo rkedin the fo ren o o n , b u t d id n o t wo rk in the aftern o o n , as he hadto ld his employer that it w a s to o warm fo r his ho rse ; that hisho rse w a s we ak. He was to ld that he co u ld go home . He sawDo u gherty “ pu ll up

”a nd lo ad his team with co a l . This w a s

ab o u t 1 O’clo ck . He ju dged that there was ab o u t a to n in the

lo ad , and it was go ing to the co nven t o n Hampden Stre et . He

d id n o t see Do u gherty after he d e livered the lo ad, b u t heardthat he had pu t u p his team and le ft the yard . The n ext timehe saw him w as when he , the witn e ss, w a s a t a friend ’ s ho u seat 13 Pro spect Stre et, Ho lyoke . He saw Do u gherty comingdown the stree t in the d irectio n o f the co al yard , a nd n o tic ed

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him staggering. This was at ab o u t P .M. Blanchett andhis friend came d own and assisted Do u gherty, picking him up

and taking him in to the co a l shed o f the Un io n Co al and Wo odCompany, which was clo se by . They then to ld the stab lemanto te ll Mr. Finn to come over and se e him . Mr. Fin n cameover, and te lepho n ed fo r the amb u lance and d o cto r. Mr. Finnd id n o t have any co nversatio n with Do u gherty to B lan chett

’

s

kn owledge . Witn e ss fu rther te stified that from his friend ’ sho u se the co a l shed is ab o u t the d istan ce acro ss an o rd inarystre e t. Blanchett te stified that Pro spect Stre et, Ho lyoke , go ingwe st from the co al yard , is qu ite a hilly stree t. At the timeBla nchett saw Do u gherty coming d own Pro spect Street therewas n o b ody with him . The o n ly co nversatio n witn e ss had withthe d eceased when he was assisting him was that Do u ghertysaid ,

“He lp m e , Chick.

” Witn e ss d id n o t know what timeDo u gherty pu t up his team .

Mrs . Ne llie Do u gherty testified tha t she is the wid ow o f

Co rne l iu s Do u gherty ; that her hu sb and d ied Au g . 1 , 1917,

and that previo u s to his d eath he had wo rked fo r the Un io nCo al a nd Wo od Company fo r a t le ast twelve co n secu tive ye ars .She ha s ten child re n , a ll o f whom live at home , a nd fo u r o f

whom wo rk . She fu rther sta ted that when he r hu sb and w a s

d e livering his la st lo ad Of co al , the d irectio n in which he w a s

go ing to o k him past his ow n home , so he we n t in fo r a fewminu te s . This was aftern o o n . He to ld his wife a t this timethat he d id n o t fee l we ll , and tha t he w a s so rry he had pu t o nthis lo ad , b u t as it was the la st lo ad , he w a s go ing to d e liver itb e fo re he qu it wo rk . At the time Of this co nversatio n her

hu sb and had no t d e livered the lo ad , b u t w a s o n his way to doso . She l ive s a t 196 Lyma n Stre e t, Ho lyoke .

Oscar C . Ferry te stified that he l ive s in Ho lyoke a nd ha s

lived there fo r a n umb er o f ye ars . He is clerk o f the departme n t o f pu b lic works o f the city o f Ho lyoke . Fo r some ye a rsit ha s b ee n a part o f his du tie s to ke ep an officia l reco rd o f the

temperatu re Of the weather, a nd he ha s te stified in co u rt as a nexpert as to the temperatu re a nd climatic co nd itio n s at vario u stime s . The temperatu re is taken in the yard o f his resid e ncea t 2102 No rthampto n Street , Ho lyoke, in a sta ndard weather

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bu re au shelter appro ved by the Un ited State s Departmen t o fAgricu ltu re . He stated that the chart which he held showedthe temperatu re a t 1 o

’clo ck o n Au g. to b e 98; at 2o’clo ck , 99 ; at 3 o

’clo ck, a fractio n b elow 99 ; a nd at 4 o’clo ck ,

97 . He stated that the she lte r stands in the o pen , expo sed tothe rays o f the su n , b u t the in struments a re she lte red by the

she lter itself, a nd a re no t in the su n . The she lte r is ma d e o f

wo o d in the shape o f a cu po la . It stand s o n su pports ab o u t4 o r 5 fe et from the gro u nd . The ro o f is compo sed o f seve ne ighths inch b o ard s arranged like a b lind o r lattice , in o rd er

that the a ir m ay b e freely circu lated thro u gho u t the insid e .

The ins ide is a little le ss tha n 3 fee t squ a re . The who le issu ppo rted by fo u r legs o r po sts which are se t o n a pla tfo rm ,

and the platfo rm in tu rn is su ppo rted some 6 o r 8 inche sfrom the gro u nd by po sts ru n n ing into the gro u nd . The

she lter is expo sed to the dire ct rays of the su n o n top.

The evidence in this case shows that Co rne liu s Do u ghertyd ied o n Au g. 1 , 1917, of heat pro stration , while in the emplo yo f the su b scrib ers , the Un io n Co al a nd Wo o d Company . The

temperatu re registered b etwee n 98° a nd 99° F . o n the afterno o n

o f that day . At o r a b o u t 3 O’clo ck the emplo ye e , who had ju st

de livered a lo ad Of co al , drove his team into the yard a nd

complained to the person in cha rge that he d id no t fee l we lla nd tha t he was n o t perspiring . He was o rd ered to pu t up histeam and go home . Abo u t thirty o r fo rty minu te s later thestab leman repo rted that the employee was pro strated a nd thathe was lying in the b arn . He w a s u nco nscio u s at that time .

Med ica l attenda nce w a s sent fo r and the emplo yee d ied a t

Pro vid e nce Ho spita l several ho u rs la ter.

There was no evid e nce that the emplo yee had b een su b jectedto a materia lly gre a ter danger o f heat pro stra tio n by rea so n Of

co nditio n s pecu lia r to his emplo yme nt than any other o u td o o rwo rker o n the d ay in qu e stio n . The da nge r Of su ch heatpro stratio n was no t pecu liar to the employm e n t in which b ew a s e ngaged , and I find , u po n a ll the evid ence , that the petitio n er ha s no t sa tisfied the b u rd e n o f pro ving that the he a tpro stratio n which ca u sed the d e a th o f her deced en t w a s

o ccasio n ed b y o r ca u sa lly re lated to a perso nal in ju ry which

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which aro se o u t Of and in the co u rse o f his employmen t ; and

that it ha s no t b een shown that the employe e was su b je cted byreaso n o f his employment to materially greater danger Of heatpro stratio n than o ther

'

Ou tdo o r wo rkers o n the d ay in qu e stio n ;there fo re the cla im fo r compen satio n is d ismissed .

WM. W . KE NNARD .

JOSE PH A . PARKS .

C . E . GLE ASON .

Filed Satu rday, March 2, 19 18, at 9 A .M.

DE PE NDE NT ’S APPE AL .

No w come s Ne ll ie Do u gherty, d epe nde n t o f ab o ve-namedCo rne liu s Do u gherty, d e ce a sed emplo yee , and appe als from the

d ecree Of this Ho no rab le Co u rt, o f March 1 1 , 1918, to the

Su preme Ju d icial Co u rt o f this Commo nwealth .

NE LLIE DOUGHE RTY, D ependen t,By he r Atto rney,

THOMAS J . O ’CONNOR.

Filed March 1 1 , 1918.

DE CRE E o r SUPREME JUD ICIAL COURT .

CROSBY, J . The u nd ispu ted facts in this case show that theemployee was a te amster in the emplo y o f the Unio n Co al a ndWo od Company. On Au g. 1 , 1917, ab o u t 3 o

’clo ck in the a fterno o n , a fter having d e l ivered a lo ad o f co al , he d ro ve into hisemployer ’ s yard a nd complained to o n e Finn , the treasu rer o f

the compa ny, that he did n o t fee l we ll , a nd that he was no t

perspiring . He w a s o rd ered to pu t up his team and go home .

Ab o u t half an ho u r later it was repo rted that he w a s lying inthe employer ’s b a rn and was u nco n scio u s . He was removed toa ho spital and d ied several ho u rs la ter, his d eath b eing du e tohea t pro stra tio n . The d ay in qu e stio n was extreme ly ho t, thetemperatu re registered b e twee n 98 and 99 degree s in the afterno o n .

It is pla in that the su n stroke which re su l ted in the d ea tho f the emplo yee w a s su ffered while he was d o ing the wo rk he

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was employed to perfo rm ; there fo re the in ju ry w as receivedin the co u rse o f his employmen t .The qu e stio n remain s Whe ther the in ju ry aro se o u t Of the

employme nt within the mean ing o f the Wo rkm e n’s Compe n

Satio n Act . An in ju ry arise s o u t o f the employmen t whe n itappears , in view o f all the circumstance s , that there is a cau salco nn ectio n b e twe e n the co nd itio n s u nder which the wo rk isrequ ired to b e perfo rmed a nd the re su lting in ju ry . The firstinterpretatio n b y this co u rt o f the Wo rkme n ’s Compe n satio nAct in this co nn ectio n is fo u nd in McNicho l

’

s Ca se , 215 Mass .497, at page 499 , where it is sa id that

“ if the in j u ry c a n b e

se en to have fo llowed a s a n atu ra l in cid en t o f the wo rk and to

have b e e n co ntemplated by a re a so nab le perso n familiar withthe who le situ a tio n as a re su lt o f the expo su re o cca sio ned bythe n atu re Of the emplo ymen t , then it arise s

‘Ou t Of

’

the em

plo yme n t . B u t it exclu d e s an in ju ry which ca nno t fairly b etra ced to the emplo ymen t as a co n trib u ting pro xima te cau se ,and which come s from a hazard to which the wo rkman wo u ldhave b een equ a lly expo sed apart from the employment . The

ca u sative danger mu st b e pecu lia r to,the work and no t commo n

to the n e ighb o rho od .

” Hewitt ’s Ca se , 225 Ma ss . 1 ; Do nahu e’s

Ca se , 226 Mass . 595 ; Warn er v. Co u chma n , 4 B . W . C . C . 32.

Se e McMa n am an’

s Case , 224 Ma ss . 554 ; Mo o rad jian’

s Case ,229 Ma ss . 521 .

In the ca se a t b a r a memb er o f the Ind u strial Accid en tBo ard fo u nd that upo n all the evid e nce the claim a n t “

ha s n o t

sa tisfied the b u rd en o f pro ving that the heat pro stra tio n whichcau sed the d eath Of he r deced e nt was o cca sio ned by o r cau sa llyre la ted to a perso n al in ju ry which aro se o u t o f a nd in the co u rseOf his employme nt . ” This find ing was a ffirmed a nd ad o pted bythe Bo ard o n review , which fo u nd that

“ it ha s no t b e e n shownthat the emplo ye e was su b jected by reaso n o f his emplo ymen tto materially greater d anger o f heat pro stratio n than o ther

o u td o o r wo rkers o n the d ay in qu e stio n .

” There w a s no evi

dence to Show tha t the employe e , while e ngaged in d e l iveringco al o n the d ay Of his d eath, was pe cu l iarly expo sed to the

d anger o f su n stro ke by reaso n o f the n a tu re o f his wo rk . The

hazard o f inju ry from that cau se wo u ld no t seem to have b ee nd ifferen t from tha t to which perso n s in ge nera l in that lo cality

290

who wo rked in the o pe n were expo sed . It cann o t be said a s

matter o f law that the find ings o f the Bo ard were Witho u t evid e nce to su ppo rt them . The case at b a r is plainly d istingu ishab le in its facts from McMan am an

’

s Case , s upra , O’

B rie n’

s

Ca se , 228 Mass . 380, McCarthy’

s Ca se , 230 Ma ss . 429 , a nd

McCarthy’

s Case , 231 Mass . 259, where a d iffere nt re su lt wasreached . The e n try mu st be

Filed May 25, 1921 .

D ec ree afiirmed

CASES NOS . 635 1 , 6352 . (239 Mass .

FRANK LE VE RONI , ADMINISTRATOR O I TIIE E STATE OF E NRICOLE ONE , E mployee .

W . D . SMITH COMPANY, E mployer.

TRAVE LE RS INSURANCE COMPANY, Insu rer .

E MPLOYE RS ’ LIABILITY ASSURANCE CORPORATION , LTD . , Insu rer .

INSURANCE COVE RAGE .

The iden tity o f the in sured is a m a te ria l fa ct , an d the duty o f disclo sing to the

in suran ce com pany tha t the W . D . S . Co rpo ra tio n w as n o t the W . D . S . C om

pany , a Co pa rtn e rship firm , which em ployed the m en w ho were to b e pro te ctedunder the Wo rkm en

’

s C om pen sa tio n Act , re sted upo n the em ployer ; an d the

n o n -disclo su re o f the fa ct tha t the firm a n d the co rpo ra tio n we re n o t iden tica lw as a fraud in law which inva lida ted the in suran ce co n tra ct a t the e le ctio n o f

the in sure r . See Fife r v. C learfie ld dz Cam bria Co a l dz C o ke CO . , 103 Md . 1

Bo ulto n v. Jo n es , 2 Hu rlst dz N . 564 ; Bo sto n Ic e Co . v. Po tte r , 123 Mas s .

28 ; Brighto n Pa ckin g CO . v. Butche r ’s Slaughte rin g dz M e ltin g Ass ’n , 21 1

Mas s . 398 ; We rlin v. E quitable Sure ty CO . , 227 Mass . 157 .

JURY TRIAL .

Tria l by jury is in com pa tible with the en tire schem e o f the Wo rkm en’

s Com pens atio n Act , which co n fers a fixed an d certa in sta tuto ry indem n ity fo r perso n a linjuries which an em ployee m ay susta in , without the de lay an d un c erta in tywhich are n e cessa rily in ciden t to the e n fo rcem en t o f his comm o n -law rights .

See Young D un can , 218 Ma ss . 346 .

FIND INGS OF FACT .

Where the Bo a rd fin ds a s a fa ct tha t a co n tra ct o f in su ra n ce w as w ith the W. D . S .

Com pa ny , a co rpo ra tio n , a n d tha t certa in perso ns w ho were m em bers o f a c o

pa rtn e rship do in g busin ess unde r tha t n am e were n o t the pe rso ns insuredunder the sta tute , such fin dings a re co n clusive whe n suppo rted by evide n ce .

D o n o va n'

s Ca se , 2 17 Mass . 76 ; Me ley’

s Case , 219 Mass . 136 .

RE PORT OF MEMBE R OF INDUSTRIAL ACCIDE NT BOARD .

The memb er o f the Ind u strial Accid en t Bo ard appo in tedu nd er the prov isio n s o f Part III , sectio n s 5 a nd 7, chapter 751 ,Acts o f 191 1 , a nd amendmen ts there to , having heard the par

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profits and lo sse s . Mr. Cavanau gh had o ne o f his m en , PatrickLea ry, pay the m en . Witn e ss hired the m en , fixed the ir wage s,the ir employm en t ; what they were to d o , and d irected them .

There w a s no stipu lated am o u n t tha t he w a s requ ired to pu t

in , b u t when Mr. Cavanau gh’ s m an was n o t there he wo u ldu se his ow n mo n ey . Witness co u ld n o t te ll the exa ct amo u n t,b u t it w as somewhere aro u nd There was n o writtenagreemen t b e tw een witn e ss and Mr. Cavanau gh, o n ly an o ralon e , and this was mad e when the jo b was taken , May 8, 1917.

The agreemen t w a s made at the Parker Ho u se , Bo sto n . Mr.

Cavanau gh’ s n ame is Jame s F. , a nd he lives in Man che ste r,N . H . Witn e ss’ co ntract o r ta lk w a s with James F . Cav

an au gh, and whatever he d id was with Mr. Cavanau gh in

d ividu ally . When a sked what certain in itials mea n t o n a b rasscheck they u sed o n the wo rk, witn e ss replied that he d id n o t

kn ow ; that Mr . Cavan au gh sen t them d own and they u sedthem . Pa trick Leary, the payma ster, was emplo yed by Mr.

Jame s F . Cava nau gh. Witne ss has kn own Jame s F. Cavanau ghfifte en years, a nd has kn own Cavan au gh Bro thers the samelength o f time . Jame s F . Cavanau gh had this co n tract withwitn e ss o u t in Whitin sville . Witn e ss suppo sed that Leo n e w a swo rking fo r Mr. Cavanau gh. Witn e ss thinks he saw Cava na u gh

’

s b ro ther d own at the wo rks o n ce , and they talkedab o u t gen era l wo rk, n o t pa rticu larly ab o u t this jo b . Witn essle ft the jo b Au g. 28, 1917 . He w a s o n the jo b when Leo n e w a skilled . When a sked if he mad e o u t the repo rt, sign ed it andse n t it to the Bo ard , he replied tha t b e pre sumed so . Witn e sssta ted tha t the repo rt o f in ju ry lo oks like his so n ’ s writingrepo rt o f fa ta l in ju ry lo oks like his so n ’ s writing . His so n w a s

acting a s timeke eper fo r witn e ss . His n ame is William Co b u rnand he live s at the sam e add re ss as witn e ss . He is twen ty-fiveyea rs o f age . When shown repo rt Of perso nal in ju ry and a skedif tha t was his writing, replied that it w a s n o t, and d o e s no trememb er ever sign ing his name to it, and the same applie s tothe previo u s o n e mad e o u t . Mr. Jo n es o f the So u thb ridgeE ngin ee ring Company had the jo b previou s to the Glo b e Ind em n ity Company . The So u thb ridge E ngin e ering Companyha s go n e o u t o f b u sin e ss . The jo b w a s b e ing d o n e fo r the

Massa chu setts Highway Commissio n . Witn e ss had 40 m en

293

wo rking o n this jo b , and was paying them a d ay fo r an in e-ho u r d ay . When witne ss wen t o n this jo b b e arra ngedfo r in su rance with Mr. Thoma s J . No la n o f Bo sto n who se placeOf b u sine ss is at 75 State Street . Witn e ss ha s d o n e some b u sin e ss with Mr. No lan b efo re , b u t no t very mu ch. Witn e ss d o e sno t rememb er when it was, b u t it w a s b e fo re they sta rted thewo rk . When su mmo n sed , he w a s n o tified to b ring his po licie sin with him to d ay, b u t fo rgo t them . He w a s in su red With theTrave lers In su ra nce Company . (Mr. Doyle pro d u ced a d u plicate po licy su b ject to having the o rigin a l sen t in by Mr. Smithand having them compa red . He do e s n o t know whether o r no t

it is a n exa ct d u plica te .) Witn e ss was the W. D . Smith Company . It had b een a co rpo ra tio n , b u t had go n e o u t o f existence .

It w a s a pa rtn ership, an d he su ppo sed that he and Mr. Jame sF. Cavan a u gh were W . D . Smith Company . The po licy w a s

sen t to him by Mr. No la n . Witn ess d id n o t po st any n o tice s,b u t it was gen erally u nd ersto o d tha t they were in su red . Witne ss to ld his employee s by wo rd Of mo u th that they were insu red . On Ju ly 3, 1917, W. D . Smith Compa ny w a s the sameas o n May 8, Jame s F. Cavanau gh and W. D . Smith. The

jo b was completed Novemb er, 1917 . Jame s F. Cava nau gh w a s

o n the jo b some , to see how it w a s ge tting alo ng. They talkedthe jo b over.

TO Mr. Doyle : There was a co rpo ratio n at o n e time , theW . D . Smith Company, which w a s in co rpo rated in Ma in e .

Witn ess d o e s n o t know when the charter w a s su spend ed , b u tit was some yea rs ago . Since that time W . D . Smith Companyd id a jo b u nd er that nam e in Wo lla sto n . The Whitin sville jo bwas taken in Cavanau gh’ s nam e . The jo b w a s d o n e by Cav

a n a u gh and Smith as copa rtn ers . At that time the co rpo ratio nhad b een su spend ed ; it had n o t registered in this State and

had n o power to d o b u sin e ss here . Be fo re this Cavan au gh and

witn e ss had d o n e b u sin ess together . Befo re taking this jo b hetalked it over with Mr. Cavanau gh at the Parker Ho u se , B OSto n . A represen tative o f the Globe Indemn ity was a lso pre sen tat this time . At that time a co n tract was made b e tween the

Glo b e Ind emn ity and Cavanau gh. The co n tract was taken inCavanau gh’s name b ec a u sia he had a financia l stand ing and

witn e ss d id n o t . The arra ngem en t mad e b etween witn e ss and

294

Cavanau gh was kn own to the Glo b e Indemn ity Company, andit w a s talked o ver at the co n feren ce . The financing o f the jo bw a s talked over at the co n feren ce . Mr . Cavanau gh was to fu rn ish mo st Of the mo n ey ; witn e ss was to fu rn ish some o f the

gen eral expen se s . The profits were to b e d ivid ed equ ally b etwe en witn e ss and Mr. Cavanau gh. Witn e ss was to supe rin

tend the jo b , b u t d id n o t draw a ny salary o n the jo b . Therewas n o in tere st paid Cavan au gh fo r the mo n ey he pu t in .

After that arrangemen t w a s mad e at the Parker Ho u se the insu ra n ce was taken o u t . Mr. Cavanau gh fu rn ished a b o nd tothe Glo b e Ind emn ity Company. By arrangemen t mad e withMr. No lan , w itn e ss had him mee t Mr. Cavanau gh at the Pa rkerHo u se . Tha t meeting w a s in regard to the b o nd they wereto give the Glo b e Indemn ity Company . Witn e ss had made an

applicatio n fo r the b o nd that d ay from Mr. No lan . Mr. Cav

a n a u gh said he wo u ld get the b o nd in Man che ster, and he a nd

Mr. No lan had some d ispu te . Witn ess wen t in the n ext d aya nd to ld Mr. Cavan a u gh that they wo u ld give the in su ran ce toMr. No lan , a nd witn e ss o rd ered the jo b covered with in su rancethe n ext d ay withMr. No la n . Mr. Cavanau gh to ld witn e ss thatit w a s a ll right to place the in su ran ce with Mr. No la n . Witn e ss pla ced the in su ran ce and he pre sumed it w a s left en tire lyto him . Witn e ss rece ived a b ill from Mr. No la n fo r the in su ra n ce , a nd in reply witn e ss wro te a letter to Mr. No lan . (Whenshown pho tograph o f le tter witn e ss te stified tha t it w a s a c o r

rect copy.) The le tter is as fo llows

JUNE 13 , 19 17 .

T . J. NOLAN CO .,75 State Street, B oston ,

Mass .

DEAR SIR : Yo u r letter o f the 1 1th o n hand and c ontents c arefu llyno ted , and w ill say I d id no t u nd erstand the prem ium u nd er compensa tio n

po licy w as to b e paid u n til the jo b w as pra ctic a lly d on e , b e c au se there is n ow ay to d eterm in e the am o u n t u ntil tha t tim e . How ever

,I have sent

yo u r b ill to Mr . Cavan au gh as he hand les tho se m atters .

Yo u rs respe c tfu lly ,W . D . SMITH .

The ab o ve is the le tter which he sen t to Mr. No lan when hesen t witn e ss the b ill . Mr . No lan w rpte fo r witn e ss to send b ackthe po licie s . Witn e ss d o e s n o t rememb er whether this w a s

b efo re the a ccid en t o r n o t . Witn e ss d o e s n o t rememb er Mr .

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296

Witness also re c eived the fo llowing le tter dated Ju ne 25 ,

1917

JUNE 25 , 19 17 .

W. D . SMITH COMPANY, Whitin svi lle , Mass .

GENTLEMEN : We wro te yo u a w eek ago asking yo u to retu rn c erta in

po lic ies o f the Travelers Insu ran c e Company fo r can c ella tion . We wish

yo u w o u ld do so as long as it is the w ish o f Mr. Cavanau gh n o t to pay fo rthem . If the po lic ies are lost w e sho u ld b e no tified so that a lo st po licyrec e ipt can b e Ob ta ined .

You rs tru ly,THOMAS J. NOLAN CO .

In add itio n to the a b ove le tters he rece ived a te lepho ne callfrom Mr . No lan in which he asked witne ss to re tu rn the po licie s, a nd he re fu sed to d o so .

To Mr . Glea so n : His reaso n fo r re fu sing to re tu rn the po l icie s w as that he wanted to b e su re that the jo b was co veredwith in su rance , a nd he wan ted to talk with Mr . Cavana u ghperso nally ab o u t it , to see that he had insu rance a nd that the

jo b was co ve red , a nd d id no t wan t to re tu rn them u n til heknew fo r su re . Be fo re he had a chance to talk with Mr .

Cavanau gh this accid ent happe ned . Witne ss was re ady to payMr . No lan himse lf if Mr . Cavanau gh d id no t ; in o ther wo rds ,he w a s lo o king o u t fo r his o w n in tere st . Witne ss had carriedin su ra nce b e fo re o n d ifferen t jo b s , a nd it had bee n his cu stomn o t to pay u ntil the jo b was o ver. Witne ss w a s ready to paythe premium o n this case a s so o n as it co u ld b e determined .

It was the o riginal plan to have the co ntract mad e o u t in the

n ame o f W . D . Smith Company, b u t o n acco u n t Of the financ ial stand ing this was n o t d o ne . The co n tract was b e tweenCavanau gh a nd the Glo be Ind emn ity Company . The su pplie swhich were bro u ght were paid fo r in the n ame o f W . D . SmithCompany . Cavana u gh d id no t d irect the jo b ; Witne ss had fu llcharge Of it .To Mr . Do n ahu e : Witne ss d id n o t file a ny certificate with

the town clerk in So u thb ridge o r city clerk in Bo sto n sayingwho the partn ership was . Witn e ss will send in tho se po licie s .To Mr . Do yle : Witne ss had re ce ived a b ill from Mr . No lan ,

a nd it w a s in re spo n se to this b ill tha t witne ss wro te the le tterOf Ju ne 13 to Mr . No lan , sta ting that he wo u ld no t pay u ntil

97

the end Of the jo b . Witne ss wo u ld have pa id the b ill , b u t w a swaiting to se e Mr . Cavanau gh ; he was go ing to make Mr .

Cavanau gh pay it .William M . Mago u n , called by the cla iman t, te stified that he

is genera l manager o f the Ma ssa chu se tts Ra ting and In spectio nBu re au , which is a vo lu ntary asso cia tio n o f in su ra nce compan ie stran sa cting the b u sin e ss o f wo rkme n ’s compe nsa tio n in Ma ssachu se tts . It is o ne o f the ru le s o f the Bu re a u that in su rancecompan ie s issu ing Ma ssachu se tts po l icie s shall file a po rtio no f su ch co py with the Bu re a u . When asked if W . D . Smitho r W . D . Smith Co . were in su red o n a jo b in Whitin sville ,Ma ss . , u nd er d a te o f Ju ly 3, 1917, witn e ss replied tha t the o nlyevid ence he ha s in regard to that is a copy o f the po licy issu edby the Trave lers In su ra nce Compa ny a nd su ch co rre spo nd e ncewith the in su ra nce company in which they state tha t they d idn o t co n sid er the po licy w a s eve r in e ffect . He ha s no reco rdwith regard to a po licy issu ed to Jame s F . Cavan au gh o r

Cava na u gh Bro thers o n the same d a te .

Qu e stio n by Mr . Do n ahu e : If they had a Ma ssachu setts

po licy covering a Ma ssachu setts jo b they sho u ld have a re co rdo f it .Thoma s J . No lan , called b y Mr . Do yle , te stified tha t he is in

the in su ra nce bro ke rage b u sine ss u nd e r the n ame o f Thomas J .

No la n CO . , at 75 State Stree t , Bo sto n . At some time he hada talk with Mr . Smith re lative to in su ring a jo b at Whitin sville ,at his o ffice at 75 Sta te Stree t , Bo sto n . He had n o ta lk withMr . Cavana u gh a t the Pa rker Ho u se b e fo re

,

the po licy w a s

issu ed , b u t his b ro ther talked with b o th Mr . Smith and Mr .

Cava n a u gh at the Parker . The premium o n the po l icy w a s n o t

pa id . On Ju ne 1 1 witn e ss wro te to Mr . Smith re lative to apaymen t o f the premium , a s fo llows :

JUNE 1 1 , 19 17 .

W . D . SMITH COMPANY, 12 Rockland Street, Roxbu ry , Ma ss .

DEAR SIR : Yo u r w o rkm en’s c ompensatio n prem ium am ou n ting to

and pu b lic prem ium am o u nting to 325, are now du e .

Will yo u kind ly send u s a che ck fo r the prem ium . The c ompaniesa lw ays in sist o n paym ent in thirty days , a lthou gh the b onding companiesa llow a longer tim e .

Tru sting that w e m ay b e favo red by yo u ,w e rem ain

Yo u rs truly,THOMAS J. NOLAN CO .

8I

He received a reply to that le tter, signed by Mr . Smith,which is a s fo llows

JUNE 13 , 19 17 .

THOMAS J. NOLAN CO .,75 Sta te Street, B oston ,

Mass .

DEAR SIRS: Yo u r letter o f the 1 1th, o n hand and c o ntents c arefu llyn o ted , and w ill say I did no t u nderstand the prem ium o n a compen sa tio n

po licy w as to b e paid u n til the jo b w as pra c tica lly d o ne , b e c au se there isno w ay to d eterm ine the am o u n t u n til that tim e . How ever, I have sentyo u r letter to Mr. Cavanau gh as he handles tho se m atters .

Yo u rs respe c tfu lly,W. D . SMITH .

La ter he re ce ived a le tter from Mr . Cavan au gh u nd er date o f

Ju ne 18, which is a s fo llowsJUNE 18, 19 17 .

Messrs . T . J. NOLAN CO . , 75 Sta te Street, B oston ,Mass .

DEAR SIRS: If yo u have any in su ran c e on the jo b at Whitin svilleI w o u ld d eem advisab le to c an c e l sam e , as I had this all taken c are o f and

insu red w ith the at Man chester,N . H. ,

when w e first started the job .

I tho u ght Mr . No lan u nd ersto o d m e the night I m et him at the ParkerHo u se , and I to ld him I w o u ld have to give the b u siness to som e on e in

this c ity.

Tru sting yo u w ill u nderstand the situ ation ,I amYo u rs very tru ly,

The Mr . No lan re fe rred to in the ab o ve le tter is witne ss ’

b ro ther . Witn e ss w ro te to Mr . Cavana u gh a nd talked withMr . Smith o ve r the te lepho n e . The letter which he wro te toMr . Cava n au gh is a s fo llows :

JUNE 19 , 19 17 .

JAMES F . CAVANAUGH,Manchester, N . H.

DEAR SIR: We have yo u r letter o f even d ate rela tive to in su ran c e atWhitinsville . We d esire to state that w e w ere given an o rder b y Mr . Sm ith

and regret verym u ch to have it c o u nterm and ed n ow . We u nd ersto o d that

evening at the Parker Ho u se tha t yo u w ere to take c are o f the b ond o nly.

How ever, no harm has b een d o n e , and w e hope that at ano ther tim e w e willb e ab le to d o som e b u sin ess w ith yo u .

Yo u rs tru ly,

The n ext he he ard from Mr . Cava nau gh w a s whe n he cameinto the Office o n Ju ly 3 . Witn e ss ta lked with Mr . Smith o verthe te lepho n e o n Ju n e 14 a nd asked him to ret urn the po l icy .

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300

Q . (1) What is yo u r nam e in fu ll? A. My nam e is Con c etta D i

Silvestre Of the late Gaetano , fifty years o f age Of Penn e .

Q . (2) Are you the w idow Of Enric o Leone , who died on o r ab o u t

Ju ly 3, 1917 , in the United States ? A. I am the w idow o f Enric o Leone

who died the 3d Of Ju ly, 1917 , in the United Sta tes .

Q . (3) If yo u answ er to the pre c eding qu estion in the a ffirmative , statewhen yo u w ere m arried to the said Enrico Le one . A . I married EnricoLeone the tenth day o f May , 1894, b efo re a c ivil ofi c er o f the Comm u n ityOf Penne .

Q . (4) Have yo u any children b o rn o f the sa id Enrico Leon e , and if so ,wha t w ere the ir respe c tive ages on Ju ly 3 , 1917? A . I had no children bythe sa id Enric o Leone .

Q . (5) D id yo u r hu sb and emigrate to the United States ? A. Myhu sb and emigrated to the United States .

Q . (6) If yo u r answ er is “yes ,

”sta te the da te o f the sa iling for the

United States and the reaso n fo r his do ing so . A . He em igra ted on the

tenth d ay Of Septem b er, 1916, fo r the pu rpo se o f getting wo rk .

Q . (7) State whether yo u r hu sb and , the sa id Enrico Leone , wro te

yo u du ring the tim e tha t he w as in the United Sta tes and up to the tim e

o f his dea th . A . My hu sb and did write to m e du ring the tim e he was in

Am eric a and up to the date Of his dea th .

Q . (8) D id yo u r hu sb and send yo u any m oney du ring the tim e he was

in the United States and up to the tim e Of his dea th? A. My hu sb andd id send m e money d u ring the tim e he w as in Am eric a and up to the da teo f his death .

Q . (9) If so , sta te how Often su ch m oney was sent and how m u ch wassent yo u , approxima tely, du ring the year pre c eding Ju ly 3, 1917 . A. Myhu sb and sent m e m oney every m onth, in am o u n t, 100 o r 200 lire du ringthe ten mon ths he was in Am eric a

,and from Septemb er, 1916, to Ju ly,

1917, he sent in a ll lire .

Q . (10) State by which m eans yo u r hu sb and sent yo u this money.

A. My hu sb and u sed to send m e m on ey thro u gh the Ban ca B erardini o fBo sto n .

Q . (1 1) If yo u answ er qu estion 8 in the a ffirmative , pleas e state whethero r no t there w as any o ther perso n o r perso ns he lping yo u finan c ia lly du ringthe year prec ed ing Ju ly 3, 1917 . A. Du ring the yea r prec eding Ju ly, 1917 ,no o ther perso n c o ntrib u ted fin an c ially to my support .

Q . (12) Du ring the year pre c ed ing Ju ly 3, 1917 , did yo u own any rea lo r person a l property? A . Du ring the year prec eding Ju ly, 1917, I did no tpu rchas e any rea l estate , b u t I did b u y fo r myself a b ed and a few kitchenu tensils .

Q . (13) If yo u answ er qu estion 8 in the afi rm ative , sta te whether o r

no t du ring the year prec ed ing Ju ly 3, 1917, the m o ney which yo u r hu sb andsen t yo u represented the who le so u rc e o f yo u r m ain tenan c e . A . Du ringthe yearpre c eding Ju ly 3 , 1917, the mon ey that my hu sb and sent m e constitu ted a ll my support .

01

Cross-in terrogatories .

Q . (1) Plea se give yo u r fu ll nam e . A . My nam e is Con c etta Di

Silvestre Of the late Gaetan o .

Q . (2) Were yo u and yo u r children living w ith the sa id Enric o Leon e

imm ediately prio r to his em igra tion ? A . I lived w ith Enric o Leone b eforehe emigrated , and I had n o children .

Q . (3) Du ring the year prior to Ju ly 3, 1917, did yo u rec eive any

m on ey from yo u r hu sb and ? A . Du ring the year prec ed ing Ju ly 3, 1917,I rec e ived m o n ey from my hu sb and .

Q . (4) If yo u r answer to qu estion NO . 3 is in the affirma tive , sta te thedates and am o u nts re c e ived , and thro u gh what agen cy and how sent . A .

I re c eived at tim es 100 o r 200 lire perm on th, in all , ab o u t lire , thro u gh

the Ban ca B erard in i o f Bo sto n . I d o no t rem emb er the da tes prec isely.

Q . (5) Du ring the yea r prio r to Ju ly 3 , 1917, did yo u o r any o f yo u rchildren engage in any w o rk o r lab or o ther than the c are o f yo u r ho u seho ldand the c u stody Of yo u r children ? A . Du ring the year prec eding Ju ly 3,1917, I did no o ther w o rk b u t that o f d om estic w o rk .

Q . (6) If yo u r answ er to qu estion NO . 5 is in the a ffirma tive , state theam o u nt o f revenu e , e ither in m oney, farm prod u c ts o r o therw ise which

yo u o r yo u r children rec e ived from su ch employm en t du ring the sa id year .

A. I have answ ered the prec eding answ er negative ly.

Q . (7 If yo u r an sw er to qu estio n No . 5 is in the a ffirmative , state whatdispo sition yo u m ad e o f any revenu e rec eived from su ch w o rk o r lab o r.

A . I have answ ered the pre c ed ing answ er negatively .

Q . (8) Were any c on trib u tion s m ade by re latives , friend s o r any o ther

perso n s fo r the suppo rt o f yo u rse lf and yo u r children du ring the said year?If so

, sta te the da tes and am o u nts o f su ch c ontrib u tions . A . NO parents ,no friends and n o o ther person co ntrib u ted to my support d u ring the yea r.

Q . (9) D o yo u o r yo u r child ren own any real o r personal property?If so , d escrib e su ch property and its valu e . A . I d o no t own any rea lesta te . I siInply own sm a ll piec es o f fu rn itu re o f the valu e o f abo u t 100

Q . (10) Wha t was the approxim ate c o st o f living fo r yo u and yo u rchildren d u ring the year prio r to Ju ly 3, 1917? A . Fo r my suppo rt du ringthe sa id year I spent tha t which my hu sb and sent m e from Am eric a , thatis , lire .

Q . (1 1) When did yo u first see o r have read to yo u o r learn Of the su b

stan c es Oi (a)the interro ga to ries , (b)the c ro ss-interrogato ries in the abovecase ? State fu lly. A . Tod ay, is the first tim e that I am asked to su bm it

to yo u r interrogato ry and to this present one . Prio r to this I was no t to ldo f these pro c eed ings .

Q . (12) Who owned the ho u se in which yo u lived on Ju ly 3 , 1917? A .

The ho u se in which I lived o n Ju ly 3, 1917 , was own ed by o ne AlphonsoD i Fo rb ritis .

Q. (13) Was rent pa id fo r sa id ho u se ? If SO , by whom , to whom and

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how m u ch per m onth? A. I pa id my rent dire c tly to the sa id D i Forb ritisa t the rate o f 70 lire per yea r, and it w as pa id a t the end o f ea ch year.

Q . (14) How m u ch la nd was co nne c ted w ith the ho u se in which yo u

lived on Ju ly 3,1917? A . The ho u se in which I lived on the third day o f

Ju ly, 1917, had no land c onn e c ted w ith it.

Q . (15) What did yo u raise o n sa id land ? A . I answ ered the pre c edingansw er n egative lyQ . (16) What did yo u d o w ith the crops ra ised on said land ? A . I

answ ered the pre ceding answ er nega tively.

Q . (17) Give the am o u n t re c eived from sale o f sa id c rops du ring theyear pre c ed ing Ju ly 3 , 1917 . A . I answ ered the prec eding answ er nega

tive]y.

Q . (18) Who c o nstitu ted yo u r ho u seho ld o n Ju ly 3, 1917? A . Myfam ily on the 3d Of Ju ly, 1917, co nsisted Of myself and my hu sb and , Enric oLeo ne , who em igrated .

Q . (19) D id yo u have bo arders o r lodgers o n Ju ly 3 , 1917? A . I hadno bo arders upto Ju ly 3 , 1917 .

Q . (20) If yo u answ er qu estio n NO . 19 in the a ffirmative , sta te theam o u nt Of bo ard pa id b y ea ch bo arder per w eek and give the to ta l am o u ntrec e ived from a ll bo ard ers and lodgers per w eek . A . I answ ered the prec eding answ er nega tively.

Q . (21) D id yo u keep any live sto ck o n Ju ly 3, 1917? A . I had no livesto ck o n Ju ly 3, 1917 .

Q . (22) If yo u answ er qu estion NO . 21 in the a ffirm ative , state exa c tlywha t live sto ck yo u kept, and give all revenu e rec eived from sa id livesto ck du ring the year prec ed ing Ju ly 3 , 1917 . A . I have answ ered the

pre ceding answ er n ega tively.

Q . (23) Who owned sa id live sto ck , when w as it bo u ght and by whom ?A. I have answ ered the prec eding answ er negatively.

Member’

s D ec ision .

There is n o evid en ce here that the employers were in

su red by the Employers’ Liab ility Assu ran ce Co rpo ra tio n , Ltd .

Mo re over, the cla im aga in st this in su rer was n o t filed withinthe perio d pre scrib ed bv the act . The cla im again st this insu rer is d ismissed .

The evid en ce Shows that the re la tio n betwe en William D .

Sm ith a nd Jam e s F . Cavanau gh w a s that o f partn ers, a nd thatthe d ece a sed was an employe e Of the partn ership . Smith had aright to en te r in to a co n tract o f in su ran ce fo r the partn ership .

It is we ll se ttled tha t a perso n , firm o r co rpo ratio n may assumeo r b e kn own by d ifferen t n am e s, a nd co n tra ct acco rd ingly, andtha t co n tracts so e n tered in to will b e va lid a nd b ind ing if u n

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3 . As a ma tter o f law , W. D . Sm ith Company was not a su b scriber

within the m ean ing o f the Compensat ion Ac t.4. As a m atter o f law , the employers o f Leone when he was killed were

not insu red u nder the provisions o f the Compensation Ac t w ith the

Trave lers Insu ran c e Company.

5. As a matter o f law , the po licy issu ed by the Travelers Insu ranc eCompany to the W . D . Sm ith Company was a nu llity b e cau se the chartero f sa id c orpo ration had b een su spend ed by the sta te o f in c o rpo ra tio n .

6 . As a m atte r of law ,if the po licy issu ed by the Trave lers Insu ran c e

Company to W . D . Sm ith Company w as ever valid , it was efie c tively

can celed prio r to the in ju ry to Leo ne .

The claim fo r compen satio n is dismissed .

FRANK J . DONAHUE .

Filed Wedne sday, Sept . 10, 1919, at 9 A .M.

RE PORT OF MEMBE R OF INDUSTRIAL ACCIDENT BOARD .

This case was re ferred b ack to the Bo ard member fo r the

pu rpo se Of hearing n ew eviden ce o n Wedne sday, Jan . 7 , 1920,

at 9 A .M.

Appearan ce s : Frank Levero n i, E sq . , fo r cla iman t ; Lo u is C .

Doyle , E sq ., fo r Trave lers In su rance Company ; Sawyer, Hardy,

Sto n e 81. Mo rriso n (Gay Gleaso n ,E sq . , Of co u n se l) fo r E m

ployers ’ Liab ility Assu rance Co rp . , Ltd .

Qu e stio n s : The qu e stio n s are the same as at the o rigin alhearing, i ,e . , (1) whe ther the employer was a su b scrib er witheither in su rance company ; and (2) dependen cy .

Report of the E viden c e .

William D . Smith, called by the claiman t, te stified that he isthe W . D . Sm ith who te stified in this case b efo re . At thetime witn e ss applied fo r in su ran ce on this jo b where Leo newas killed he was d o ing n o o ther wo rk u nder the n ame o f

W. D . Smith Company in Whitin sville . Whatever in su rancewas written was fo r this particu lar jo b where Leo n e was killed .

This was the o n ly job they did at that time . Witn e ss appliedfor in su ran ce o n that jo b from T . J . No lan CO . Witn esstalked with Mr . No lan abo u t who was to do that jo b downthere . Witn ess first talked with Mr. No lan ab o u t the b o nd,

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and Mr. Cavanau gh said he was go ing to place the bo nd somewhere e lse ; then witne ss talked with Mr. No lan ab o u t thein su ra nce o n the jo b . Witne ss to ld Mr. No lan that he wan tedthe in su rance with the W . D . Smith Compa ny . The W. D .

Sm ith Co rpo ratio n w a s to d o the wo rk. Asked if, as a matterOf fact, the co rpo ratio n d id the jo b , witn e ss stated , so far as heknew they started in , b u t Mr. Cavan au gh paid the bills . The

W. D . Smith Company a ctu ally d id the wo rk . The W. D .

Smith Company was a Main e co rporatio n . Witn ess kn ewab o u t the cha rter having be en su spended . Witn e ss wro te tothe Secre tary Of Sta te rega rd ing the co nditio n o f the compa nyand the way o f d o ing bu sine ss, and he wro te to witn ess thatby send ing him $35 the company co u ld renew the charter.

Witn e ss spoke to Mr. Cavanau gh ab o u t it, and Mr. Cava nau ghsa id he wo u ld send the 335.

“

Q . And then this jo b tha t wasb e ing d o n e where Leo n e was killed w a s do n e , in fact, by theW . D . Smith Company? ”

Mr. Doyle : Ju st a min u te .

Mr. Do n ahu e : E xclu d ed .

Mr. Bailen : Save my rights .Le o ne w a s emplo yed by witne ss u n d er the n ame o f the

W . D . Smith Company, d o ing wo rk fo r the Ma ssa chu se ttsHighway Commissio n u nd er co n tract . Le o ne was employed bythe W . D . Smith Company a s a co rpo ra tio n . Witne ss canno tsta te how many n o tice s were po sted , b u t they were pu t u p o n

the to o l b o xe s , a nd where they u su a lly go .

Mr . Baile n : I Offer this in evid e nce (No tice to Emplo yee sa nd marked “

E xhibitMr . Doyle : I o b je c t

’

to it, u nle ss that is o ne o f the o riginaln o tice s pu t up o n the jo b .

Witne ss has n o t o ne Of the o riginal no tice s which were pu tup. Asked if the o n e o ffered in evid en ce w a s a n exact co py,except fo r the n ame , witne ss te stified ,

“We ll , it is a n exa ctcopy a s fa r as I kn ow . Tho se are the u su al no tice s w e pu tu p o n the jo b . I have n o t read it in de tail , b u t I sho u ld ju dgeit was the u su al . Mr . Cavanau gh w as advan cing mo n ey fo rthe co rpo ratio n o n this particu lar jo b . There w a s ta lk betwe enwitness a nd Mr . Cava nau gh be fo re they started the jo b abo u tse nding $35 to the Commissio n er o f Co rpo ratio ns in the State

06

o f Maine . Witn e ss do e s n o t know whe ther o r no t Mr . Cavanau gh sen t the mo ney .

Cro ss-examin ed , witne ss te stified that he came here and te stified be fo re u po n the summo ns o f Mr . Le vero n i . Witn e ss d o e sno t remember the name o f the atto rn ey, b u t he rememb ersbe ing here and te stifying, and tha t this ma tter was go n e intoat some le ngth. At the previo u s he arings witn e ss te stified to

the be st Of his memo ry at tha t time and is d o ing the samenow . Asked if he remembered te stifying that “

the co n trac twas in su ch a co nd itio n that he saw the bo nd ing company a nd

mad e arra ngemen ts to take the co n tract with a m an n amedCavanau gh, a nd the co n tract was given in Mr . Cavan au gh’ sname , b u t it w a s in te nd ed that it sho uld b e in W . D . Smith ’sn ame , b u t the reaso n why it w a s n o t w a s b eca u se Cavan a u gh’sfin a ncial standing was be tter than W . D . Smith ’s

,

” witn e ssstated that was su bstan tia lly co rrect . The co n tra ct with the

bo nd ing company was in Mr . Cavan au gh’s n ame , a nd the n Mr .

Cavan au gh made some arra ngemen t with witne ss to d o the

wo rk . Asked if he rememb ered the fo llowing : “Witn e ss d idthe jo b and srlperin tended it and lo oked after the bu sine ssju st the same as if it were his ow n . Witn e ss d id n o t re ce ivea ny sa lary ; he was to share in the profits a nd lo sse s , a nd isit tru e , witn e ss sta ted , Ye s .

” If there were a ny profits o n

this jo b , Mr. Cavan au gh a nd witn e ss were to have a certa inshare . The b rass che cks were u sed as numbers , a n d bo thwitness a nd Mr . Cavana u gh se n t some d own , a nd they we reu sed at rand om , there b e ing n o company o f a ny kind o n them .

Asked if he remembered te stifying tha t the W . D . SmithCompa ny had be en a co rpo ra tio n , b u t had go ne o u t o f existe nce ; it was a partnership , tha t is , at the time o f this affa ir ,a nd he su ppo sed that he a nd Mr . Jame s F . Cava n a u gh wereW . D . Smith Compa ny,

” witne ss stated that he d o e s no t

remembe r the exact wo rd s, b u t remembe rs some thing o f the

kind . Asked if it w as n o t a fact that at the time o f thisinsu ra n ce , at the time o f this accid en t , the W . D . Smith Company a s a co rpo ratio n was o u t o f existe nce practically, witne ssstated he kn ew it w a s o u t o f existen ce , b u t they expected to

renew it an d d o bu sin e ss u nd er W . D . Smith Company, a nd

a s a matter o f fa ct, w e d id b u siness and bo u ght materials a nd

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08

that Mr. Cavan au gh did n o t send the mo n ey. Witness knowsthat the charter o f the W. D . Smith Company ha s n ever b eenrevived . Q .

“Now , then , when yo u say that the wo rk at

Whitin sville was b e ing d o ne by the W. D . Smith Company asa co rpo ratio n , d o yo u mean that yo u an d Cavan au gh weredo ing the bu siness u nder the n ame o f the W. D . Smith Company? ”

Mr. Bailen : I pray yo u r ho n o r’ s ju dgmen t o n that.Mr. Do nahu e : Wha t is yo u r objectio n ?Mr. Bailen : The Ob jection that so mu ch te stimo ny which is

Immaterial ha s go n e in as to what this witn e ss and Cavan au ghtho u ght o r fe lt toward each o ther that the prin cipal issu e islo st sight o f, namely, the third party to the co n tract, thedeceased . Now as fa r as the d eceased is co n cern ed, bo th Mr.

Cavan au gh an d Mr. Smith are ab so lu te ly e sto pped o n the

qu e stio n Of co rpo ratio n .

Mr . Do n ahu e : Mr . Do yle ’s qu e stio n se ems to bring o u t a n

explanatio n Of a statemen t o f a certa in fact in re spo n se to o ne

o f yo u r qu e stio n s , as I u nd erstand it , and he might haveOb jected o n tha t gro u nd .

Mr . Baile n : May I make o ne fu rther statemen t . I d o n ’twan t to b e misu nd ersto o d a s to the e sto ppe l as to the ir perso nal re latio n s , provid ing the co u rt will have in mind the po in tthat I am making, that it d o e s n o t affect the d ece a sed , whateverm ay have b e en the re latio n s b etween Cavanau gh and this m a n .

Mr . Doyle : Read the qu e stio n .

Mr . Bailen : Tha t is su b ject to my o b jectio n .

Witne ss su ppo sed it w a s d o ne u nd er the W . D . Smith Company at tha t time . Witn e ss mean s that he and Cavan au ghwere d o ing the wo rk u nd er tha t name . The co rpo ra tio n w a s

o u t o f existen ce ; witne ss did n o t kn ow whether Mr . Cava n a u ghhad revive d it o r n o t , b u t they were d o ing b u sine ss u nd er the

W . D . Smith Company . Witn e ss a nd Cavanau gh were spl ittingthe profits if there were any . Witn e ss d o e s no t rememberte stifying that ‘

jo b was d o ne b y Cava nau gh and Smith ascopartn ers ; at that time the co rpo ratio n had b e en su spended ;it had n o t registered in this ‘State and had no power to d o bu sin e ss here ,

”b u t if it is in the reco rd , he mu st have . Asked if

that was ju st as tru e to -d ay as it was the n , witne ss stated ,

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Practica lly so , ye s , sir . Witne ss rece ived n o tice from Mr .

No lan that he was in su red , and Mr. No lan gave witn e ss thepolicy . Witn e ss d o e s no t remember whe ther o r no t he gavehim a ny no tice . Witne ss had d e a lings with n o o ne e lse regarding this po l icy o r the placing Of it except with Mr . No lan .

Witn e ss ha s te stified b e fo re that he d o e s no t kn ow where theno tice s came from ; he d o es n o t kn ow whe ther they came fromMr. No lan o r some o n e e lse . Witne ss gave the o rd er to his

so n , who was the timeke eper . Asked if, when he stated at thelast hearing tha t he did n o t po st any no tice s , b u t it w a s gen erally u nd ersto od that they were in su red , he rememb ered the nthat he had given his so n o rd ers to po st tho se n o tice s, witn e sste stified tha t he cann o t rememb er that he d id . Asked if he hadremembered it, wo u ld he have te stified

“The witne ss to ld his

employee s by wo rd o f mo u th that they were in su red ,” witn e ss

stated that if anyb o dy had ca lled his atten tio n to it he thinkshe wo u l d have remembered it . Witne ss remembers te ll ing them e n that they were in su red , a nd he also knows that if theyco u ld se e the n o tice s they co u ld no t re ad them becau se mo stOf them were fo re ign ers and they wo u ld have to b e to ld . Witne ss remembers perfectly we ll now that he d id o rder no tice spo sted , b e cau se he had go n e over the matter with some o f the

m e n who wo rked o n the jo b .

Re-d irect : Witn e ss n ever knew e ither Mr . Levero n i o r Mr .

Ba ilen be fo re this case came up fo r he aring , a nd he ha s be e nsu mmo ned every time the case ha s be en heard . Witne ss do e sno t rememb er te stifying that the W . D . Smith 85 CO . d id a jo bin Wo llasto n , b u t they d id d o o n e previo u s to the o ne do n e atWhitinsville , as a co rpo ratio n . Q .

“Whe n yo u te stified that

yo u and Cavana u gh were to share in the profits and lo sse s Ofthis jo b , le t me ask yo u were there any sto ckho ld ers o r shareho ld ers in that W . D . Smith Company at that time ? ” A .

There wo u ld n o t have be e n .

Re-cro ss : The sto ckho ld ers o f the o riginal co rpo ratio n werewitne ss , a m a n n amed Ga llagher and Jo hn Rega n . Ga llagherwas clerk o f the company a nd B . C . Attic ke n was the atto rn ey .

Gallagher w a s down in Bango r, Me . , Regan w a s in New Bru n swick a nd witne ss w a s the n in Maine himse lf . The se m en c o n

tinu ed to be the o rigin a l sto ckho lders up to the time the charter

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w a s su spe nded , a nd they were all stockho lders , a nd that situ atio n had practica lly n o t changed at all .Re-d irect : E . F . Smith w a s a member o f witne ss ’ family .

Witne ss he ld practically all the shares o f the stock except a fewwhich were owned by the se o ther pe ople .

Re-cro ss : Witn e ss d id say that he he ld all o f the stock o f

this company except the few share s owned by these o therpe o ple . The 996 shares stated o n the certificate were witness ’

ow n property, b u t he do e s n o t think they were ever issu ed tohim .

David B . Smith, called b y the claiman t , te stified that he is aso n o f W . D . Smith . He was employed o n the jo b in Whitin sville , where Le o ne was killed , as timeke eper and gen eral u tilitym an . Witness d id po st up no tice s similar to the o n e shownhim . He po sted at least fo u r o r five , and did so a t the requ e sto f Mr . Smith, his father . He po sted them o n the e nd o f the

ho u se , o n the shantie s , to o l b o xe s and o n e thing o r an o ther .Witne ss ha s be e n summo ned several time s, u n til this mo rn ingwhen he finally came here . Witne ss d id n o t know Le o ne perso n a lly . Witne ss sen t the repo rt o f the accide n t . When the

m an w a s kil led witne ss no tified the co ro ner, the u nd ertaker and

Mr . Smith . It was n o t witne ss ’ b u sin e ss to n o tify the insu ran ce compa ny . Witn e ss knew there were several m en o u t o n

the jo b making inve stigatio n s, b u t he d o es n o t know who theywere .

It was agre ed by co u n se l that the Trave lers In su rance Company d id no t give the assu red su fficien t n o tice fo r the cance llatio n Of this po licy .

Mr . Bailen : I Offer in evid ence the certificate o f o rganizatio nOf a co rporatio n u nde r the Gen eral Law fo r the Sta te o f Main e ,the twelfth d ay o f Febru ary, 1909 , o f the W . D . Smith Company, which give s the pu rpo se o f the co rpo ratio n as bu ild ingro ad bed s, wharve s a nd b u ild ings , and general b u sin e ss Of

co n tracto rs (amo ng o ther pu rpo se s o f the co rpo ratio n), in the

Sta te o f Main e and Ou tsid e o f the State Of Maine . (MarkedE xhibit IL”

)Mr . Do yle : I agre e tha t the W . D . Smith who ha s te stified

here regard ing this ca se is the id e n tical perso n :

n amed in the

certifica te o f co rpo ratio n o f the W . D Smith Company as o neo f the in co rporato rs a nd shareho ld ers .

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FINDINGS AND DE CISION OF THE INDUSTRIAL ACCIDE NT BOARDON RE VIEW .

The employe e having filed a claim fo r review , the Ind u strialAccid ent Bo ard heard the partie s at Bo sto n , Mass . , o n Thu rsd ay , Ju ly 1 , 1920.

Pre se nt : Me ssrs . Ke nnard , Parks, Do nahu e , Gleaso n a nd

Co gswe ll .Appe arance s : Samu e l L . Ba ilen ,

E sq . , fo r claiman t ; Lo u isC . Do yle, E sq . , fo r Trave lers In su ran ce Compa ny ; Me ssrs .Sawyer, Hardy, Sto ne 81. Mo rriso n (Gay Gleaso n , E sq . , o f

co u nse l) fo r Employe rs’ Liab ility Assu ran ce Co rp . , Ltd .

Qu e stio n s : (1) Whe ther the employer was a su b scriber to

insu ran ce u nd er the act ; a nd (2) depend en cy .

The repo rts o f the Bo ard member co n ta in a ll the ma terialevid ence .

The Indu strial Accide n t Bo ard , o n review, affirm and ad optthe find ings a nd ru l ings o f the Bo ard memb er . De ceden t ’ semplo yers n o t having been su bscrib ers to in su ran ce at the timeo f his fa tal in ju ry, n o compe nsatio n is d u e u nder the a c t .

WM . W . KE NNARD .

JOSE PH A . PARKS .

FRANK J . DONAHUE .

JOHN H . COGSWE LL .

CHE STE R E . GLE ASON .

Filed Friday, Ju ly 16, 1920, at 9 A .M .

DE CRE E OF THE SUPREME JUD ICIAL COURT .

PIERCE , J . Thi s is a pro cee d ing, u nder the Wo rkmen ’sCompen satio n Act (St . 19 1 1 , c . 751 , a nd am endmen ts there to ,n ow G . L. , c . by the admin istrato r Of E nric o Le on e who

w a s killed in the co u rse Of his emplo ymen t at Whitin svilleJu ly 3, 1917 . It wa s agre ed that the d eath aro se o u t o f the

emplo ymen t, and that W . D . Smith (o ne Of his employers)repo rted the inju ry . a nd de a th to the Ind u stria l Accid e n tBo ard o n Ju ly 20, 1917 .

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Tw o qu e stio n s were pre se nted to the Ind u strial Accid en tBo ard by the in su rer : (1) whether the employer was a su b

scrib er with e ither in su ran ce company, a nd (2) whe ther the

widow w a s a dependen t . The Bo ard member he ard the

evid e n ce o n April 9 and May 22, 1918, a nd o n Ju n e 30, 1919 .

He filed his de cision o n Sept . 10, 1919 . The Indu stria l Acciden tBoa rd referred the case b a ck to the Board memb er fo r the

pu rpo se o f he aring n ew evid e n ce u po n the same qu estio n s thatwere pre sen ted to him at the o riginal hearing . St . 191 1 , c. 751 ,Part III , St. 1912, c . 571 , 13 ; St . 1917, c . 297, 6 ;

G . L.,c . 152, 10. He fo u nd : There is nothing in the

‘n ew evid en ce ’

Offered by the claiman t to cau se m e to changethe d e cisio n mad e u po n the evid en ce heard at the fo rmerhearing. Upo n all the evid en ce . in the case I find a nd ru leas o rigina lly,

” that is, o n Sept . 10, 1919 .

In the d e cisio n re ferred to he fo u nd that There is n o

evid e nce here that the emplo yers were in su red by the Em

plo yers ’ Liability Assu ran ce Co rporation , Ltd . , that the

claim aga in st this in su rer was n o t filed within the perio dpre scrib ed by the act, and o rd ered the claim again st this insu rer d ismissed . The claiman t d o e s n o t co n test the accu racyand fin ality of this find ing a nd ru ling . The Bo ard memb e rfu rther fo u nd that the re latio n betwe en William D . Smithand Jame s F. Cavanau gh was that o f partners, a nd that .the

dec eased was a n employee Of the partnership . The claiman tagre e s that “

The decea sed w a s employed by a firm

which w a s a co partnership co n sisting Of o n e Smith and o n e

Cavanau gh.

”The member fu rther fo u nd in su b stan c e that

the firm thro u gh Smith applied fo r a nd Obtain ed in su ra n cewith the Trave lers In su ra n ce Company u nder the n ame Of“W. D . Smith Company, a co rpo ratio n that Smith a nd

Cavan a u gh were n o t a co rpo ratio n a nd were n o t the perso n swith whom the in su rer co n tracted . In this co nn e ctio n he

fo u nd that There is n o evid en ce here Of frau d o n the part OfSmith, u n le ss it is the frau d Of n o n-disclo su re . The applicationfo r in su ran ce is n o t in evid en ce , b u t Smith kn ew from the

po licy that the in su rer was co n tracting with a co rpo ratio nand n o t with him as an ind ivid u a l o r with him and Cava nau ghas partners, and ru led “That the employers in this case were

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n o t in su red w ith the Trave lers In su ran ce Company to paycompen satio n to the ir employee s .Upo n the find ings o f fact, at the requ e st o f the in su re r, themember ru led : (1)

“As a matter o f law, the d epend en t is no ten titled to c ompen satio n from the Trave lers In su ran ce Company ;

”

(2)“ If the co n tract fo r the wo rk u nd er co n stru ctio n

at the time Le o ne was killed was let o u t to Cavanau gh a nd

was being execu ted by him thro u gh Smith as his agen t, o r byCavanau gh a nd Smith as co partners, the Trave lers In su ran c eCompany is n o t liab le to pay compen satio n in this case becau seit issu ed a po licy o n W. D . Smith Company, a co rpo ratio n ;

”

(3)“As a matter o f law, W. D . Smith Company was n o t a

su b scriber within the mean ing o f the Compen satio n Acta nd (4)

“As a matter o f law, the employers o f Le o n e when hewas killed were n o t in su red u nd er the pro visio n s o f the Com

pensa tio n Act with the Travelers In su ran ce Company .

”

The perso nal repre sen tative o f the employee filed a claim fo rreview . The Ind u strial Accid en t Bo ard heard the partie s o nJu ly 1 , 1920, a nd filed o n Ju ly 16, 1920, the find ing a nd

d e cisio n which fo llows : The repo rts o f the Bo ardmemb er co ntain all the material evid e n c e . The Ind u strialAccid en t Bo ard , o n review, affirm a nd ad o pt the find ings andru lings o f the Bo ard memb er . De ced en t ’s employers , n o t

having been su b scribers to in su ran ce at the time o f his fatalin ju ry, no compen satio n is d u e u nd er the act .” Upo n entryo f the d e cisio n o f the Ind u strial Accid en t Bo ard in the Su

perio r Co u rt ,“ this cau se came o n to b e heard , a nd it ap

pearing that the Ind u strial Accid en t Bo ard ha s fo u nd thatthe employer o f the d eceased employee was n o t in su red withthe Trave lers In su ran ce Company u nd er the provisio n s o f

the Wo rkmen ’s Compen satio n Act at the time o f the in ju ryto the employe e ,

”the Su perio r Co u rt “

o rd ered a nd d e creedthat the claim o f the admin istrato r o f the d e c eased employee ,E nrico Le o n e , again st the Trave lers In su ran ce Company fo rcompen satio n b e a nd the same hereby is d ismissed .

”The case

is b e fo re this co u rt o n a n appeal from the ab o ve d ecree .

The o n e co n tro lling fact upo n which the right o f the claiman tfo r go o d o r ill is to stand o r fall is the find ing that “

The

co n tract o f in su ran ce here is w ith the W . D . Smith Company,

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5 (G . L. , c . On the o ther hand , it take s away from the

employer a nd su b scrib er his commo n-law d e fence o f negligenceo f the employee , n egligence o f fe llow servan ts and the a ssu mp

tio n o f the risk o f the employmen t . The case Of Yo u ng a .

Du nca n , 218 Mass . 345, is au tho rity fo r the right to have aju ry d e termine in a commo n-law actio n whether the employerwas a su b scrib er a nd whe ther the employee had given n o tice ,at the time o f the co n tract o f hire , o f his e lectio n to retainhis commo n-law rights in cases where e ither qu e stio n is o ne o f

d ispu ted fact . It is n o t an au tho rity, fo r it d o e s n o t su ppo rtthe co n ten tio n o f the admin istrato r that e ither o ne o f su chqu e stio n s o f fact may b e d etermined by a ju ry to b e impan e lledin a n actio n u nder the Wo rkmen ’ s Compen satio n Act . Itre su lts that the decrees o f the Su perio r Co u rt mu st b e affirmed .

Filed May 28, 1921 .

D ec ree Afirmed .

CASE NO . 10594 . (239 Mass .

DOMINICK CAPONE , E mployee .

A . J . M . ANDE RSON MFG. CO . , E mployer .

LONDON GUARANTE E AND ACCIDE NT COMPANY, Insu rer.

INCAPACITY FOR WORK.

If an in jured employee , subsequen t to the da te o f his in jury, is in fa ct able too pe ra te the m a chin e upo n which he w as engaged a t the tim e o f his in jury , a n dc an se cure em ploym en t a t this wo rk , he is n o t unde r any in capa city to labo rresu lting from the in jury . But if the in j ury preven ts him from pursuin g hisfo rm er em ploym en t , o r if by re aso n o f bus in ess co nditio n s he cann o t se curewo rk a t this o ccupa tio n , an d his ability to labo r in o ther pursuits is im pa iredby the in jury , this circum stan ce is im po rtan t in de te rm in ing the am o u n t o fwages he c an e a rn , an d Sho uld b e taken in to a ccoun t in de ciding Wha t c ompen sa tio n sho uld b e awa rded him be cause o f his dim in ished capa city to wo rk.

While the em ployee , in comm o n with o thers , m ust be a r the lo ss re sultin gfrom busin e ss depressio n (se e D u rn ey ’

s Case , 222 Mass . if he co uld n o t

re turn to his fo rm e r em ploym en t be cause o f bu sin e ss co nditio n s , an d so ughtfo r o r se cured em ploym en t e lsewhere which he could pe rfo rm if it we re n o t

fo r his in ability be c ause o f his in jury , his e arn in g powe r is lessen ed an d he

is en titled to com pen sa tio n . See Sullivan ’

s Case , 218 Mass . 141 ; D u prey’

s

C a se , 2 19 Mass . 189 ; Septim o’

s Ca se , 219 Mass . 430 ; Barry’s Case , 235Mass . 408.

RE COMMITTAL .

Where it has been foun d tha t be cause o f the em plo yee ’s in jury his e arn ing capa cityis reduced , a n d n o fin d ing has bee n m ade tha t he fa iled to se cure wo rk a t

his fo rm er em ploym en t , o r tha t his efi c ien cy in tha t wo rk w as in any w ay

im pa ired , the ca s e should b e re comm itted to the Industria l Acciden t Bo a rdfo r further he arin g o n this po in t .

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RE PORT OF MEMBE R OF INDUSTRIAL ACCIDENT BOARD .

The memb er o f the Indu strial Acciden t Bo ard appo in tedu nd er the provisio n s o f Part III , sectio n 12, chapter 751 , Actso f 191 1 , a nd amendmen ts there to , having heard the parties inthe ab ove-named case at the State Ho u se , Bo sto n , Mass . , o nMo nday, Ja n . 3, 1921 , at 2 P .M. , repo rts as fo llowsAppearan ces : Mau rice E . Schneid er, E sq . , co u n se l fo r em

ployee ; Jo seph R. Fu ller, E sq . , co u n se l fo r in su rer.

Qu estio n : In capacity.

Agreed Statement of Fa cts .

E mployee was in ju red while wo rking o n a milling machin e o nApril 29, 1920. As a re su lt o f his in ju ry the first phalange o f

the ring finger o f his left hand w a s ampu tated . His averagewe ekly wage s were He w a s paid compen satio n at $16a week up to D e c . 2

,1920, at which time it was d isco n tin u ed .

Report of the E viden c e .

Domin ick Capo n e , the employe e , te stified su b stan tially asfo llows : That he to ok a jo b in a gro cery sto re at the co rn er o f

Prince and Thatcher stre ets after he w a s examin ed by D r.

Blan chard o n Novemb er 22. He had to tie up b u nd le s, liftb oxe s, a nd pile them up. He d id gen eral wo rk aro u nd the

sto re . He w en t to wo rk o n Decemb er 4 and wo rked ab o u tthree ho u rs . He gave u p b ecau se he w a s pu t to wo rk pilingu p heavy b oxe s a nd he co u ld n o t wo rk a ny lo nger. He fe ltpain in his finger. He go t a jo b with H . D . Fo ss cho co latefacto ry in the sto ck ro om . He had to carry b o xe s from the

sto ck ro om to the tru cks . The wo od en b oxe s weighed ab o u t200 po u nd s . He wen t aro u nd lo oking fo r o ther w o rk, b u tco u ld no t get a ny . He fee ls pain in his finger even when heis n o t wo rking . He ha s pain aro u nd the b o n e where the scaris . He is also affected by the weather. He cann o t to u ch ab ox, as his finger is so pain fu l .By the Commissio n er : That he fee ls the pain in side o f his

finger. He had to give up wo rk o n acco u n t o f the pain .

On cro ss-examin atio n : That all he ha s wo rked sin ce the

accid en t is the time he wo rked three ho u rs . He tried to lo ok

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fo r a jo b , a nd the o n ly thing he co u ld find w a s the o n e withH . D . Fo ss ; that it w a s heavy work a nd he d id n o t try it .He wen t to the Fo ss Com pany ab o u t Decemb er 6 .

On re-d irect examinatio n : That he wen t aro u nd to try to

get a jo b since he le ft the Fo ss Company, b u t co u ld n o t find

anything . Men were b eing laid o ff and there were no jo b s .He d o e s n o t wan t to lift b oxe s . He co u ld d o swe eping . He

wen t to ab o u t n in e places after he left Fo ss Company.

D r. D om ez io A . Co sta, called by claiman t , te stified su b stan

tia lly as fo llows : That he saw employee ab o u t D e c . 27 , 1920,

fo r the first time . He co u ld d o wo rk which d id n o t requ irehim to u se the in ju red finger o r strike it . The stump ha s theappearan ce o f a pain fu l o n e , b o th o b jective ly a nd su b je ctively.

He tho u ght employee ha s some pain in the stump , a nd if hehad o ccasio n to strike it he wo u ld have a go o d d eal mo re . Heb e lieves he ha s a tiny n erve cau ght in o ne o f the scars, whichwo u ld give him a certain amo u n t o f pain . He d id n o t thinkthe pain en tire ly d u e to disu se . Baking a nd massage mighthe lp him ; if the pain persisted fo r a lo ng time he d id n o t see

a ny o ther w ay to he lp him than to remove the sca r a nd fo rma n ew flap . He ha s very little flap a nd practically no thing b u tskin over the b o n e . He co u ld d o wo rk which requ ired him to

carry heavy Ob jects, b u t it wo u ld give him some pain . If hew a s care fu l n o t to strike his finger he co u ld d o practica llyanything ; if he strike s his finger tw o o r three times it m ightmake a n eu ro tic o u t o f him . He co n siders this a n u n u su al case ,as the pain d o e s no t last from six to seven m o n ths a s it ha s inhis case .

On cro ss-examin atio n : That the skin o u ght to get tou gherthe mo re he u se s his finger, a nd if the skin go t to u gher it wo u ldb e less sen sitive . The m o re u se he gives his finger after hegets accu stom ed to wo rk, the le ss pain he will have . His finge rwill get b e tter in tim e by massage a nd b aking ; n o matterwhat he d o e s, he is go ing to have a certain am o u n t o f painb ecau se the cu ticle is tend er. As so o n as the cu ticle hard en su p, the pain will go away in go o d part. He o u ght to b e ab leto d o certain type s o f wo rk with little o r no pain . He cou ldwo rk with small, so ft Ob jects where he wo u ld n o t hit his fingerat all . As he grad u ally increases the strength o f his finger he

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320

B oa rd Member’

s D ecis ion .

In this case the employee , o n April 29 , 1920, rece ived an

in ju ry arising o u t Of and in the co u rse o f his employmen t . Hisaverage weekly wage s were His wo rk was that of opera ting a milling machine in c o nne ctio n with which he re ce ivedan in ju ry cau sing a traumatic ampu tatio n o f the terminalphalange Of his left ring finger . He was paid to ta l incapacitycompensatio n at $16 a week u ntil D e c . 3, 1920, when it wasdisco ntinu ed by a Bo ard m emb er o n applicatio n , witho u t prejudice to a hearing .

It is fo u nd that the terminal phalange ha s b e en slower thanu su ally is the case in co n tin u ing se ns itive at the stump . PartOf the stump is covered thin ly with the Skin , and it appearsthat there may b e a filamen t o f nerve cau ght in the end o r nearthe su rface where it strike s when the hand is wo rking . The

employee tried o nce to d o heavy work in a grocery sto re , whichhe was o b liged to give u p after a few ho u rs o n acco u nt o f thesens itive co nd itio n o f the finger when d o ing heavy lifting . Itappears that he is at pre sen t no t in a co nd itio n by reaso n o f the

finger to perfo rm general heavy wo rk, b u t that he ha s a partiale arn ing capacity, which is fo u nd to b e at the ra te o f $12 a weeku nd er Ord inary b u siness and lab o r co nd itio ns . He is therefo reentitled to partia l incapacity compe n satio n o f per week,b e ing tw o -third s the d ifference b etween $12 a nd his fo rmeraverage weekly wage o f said a we ek to b e paidfrom Dec . 3, 1920, when compe nsatio n was d isco ntinu ed , to

Jan . 3 , 1921 , the date o f the hearing , viz . , fo u r a nd threeseven th weeks , amo u n ting to said compe nsatio n to

co n tin u e at the rate o f a we ek in acco rdance with the

provisio n s o f the act . The rights o f the partie s are reservedu nd er sectio n 12, Part III.

DAVID T . DICKINSON .

Filed Friday, Ja n . 14, 1921 , at 9 A .M.

FIND INGS AND DE CISION OF THE INDUSTRIAL ACCID E NT BOARD .

The insu rer having filed a claim fo r review, the Ind u strialAccid en t Bo ard he a rd the partie s at Bo sto n , Mass . , o n Thu rsd ay , Jan . 27, 1921 , at A .M.

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Pre sen t : Me ssrs . D ickin so n , Parks , Do nahu e , Gleaso n and

Co gswe ll .Appeara nce s : Jo seph R. Fu ller, E sq .

,fo r in su rer ; Mau rice

E . Schne ider , E sq . , fo r employee .

Qu e stio n : Incapacity .

The repo rt o f the Bo ard memb er co ntain s all the materialevid ence in this case .

The Ind u strial Acciden t Bo ard , o n review, affirm and ad o ptthe find ings and ru l ings o f the Bo ard memb er, u nd er which ato tal compen satio n is d u e the employe e to Jan . 3, 1921 , o f

partial incapa city compen satio n to b e co ntinu ed at therate o f a week, su b ject to the pro visio ns o f the act .

DAVID T . DICKINSON .

JOSE PH A . PARKS.

CHE STE R E . GLE ASON .

JOHN H . COGSWE LL .

Filed Wed ne sd ay , Feb . 9 , 1921 , at 9 A .M.

DISSE NTING OPINION .

The qu e stio n in this case is, as I see it, whe ther the em

ployee is incapacitated fo r the wo rk he w a s d o ing at the timeo f his in ju ry, i .e . , operating a m illing machin e , a nd the Bo ard

’ sd ecisio n award s compe nsatio n b ecau se the employee w a s fo u ndto b e u nab le to pile up he avy b o xe s in an employmen t atwhich he had never engaged b e fo re his in ju ry, so far a s the

evide nce shows . There is no evid e nce to show that he cann o tdo the wo rk he w a s d o ing when in ju red , and D r . Blan chard ’srepo rt is evid e nce that he c a n . The scar o n emplo yee ’s finger,acco rd ing to the evid e n ce , is o n the d o rsal su rface , and n o t o n

the palmar su rface , so that if there is a nerve invo lveme nt itsho u ld n o t inte rfere with any wo rk that he co u ld o therwise d o .

Fo r the se reaso ns and b e ca u se I am relu ctant to b e lieve that thelo ss o f the terminal phalange o n the ring finger o f the left handco u ld cau se lo ss o f mo re than 50 per cen t in a n emplo yee ’searn ing capacity, a s the Bo ard find , I d issent .

FRANK J . DONAHUE .

Filed Wednesday, Feb . 9 , 1921 , at 9 A .M.

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DE CRE E OF SUPREME “ JUD ICIAL COURT .

CARROLL, J . The employee was in ju red while working o n amilling machin e o n April 29 1920. As a re su lt o f his in ju rythe first phalange o f the rIng finger o n the le ft ha nd w a s

am pu tated . His average weekly wage s were He w a s

paid compen satio n to D e c . 2, 1920. On a rehearing o f the

c ase it w a s fo u nd that the in ju red finger w a s sen sitive , thestump thinly co vered with skin , and that there may b e afilamen t o f n erve cau ght in the end o r n ear the su rfacewhere it strike s when the hand is wo rking ;

” that the em

plo yee Obtain ed em ploymen t in a gro cery sto re , b u t w a s u nab leto d o wo rk b e cau se o f the c o nd itio n o f his finger, a nd o n thisacco u n t can n o t perfo rm “ gen era l he avy wo rk a nd that heha s a partial earn ing capacity o f $12 a we ek . He was award edcompen satio n o f a week, tha t b e ing tw o -third s o f the

differen ce b etween $12 a nd his fo rmer weekly wage s o ffrom D e c . 3, 1920, to Jan . 3 , 1921 , to co n tin u e u nd er provisio n so f the statu te . The in su rer appealed from the d e cre e o f the

Su perio r Co u rt a ffirming the find ings o f the Ind u strial Accid en tBo ard , o n the gro u nd that there w a s n o evid en ce tha t theemployee was in capacitated from do ing the work o f operatin ga milling machin e at which wo rk he w a s employed whenin ju red .

St . 1914, c, 708, 5 (G . L. , c . 152, provid e s thatwhile the in capa city fo r wo rk re su lting from the in ju ry ispartial , the in ju red employe e shall rece ive a we ekly compen satio n equ al to 6633 per cen t o f the difference b etwee n his averageweekly wage s b e fo re the in ju ry and the average weekly wage she is ab le to earn thereafter. When the employe e w a s in ju redhis wo rk was that o f operating a milling ma chin e . If o n D e c .

3, 1920 (from which time he . was fo u nd to b e partia lly incapacitated fo r lab o r), he w a s in fa ct ab le to Operate su ch amachine a nd co u ld secu re employmen t at this work , thenthere was n o incapacity to lab o r re su lting from the in ju ry .

B u t if his in ju red finger prevented his pu rsu ing his fo rmeremplo ymen t, o r if by rea so n o f b u sin e ss co nd itio n s he co u ldn o t secu re wo rk at this Occu pation and his ab ility to lab o r in

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CASE NO . 9980. (240 Mass .

NEWTON GOLDEN, E mployee .

WORCE STE R E LE CTRIC LIGHT COMPANY, Employer.

E MPLOYE RS LIABILITY ASSURANCE CORPORATION,su rer.

GE RTRUD E R. DOYLE , Masseu s e .

PROCE D URE .

When m edi ca l fee s are invo lved , the pro per pro cedure to b e fo llowed is to re fer thecase to a single m em be r to hear the eviden ce and repo rt sam e to the In dustri a lAcciden t Bo ard fo r de cisio n , this pro cedure d ifi'

e ring m a teria lly from tha tspe cified when the in surer an d the in jured em ployee fa il to re a ch an agreem en tas to the com pensa tio n Of the la tter. In su ch case s the cla im is ass ign ed fo rhea rin g by a single m em be r, w ho file s hi s de c isio n , su bje ct to review be fo re thefull Bo ard . Se e Hu xen

'

s Case , 226 Mass . 292 .

MASSAGE AS ME D ICAL SE RVICE S .

While the term m edica l services ,” if used witho ut lim ita tio n , m ay b e su sceptibleo f a bro ad co n structio n , the sta tute clearly in d ica te s tha t tho se wo rds , a s

there in used (G . L. , c . 152 , 5 are restricted to m e d ica l assistan ce renderedby the physicia n , o r under his dire ctio n an d co n tro l . It is n o t n e ce ssary tode cide whe ther m assa ge m ay b e em ployed in co nn e ctio n with o r a s a pa rt o ftre a tm en t by a physician , an d un der su ch circ um stan ces pro perly classed a s

m edi ca l Service s . The m a ssa ge pe rfo rm ed , so far a s it appea rs so le ly upo n theem ployee ’

s reque st , an d n o t a s a part o f tre a tm en t by a physician , w as n o t

m edica l se rvice s within the sta tute . Se e Peo ple v. Pierso n , 176 N . Y. 201 , 68

N . E . 249 , 63 L . R. A . 187 .

FINDINGS AND DE CISION OF THE INDUSTRIAL ACCIDE NT BOARD .

The ab o ve case , the requ e st o f the ma sse u se fo r the approvalo f her fe e fo r service s rend ered the employee u nder Part II ,sectio n 5, o n the gro u nd that this is an u n u su al case , was he a rdby Mr . Dickin so n , represen ting the Bo ard , a t City Hall ,Wo rcester, Mass . , o n Tu e sd ay, Sept . 7, 1920, at 10 A .M.

Appearan ce s : J . Jo seph McCarthy , E sq . , co u n se l fo r em

ployee ; Herb ert H . Wise , E sq . , co u n se l fo r in su rer.

Qu e stio n : Whether the service s o f Miss Gertru d e R. Doyleas ma sseu se were med ical service s in a n u n u su al case fo r theem ploye e , and if so , to what exten t, and what is a rea so nab lecha rge .

Agre ed statemen t o f facts mad e by the claimant, Miss Gertru d e R. Doyle , a nd co u n se l fo r the partie s at the hearing .

E m ployee w as in ju red o n March 29 , 1918, while wo rking fo rthe Wo rce ster E lectric Light Company . He fell a d istance o f

25

20 feet, striking his shou ld er, which re su lted in completeatro phy o f his right hand and a rm . He was pa id compen satio n fo r seven mo n ths fo llowing the in ju ry, a nd was later paid$500 fo r lo ss o f the u se o f his hand . He was n eve r paid any

thing fo r pa rtial d isab ility. He w a s treated every d ay fromSeptemb er, 1918, to the presen t time , practically o n e ye ar . He

ha s b e en tre a ted six d ays a week from the Mo nd ay fo llowingLab o r Day, 1919 , to the pre sen t time , with the exceptio n o f

Christm as Day, tw o d ays in Feb ru a ry , a nd the Sa tu rdays o f

Au gu st a nd Septemb er. Employe e had a ho spital b ill o f

in Feb ru ary, 1920. He was employed a t the time o f his

in ju ry a s a machin ist, a nd his wage s were $19 a we ek . He wentto work fo llowing the in ju ry in Octo b er, 1918, as a watchman .

He is an e levato r fre ighter. The b ill fo r massaging amo u n tedto $909, which co n sisted o f 303 tre a tmen ts at $3 a treatmen t.

D ec ision of B oa rd .

The Ind u stria l Accid en t Bo a rd find a nd ru le , u po n a ll the

evid ence , that this is a n u n u su a l ca se u nd er Part II , sectio n 5o f the a c t, the in ju ry o f March 29 , 1918, having re su lted incomple te atrophy o f the employee ’s right ha nd a nd a rm , a nd

n ece ssita ting med ical treatmen t by the petitio n er, Gertru d e R.

q le , a s ma sse u se .

It is fo u nd tha t $606, a llowing $2 per tre a tmen t, is a re a so nab le b ill fo r the service s rend ered by the petitio n er, and thisb ill is appro ved fo r paymen t by the in su rer .

WM. W. KE NNARD .

JOSE PH A . PARKS .

DAVID T . DICKINSON .

CHE STE R E . GLE ASON .

DE CRE E OF THE SUPRE ME JUDICIAL COURT .

JE NNE Y, J . The employee , o n March 29, 1918, while wo rking fo r the Wo rce ster E lectric Light Company, rece ived a n in

ju ry to his sho u ld er re su lting in the complete a trophy o f his

right hand a nd arm . On Jan . 15, 1920, the in su rer paid to

him , u nd er the pro visio n s o f the Wo rkmen ’ s Compen sa tio nAct, $500 as specific compen sa tio n fo r

“the lo ss o f the u se Of

his hand ,”

apparen tly o n the gro u nd that it had b e en so in

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ju red as to b e perman en tly in capab le o f u se . He w a s alsopaid compen satio n fo r seven mo n ths fo llowing the in ju ry, b u trece ived nothing fo r partial d isab ility .

From early in Septemb er, 1919 , to the date o f the hearingu po n the petitio n here inafte r d e scribed , he ha s b ee n treatedu po n three hu ndred a nd three d ifferen t d ays by Gertru d e R.

Doyle as masse u se . Her bill fo r service s amo u n ts to $909 .

The pre sen t pro ce ed ing was b egu n by the pe titio n o f the

masse u se fo r the approval o f her charge s u nd er St . 191 1 , c .571 , Part III , 13, as amend ed by St . 1914, c . 708, 12, and

St . 1917, c . 297, 12, now co n tained in G . L. , c . 152, 13 .

This sectio n o f the sta tu te provide s that the fee s Of atto rn eysa nd physician s and charge s o f ho spitals fo r service s u nd er thea c t shall b e su b ject to the appro val o f the Ind u stria l Accid en tB o ard .

A petitio n by the masseu se fo r the approva l o f her b ill w a sfiled with the Bo ard and hea rd by a single memb er, u po n who serepo rt o f the facts the Bo ard fo u nd that the natu re o f the

in ju ry co n stitu ted “an u n u su a l ca se ” (St . 191 1 , c . 571 , Part

II , 5, as amend ed by St . 1914, c . 708, 1 , a nd St . 1917, c .

198, n ow G . L. , c . 152, in asmu ch a s it re su lted in c om

plete atrophy o f the right ha nd and arm o f the employe e ; thatthe amo u n t was a re a so nab le charge fo r the services , and o r

d ered its payment by the in su rer .

The procedu re in this case was co rrect . The statu te d idn o t provid e fo r the d ecisio n o f a single memb er which w a s su b

jc e t to review . The pro ced u re d iffers materially from thatspecified when the in su rer and the in ju red employee fail torea ch an agre emen t as to the compen satio n o f the la tter. In

su ch ca se s the cla im is a ssign ed fo r he aring by a single memb ero f the Bo a rd , who se

“d ecisio n to ge ther with a statemen t

Of the evide nce , his find ings o f fact, ru lings Of law, a nd any

o ther ma tters pertin en t to qu e stio n s arising b efo re him

"is]filed with the Ind u stria l Accid en t Bo ard . Un le ss a claimfo r review is filed by e ither party within seven d ays,

”the d e

c isio n o f the single memb er is enfo rceab le u nd er the statu te.St . 191 1 , c . 751 , Pa rt III , 7, as amend ed by St . 1912, c . 571 ,

12, and St . 1917, c . 297, 4, G . L. , c . 152, 8. In the

pro ce ed ings n ow co n sid ered n o d ecision o f a single memb er was

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328

CASE 7223 .1 (236 Mass .

FRE DE RICK SCIOLA , E mployee .

W . E . TILLOTSON MANUFACTURING COMPANY, Employer.

E MPLOYE RS LIABILITY ASSURANCE CORPORATION, LTD . , Ins u rer.

PROCE D URE ON APPE AL.

Where the Wo rkm en’

s Com pe n sa tio n Act provide s tha t any party in in te re st m ay

pre se n t certified copie s Of an o rder o r de cisio n Of the Industria l Acciden t Bo ardan d a ll papers in co nn e ctio n therewith , to the su pe rio r co urt ,” whereupo nsa id co urt Sha ll re nde r a de cree in a cco rd an ce the rewith ," the filin g in court o fthe required pape rs as a part o f its re co rds is a com plian ce with the sta tute , an dn o appe a l is perm itted upo n questio n s o f fa ct o r from a decre e based upo na n o rder o r de cis io n o f the bo a rd which has n o t been pre sen ted to the co urtwithin ten days afte r n o tice o f the filin g thereo f by the bo ard ; a n d if the re

quired papers are n o t presen ted to the Superio r Co urt in a cco rdan ce with thisrequirem en t , it is the duty o f the Superio r Co urt to en fo rce the awa rd unl essthere is lega l re aso n to the co n tra ry . See Yo un g 0 . D un can , 218 Mass . 346 ;

Hun n ewe ll ’s Case , 220 Mass . 351 ; McPhee’

s Case , 222 Mass . 1 ; Brown ’

s

C ase , 228 Mass . 3 1 ; D em psey ’

s Case , 230 Mass . 583 ; Swan 0 . Justice s o f theSuperio r Co u rt , 222 Mass . 542 .

JURISD ICTION OF COURT .

The sta tuto ry requirem en t as to the prese n tatio n o f certified co pies o f an o rde r o rde cis io n o f the Industria l Acciden t Bo ard is a co nditio n pre ceden t to the jurisd ictio n Oi the Superio r Co urt , a n d where the sta tuto ry requirem en t is n o t c omplied with , the Superio r Co urt is without jurisdictio n to en te r a de cre e , an d

such de cre e , if en tered , is Of n o efi'

e c t , the cle ar wo rds o f the sta tute requirin gthe su bm issio n Of co pie s which be a r the requisite eviden ce o f authen ticity .

The Suprem e Judicia l Co urt is n o t bo und to give any efie c t to a de cre e Of theSuperio r Co urt en te red who lly witho ut jurisdictio n . Se e Tibbe tts v. Handy ,145 Mass . 537 ; M cPhe e

’

s C a se , 222 Ma ss . 1 ; Hu m phrey ’

s Ca se , 226 Ma ss .

143 ; Fo urth Na tio n a l Ban k 11 . Me ad , 214 Mass . 549 ; E a to n v. E a to n , 233

Mass . 351 ; Leva ngie'

s Case , 228 Ma ss . 213 ; Sterling ’s Case , 233 Ma ss . 485 ;

Martin ’

s Ca se , 23 1 Ma ss . 402 .

FIND INGS OF FACT .

Whe re , a fte r pro pe r pape rs are en te red , a ltho ugh m o re than te n days from the

filin g o f the de cisio n Of the Bo ard ha s e lapsed , the ca se is pro perly be fo re theSuperio r Co urt fo r such a ctio n a s the sta tute perm its , an d n o autho rity existsto review o r to disturb the fin dings Of fa ct m ade by the Bo a rd if they a re

fo u n ded o n wa rra n table eviden ce , a n d erro r in the adm issio n o r exclusio n o f

eviden ce is n o t gro un d fo r reve rsa l unl e ss n e ce ssa ry to pro te ct substan tia lrights ; an d a like re sult m ust fo llow whe re there has be e n fa ilure to Ofier evi

den ce . See Pige o n ’

s Ca se , 216 M a ss . 51 ; G o rski ’s Case , 227 Ma ss . 456 ; Fitzgibbo n ’

s Ca se , 230 Ma ss . 473 ; Mo ran’

s Ca se , 230 M a ss . 500 ; M al lo ry ’

s Ca se ,

231 Mass . 225 ; M cC a rthy’

s Ca se , 23 1 Ma ss . 259 ; Be ckl e s ’ Ca se , 230Ma ss . 272 ;

Fierro ’

s Ca se , 223 Ma ss . 378.

D E LE GATION OF LE G ISLATIVE POWE RS .

The Legisla ture , un de r St . 19 13 , c . 813 , ha d the right to de lega te to the Sta te Bo ardo f Labo r a n d In dustrie s its powe r to autho riz e the m aking Of rule s , regula tio n san d o rders fo r the preven tio n o f a cciden ts . Se e Comm o nwe a lth v. Slo cum , 230

Ma ss . 180, 190.

1 This c ase w as om itte d b y ina dverten c e from B u lletin No . 21 .

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JUD ICIAL NOTICE .

The Industria l Acciden t Bo ard co u l d take judicia l n o tice Of the ru les adopted bythe Sta te Bo a rd o f Labo r an d Industrie s , unde r the autho rity o f St . 19 13 , c .813 . Se e Ca rro ll ’s Ca se , 225 Ma ss . 203 ; Wa lsh ’s Ca se , 227 Mass . 34 1 .

SE RIOUS AND WILLFUL MISCOND UCT .

The re fusa l o f the Industria l Acciden t Bo a rd to ru l e , a s a m a tter o f law , tha t thefa ilure to in sta ll sa fe ty device s under ru l es ado pted by the Sta te Bo a rd o f

Labo r an d Industrie s co n stituted serious an d willful m isco nduct o n the pa rt Ofthe em ployer , if such om issio n re su lted in in jury , is a co rre ct ruling . See

Burn s ’ Ca se , 218 Ma ss . 8 ; Riley ’s Ca se . 227 M as s . 55 ; Be ckle s ’ Case , 230Mass . 272 .

RE COMMITTAL .

While o rdin a rily re comm itta l o f a case to the Bo a rd fo r further he arin g is withinthe discre tio n o f the sitting judge , whe re it appe a rs tha t the a ctio n w as takenso le ly fo r the purpo se o f dire ctin g a re co n sidera tio n Of co rre ct ru lin gs o f law

o r Of fin din gs o f fa ct base d o n d u e co n sidera tio n Of a ll que stio ns Of law , the

a ctio n Of the Supe rio r Court m ay b e reviewed , an d the In dustria l Acciden tBo ard , having given co n sidera tio n to the sa fe ty ru l e s adopted by the Sta teBo ard Of Labo r an d Industries , sho uld n o t have be en o rdered by the Superio rCo urt to re co n sider its de cis io n so fa r as it w a s o n e o f fa ct ; an d if the a ctio n o f

the Bo a rd b e regarded as a ruling o f law it w as co rre ct . See D o herty ’s Ca se ,222 Ma ss . 98 ; Brown ’

s Ca se , 228 M a ss . 3 1 ; Fie rro ’

s Case , 223 Mass . 378 ;

Ca rro ll ’s Ca se , 225 Mass . 203 ; Com erfo rd’

s Case , 224 Mass . 571 .

INTE RLOCUTORY AND FINAL D E CRE E S .

Whe re the fin a l de cre e co n tem pla ted is o n e from which an appe a l will lie , the pra otice fo llows tha t in equ ity , an d unl e ss o therwise provided , an appe a l lies frombo th in te rlo cuto ry an d fin a l de cre e s ; an d the rule tha t an appe a l from an ih

terlo c u to ry de cre e will n o t b e co n side red be fo re the en try o f a fin a l de cre e do e sn o t pre clude the co n side ra tio n Of such an appe a l whe re n o appe a l lie s from a

fin a l de cree . See K eo han e’

s Ca se . 232 M ass . 487 ; Gould ’s Ca se , 215 Ma ss .

480.

RE PORT OF ME MBE R OF INDUSTRIAL ACCIDE NT BOARD .

The°

memb er o f the Ind u stria l Accid en t Bo ard appo in tedu nd er the provisio n s o f Part III , sectio n s 5 and 7, chapter 751 ,Acts o f 191 1 , and amendmen ts thereto , having he ard the partie s in the a b ove-n amed case at the City Hall , Pittsfie ld , Mass . ,o n Tu esday, Oct . 22, 1918, at A .M . ,

repo rts as fo llows .

Appe arance s : Me ssrs . Sawyer, Hardy, Sto n e Mo rriso n (F.

A . Lave lle , E sq . , Of co u n se l) fo r in su rer ; A . J . Baker, E sq . ,

fo r employe e .

It w a s agreed tha t the employe e rece ived a n in ju ry o n May

24, 1918, while in the employ o f the W. E . Tillo tso n Man u

fa c tu ring Compa ny ; tha t as a re su lt o f su ch in ju ry the ind exfinger w a s lacerated and the first jo in t o f the seco nd finger o f

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the right hand w a s ampu tated ; that he retu rned to wo rkAu gu st 27 .

Disab ility compen satio n and specific compen satio n fo r the

lo ss o f the finger w a s Offered the employee by the in su rer, b u twas refu sed o n the gro u nd that he was en titled to do u b lecompen satio n .

Qu e stio n : Whe ther o r n o t the in ju ry was d u e to the serio u sand willfu l misco nd u ct o f the employer .

Report of the E videnc e .

All the materia l evid e nce is repo rted herewith.

Fred erick Scio la , the claiman t , te stified that he is e ighteenyea rs Old . He w a s emplo yed by the W . E . Tillo tso n Ma n u

fa c tu ring Company in May , 1918; he had wo rked there fo rover a yea r and a half . Mr. Ke lly was his b o ss . He neverwo rked in a mill o f this kind b efo re ; he had had n o experien ce .

He w a s wo rking o n the first b reaker o f a carding machine whenhe was in ju red . There w a s n o safe ty gu ard o n this machin e .

At the time he w a s in ju red he w a s cle a n ing the ma chin e , whichw a s su ppo sed to b e cleaned every d ay . As he wen t over o ne

part the chain w a s tight o ver the sha ft, a nd a s he d rew his ha ndo ver it his finger w a s c u t Off . The machine was in mo tio n .

He u sed n o thing o ther than his ha nd with which to cle a n the

ma chine . When he wa s first employed there he w a s to ld to

cle a n the machin e with his ha nd . His in stru ctio n s were to

clean the ma chin e while in mo tio n a nd to cle a n it with his ha nd .

Previo u s to his in ju ry he u sed a b ro om with which to cle a nthe machin e , a nd w a s to ld to pu t it d own . He w a s ea rn ing

a we ek a t the time Of his inju ry . Be sid e s wo rkingin the mill he wo rked fo r Mr . Papa s in a b o o tb lack parlo r,e arn ing $10 a we ek (admitted over Mr. Lave lle ’ s Ob jectio nb a sed o n the Gagn o n case), so at the time o f his in ju ry histo ta l wage s were Immed iate ly after b e ing in ju red hew a s taken to the ho spita l where the first finger o f the righthand w a s d re ssed and the first jo in t Of the seco nd finger Of

the same hand w a s ampu ta ted . He rema in ed at the ho spitalfrom P .M . Frid ay

'

even ing u n til ab o u t P .M . Su nday.

The d o cto r d ischa rged him when the ind ex finger n a il had no t

fa llen Off a nd it cau sed him pain if he to u ched anything . He

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Mr . McCarthy to ld him n o t to get hu rt, and when he wentover the ma chine with the b ro om o n the first a nd seco ndb reakers to lo ok o u t fo r his ha nd . Mr. McCarthy said to u se

the b ro om o n the first an d seco nd b reakers . He was to u se

the b ro om to clean the ma chine . He to ld him to c u t the hand leOff Of a lo ng b ro om . Afte r Mr. McCarthy go t thro u gh Pa tCarro ll w a s his b o ss . When Pa t Carro ll was his b o ss he u sedthe b ro om o n the fin ishers . Mr. Carro ll to ld him n o t to cleanthe fini shers with a b ro om ; he said

“to w ipe down with my

ha nd . I u sed the b ro om , b u t he never said anything . He

is n o t wo rking at the Tillo tso n Company at the pre sen t time .

He ha s wo rked o n ca rd ing ma chine s at the Po n to o su c mill .Some o f the card ing ma chin e s at the Po n to o su c mill are asclo se to ge ther as tho se at the Tillo tso n mill , and some Of themare n o t as clo se . The machin e s at the Po n to o su c mill havesafe ty gu ard s . At the Po n to o su c mill they u se b ro oms withwhich to cle a n the machin e s ; he ha s b een wo rking there fo rtw o mo nths, and he se e s everyb ody u sing a b ro om , so he u se so ne . The company cu ts d own the lo ng-ha nd led b ro oms makingsho rt b ro oms, which b ro oms are hu ng o n the wall near the

machin e . He ha s wo rked o n the se machine s fo u r yea rs . Allthe machin e s are d a ngero u s if yo u pu t yo u r hand n ea r them ;they a re d a ngero u s with safe ty gu ard s ; yo u have to b e care fu l .The ma chin e is n o t as dangero u s with the fend er gu ard o n a s

with it Off .Cro ss-examinatio n : He d id n o t se e the accid en t ; he did n o t

see how Scio la go t hu rt . On the sid e o f the machin e is a

spro cke t whe el a nd cha in which go e s aro u nd . Some time thatcha in might come Off, a nd if yo u pu t the chain b ack o n whilethe ma chin e is in mo tio n y o u are liab le to ge t yo u r handcau ght . He d id n o t see Scio la pu t the cha in o n . He n everhe ard Mr . Carro ll o r Mr . Ke lly say they wan ted to see thisb oy inju red . He n ever hea rd Mr. Carro ll o r Mr. Ke lly say to

anyb o dy tha t wo rked there , o r to the b oy himse lf, tha t theywan ted him to b e in ju red ; that they wan ted to see his fingercome Off .

Jo seph Amu so , ca lled by the employe e , te stified tha t he livesin Pittsfie ld , a nd w a s a t o ne time employed a t the Tillo tso nCompa ny . He wo rked there at the same time Scio la w a s em

333

ployed by the Tillo tso n Company ; Scio la wo rked down stairsand he , the witn e ss, wo rked u psta irs . He knows the machin eo n which this employee w a s in ju red ; it was No . 5 machin e .

He ha s wo rked o n that machin e . He wo rked fo r this c om

pany Six o r seven mo n ths . Mr. Ke lly was his b o ss . He wasto ld to clean the ma chine when in mo tio n . He to ok a b ro omto clean the machine with a nd Mr . Carro ll to ld him to pu t the

b ro om b ack and u se his hand . There were n o safe ty gu ardso n the machin e s u psta irs . In Ju ly, 1917, he , the witness, wasin ju red while clean ing a machine with his hand . Pat Carro llto ld him tw o o r three time s n o t to u se the b ro om .

Cross-examinatio n : He never heard Mr. Kelly o r Mr. Carro lltel l Fred erick o r anyb ody e lse that they wan ted Frederick tob e in ju red . He lo st his finger at ab o u t 9 O

’clock Satu rd aymo rn ing, Ju ly, 1917 . He started in early that mo rn ing to cleanthe machine so as to ge t throu gh wo rk in time . The b o ssnever to ld him n o t to clean the machine while in motio n ; theyclean ed the machin e s all the time whe n they were ru nn ing . He

is at pre sen t wo rking at the E ato n , Cran e Pike plan t .Jame s Scio la, called by the employee, te stified that he is abro ther o f the claiman t. He wo rked at the Tillo tso n Companyseven o r e ight mo n ths . He wo rked o n the card ing machine sd own stairs . Bill Mario n a nd Mr. Ke lly were his b o sses . Heis familia r with the kind o f card ing machin e o n which hisb ro ther was in ju red . Mario n a nd Ke lly are the same m en re

ferred to b efore a t this hearing . He cleaned the machin e swith his ha nd s ; that w a s the way Ke lly in stru cted him tocle an them . On ly the fin ishers o n the Tillotso n ma chine s havegu ard s ; the b reakers have n o gu ard s . He wo rked in wo olenmills fo r pra ctically three years . He wo rked in the Taco n icmill u nd er Mr . Mo rriso n . The b reakers o n the machin e s atthe Taco n ic mill were equ ipped with safe ty d evice s . The carding machin e s at the Taco n ic mill are practically the Same astho se at the Tillo tso n , except the machin e s at Tillo tso n

’ s havethre e b re akers a nd tho se at the Taco n ic mill have only tw o .

The b reakers o n both machines are the same . (Admitted o verMr. Lave lle ’s Ob jectio n .) The machinery o n the gears o f theb reakers Of b o th machin e s are ju st the same . The proce ss Ofclean ing the breakers w a s ju st the same at the Taco n ic mill as

34

it w a s at the Tillo tso n mill . The in stru ctio n s he rece ived atthe Taco n ic mill was to u se the sho rt-ha nd led bro om in cle a ning the ma chin e . There w a s a b ro om hanging at the sid e o f

the ma chine . At the Tillo tso n mill the in stru ctio n s were to

clean the machine s with yo u r ha nd . He n ever attempted to

u se a b ro om in clean ing the machine at the Tillo tso n millhe lived up to his in stru ctio n s . Mr. Mario n , who w a s seco ndhand a t that time , gave him the in stru ctio n s . The breakerswitho u t gu ard s o n them are d angero u s , a nd fu rthermo re it isd angero u s , a s the machin e s at the Tillo tso n mill are se t clo se rtoge ther tha n in o ther places . In clean ing the ma chin e s yo uhave to go from o n e sid e to the o ther, a nd the gears and b e lting are revo lving and n o t gu ard ed .

Cro ss-examinatio n : If he were ru nn ing the facto ry he wo u ld

pu t sa fety gu ard s o n every ge ar ru nn ing o n cha in and o n everyco n ju nctio n gea r . He ha s n ever b ee n in ju red . Yo u are like lyto get in ju red if yo u pu t a chain o n a Spro cke t whee l when inmo tio n . He d id n o t see this accid en t . He wo rked u nder Mr .

Ca rro ll . He n ever heard Mr . Ca rro ll o r Mr. Ke lly te ll a nyb o dy tha t they wa nted to se e Fred erick Scio la in ju red . Mr.

Carro ll o r Mr . Ke lly n ever to ld him , the witne ss , tha t theywan ted to se e Fred erick Scio la in ju red . The card ing ma chined own stairs, where his b ro ther wo rked first, is ru n by gears , a ndthe ca rd ing ma chine o n which he wo rked u psta irs w a s ru n

by ge ars a lso . Whe n he wo rked at the Ta co n ic mill he Clean edthe machin e while in mo tio n ; they were su ppo sed to cleanthem while in mo tio n , b u t had a b ro om to clean it with. He

w a s su ppo sed to clean the machine at the Tillo tso n mill whilein mo tio n . He w a s n ever to ld to clea n the machin e s whilethey were stopped . He n ever saw any b ro om at the Tillo tso nmill except the b ro om which the swe eper u sed in cleaning theflo o r.

Jo seph Argryropo u le s , called by the employe e , te stified thathe is a b o o tb la ck . He own s a pla ce kn own as the Papa s place .

He kn ows Fred erick Scio la . He was wo rking fo r him o n May

24. He was wo rking fo r him , the witness, at the time he lo sthis finger. Scio la wo rked fo r him tw o ho u rs every n ight a ndSatu rd ay u n til 1 1 P .M.

, and Su nd ay morning u n til 1 1 O’clock .

He pa id him $10 a week .

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the year he ha s b een su perin tend en t he ha s carried o u t all thein stru ctio n s given by the in specto r. He mad e o u t a supplem en

tary report to the Indu strial Accid en t Bo ard stating tha t thed o ctors repo rted that the employee co u ld retu rn to workAu gu st 1 . (Admitted o ver Mr. B aker’s o b jectio n .) Mr . Carro ll is fo rema n u nd er him . They never intend ed that any o n e

sho u ld b e in ju red . (Admitted o ver Mr. Baker’ s Ob je ctio n .)The m en u su ally to o k a piece o f waste and wiped the d irtfrom the sid e Of the machine while the machin e s were in

mo tio n . If the machin e s were stopped every time they werewiped o ff it wo u ld red u ce the produ ctio n ab o u t three-qu arters.If the d irt were a llowed to remain o n the machine it wo u ldin ju re the wo rk by dro pping in to the machine a nd cau singb u nche s . There is d anger in wiping Off the ro llers if a personis n o t care fu l ; if o ne is carefu l there i s n o d a nger whatever.

Cro ss-examinatio n : He ha s been su perin tend en t ab o u t a

year. He w a s no t su perin tend e n t at the time the Amu so b oyw a s inju red , b u t w a s o n his vacatio n at the time . He knewthe kind Of a ma chin e he was wo rking o n at the time o f his

in ju ry . He u nd ersto od it was while he was clean ing a fin isherwhile the machine was in mo tio n tha t he lo st his finger. No

gu a rd s have been pu t o n this machine o ther than what wereo n at the time o f the in ju ry . Since the Amu so b oy’ s in ju rya gu ard ha s b een pu t o n a fin isher o f the machine o n which a

b oy lo st the tip Of his finger ; that is the o n ly gu ard b e re

memb ers b eing in stalled since he ha s b een employed there .

Du ring his three years with the company he cann o t reca ll a nygu ard be ing pu t o n the se card ing machin e s . The machin eScio la was working o n at the time he w a s in ju red w a s the onlymachine Of that type in the plan t ; that ha s a spro cke t wheeland the o ther machine s have gears, that is ab o u t the on ly d ifferen ce . There is some d ifference in the arrangemen t o f the

rolls, b u t they perfo rm the same fu nctio n . He wo u ld n o t calla spro c ke t chain d riven machin e mo re dangero u s tha n a m a

chine d riven by gear. They are b o th mod ern , b u t mad e byd ifferen t pe ople . From the standpo in t Of safe ty he wo u ld saythe o n e with the gear w a s the safe st . He wo u ld n o t say themachine o n which the b oy was wo rking when in ju red was themost d angero u s type o f card ing machin e . Sixteen and seven

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tee n year Old b oys ru n the se machines . He do es not call themdangero u s machines . The Sprocke ts revo lve from thirty tofo rty time s a minu te ; the main cylinder o n a b reaker abo u tn inety to o n e hu ndred time s a minu te ; and the fa ncy o n thebreaker ab o u t e ight hu ndred time s a minu te. The gears, beltsand shafting are all moving at the same time , b u t in differen tdirectio n s . If yo u are n o t care less it is no t dangero u s . A b oyfifteen years Old co u ld o perate the machine with the same degree Of safe ty as a m an fo rty o r fifty years Old . A b oy working there a year co u ld operate the machine with the same degree Of safety as a m an who had wo rked there ten years .There is n o safety gu ard o n the machine o n which Scio la wasin ju red . He is n o t familiar with the machin ery at the Po nto o su c and Taco n ic mills ; d o e s n o t kn ow whether their machinery is gu arded or n o t . He d oes n o t know the exact datewhen he last saw In specto r Bradb u ry, b u t it was ab o u t a yearago . He can n o t remember when he saw him b efo re that. Asfar as he kn ows, he saw Mr. Bradb u ry o n o ne o f his in spectio n s .The machine s are n o t sto pped when being cleaned , except o nSatu rdays . He do e s n o t kn ow as they ever to ld the employeesn o t to stop them . He knew they were clean ing the machineswhile in mo tio n ; it was do n e with his knowled ge . E very new

employee w a s always in stru cted to be carefu l a nd n o t getcau ght . In wiping o ff a machin e , if a person is n o t lookingand no t watching what he is do ing he is liable to get cau ght.He, the witn e ss, always wiped the machines with his handswhen he was a b oy ; he cann o t say that it is d angero u s ; henever go t cau ght. He ha s b e en in the bu sin e ss since he wasthirteen years Old . He shou ld say that it wou ld b e ju st asdangerou s fo r a m an clean ing a machine with a b ro om asclean ing it with his hand . He n ever con sidered the machined angero u s, o r he wou ld have pro vid ed some so rt o f a gu ard fo rit . He n ever saw a gu ard o n that type o f ma chine .

Re-direct : He is fo rty-tw o years Old , a nd his experience datesback to when he was thirteen years o ld . This employee startedwo rking fo r the Tillo tson mill o n D e c . 15, 1916.

The repo rt o f the acciden t (copy o f which is append ed hereto)was in trod u ced in evidence by the in su rer.

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B oa rd Member’

s Find ings a nd Ru lings .

I find , u po n all the evidence , that the employe e , Fred e rickScio la, rece ived a personal in ju ry o n May 24, 1918, which aroseo u t of and in the co u rse o f his employmen t ; that his averageweekly wage s were I fu rther find that this employe ewas to ta lly incapacitated fo r wo rk by reaso n Of this in ju ryfrom May 24, 1918, to Au g. 27, 1918, at which time all incapacity ceased ; that he is therefo re en titled to disab ility c om

pen sa tio n from Ju n e 3, 1918, the e leven th d ay after d ate o f

inju ry, to Au g . 27, 1918, a period Of twelve we eks , at the rateo f a we ek (tw o-third s o f his average wage), in amo u n t

a nd twe lve weeks ’ specific compen satio n fo r the lo ss o fthe first phalange o f the ind ex finger Of the right hand at therate o f a week, in amo u n t making the to talamo u n t o f compen sa tio n d u e t he employe e u nd er this find ing,

The evid ence pre sen ted a t this he a ring d o e s n o t warran t afind ing that the in ju ry rece ived by the employee was d u e toserio u s a nd willfu l misco nd u ct o n the part Of the su b scrib ers , o rOf any perso n exercising su perin tend en ce . See Bu rn s ’ Case ,218 Ma ss . 8; Riley

’ s Case , 227 Mass . 55.

This decisio n and a ll find ings regard ing compen satio n , o r the

existence o r terminatio n Of incapacity, are made su b ject toreview and change by the Ind u strial Accid en t Bo ard , if thefa cts warran t su ch actio n , in acco rdance with sectio n 12, PartIII , Of the Wo rkmen ’ s Compen sa tio n Act, a nd the generalprovisio n s Of said act and its amendmen ts .

CHE STE R E . GLE ASON .

Filed Thu rsday , Oc t . 31 , 1918, at 9 A .M .

REPORT OF A PERSONAL INJURY TO AN EMPLOYEE .

Report No . 1 .

Employer’s nam e : W. E . Tillo tso n Mfg. CO .

Average num ber Of employees : Ma le,230 ; fem a le

,320.

Offic e address : Street and NO . : 1 17 Fou rth Street.

City o r town : Pittsfield , Ma ss .

Bu sin ess (sta te exa c t n a tu re): Manu fa c tu rers , fan cy wo rsted su nd erwear.

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340

FINDINGS AND DE CISION OF THE INDUSTRIAL ACCIDE NT BOARDON RE VIEW.

The employee having filed a claim fo r review, the Ind u strialAccid en t Bo ard heard the parties at Bo sto n , Mass . , o n Thu rsday,NOV . 14, 1918.

Pre sen t : Me ssrs . Kennard (chairman), Parks, Dickin son ,Gleason a nd Co gswe ll .Appearances : Messrs . Sawyer, Hardy, Ston e Mo rriso n

(Frank A . Lavelle , E sq . , Of co u n se l) fo r in su rer ; J . Arthu rBaker, E sq . , fo r employee.Qu e stion : Whether the in ju ry on May 24, 1918, was occa

sio n ed by seriou s and wil lfu l misco ndu ct u nder Part II , sectio n3, Of the act.This d ecisio n and the attached reco rd con tain s all the evi

d en ce in this case .

Cla iman t ’ s requ e sts fo r ru lings NOS. 1 a nd 2 a re given . NOS.

3, 4 and 5 a re refu sed . AS to NO . 6, the employe e’s average

weekly wage s areThe Ind u stria l Accid en t Bo ard affirm a nd ad o pt the find ings

and d ecisio n o f the Bo ard member u nd er which there is d u ethe employee incapacity and specific compen sa tio n amo u n tingto

The evidence d o e s n o t warran t a find ing that the in ju ry re

c e ived by the employee was d u e to serio u s a nd willfu l misco nd u ct On the part Of the su b scrib ers o r Of a ny perso n exercisingsu perin tend ence , u nd er Part II , sectio n 3 of the act . Bu rn s

’

Case , 218 Mass . 8; Riley’s Case , 227 Ma ss . 56.

WM. W . KE NNARD .

JOSE PH A . PARKS.

JOHN H . COGSWE LL.

C . E . GLE ASON .

Filed Satu rd ay, Nov. 23, 1918, at 9 A .M.

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DE CRE E OF THE SUPRE ME JUD ICIAL COURT .

JE NNE Y, J . Fred erick Scio la, while in the employ Of the

W. E . Tillo tso n Ma n u fa ctu ring Company, o n May 24, 1918,

rece ived an in ju ry in the co u rse Of his employmen t . It isagreed tha t he was en titled to compen satio n u nd er the pro

visio n s Of the Wo rkmen ’ s Compe n satio n Act . On Oct . 31 ,1918, a memb er Of the Ind u strial Accid en t Board , after d u ehearing , so fo u nd . There was n o find ing that the in ju ry wasca u sed by the serio u s and willfu l misco nd u ct Of the employer.A cla im fo r review having b een filed o n Nov. 23, 1918, the

Ind u stria l Accid ent Bo ard affirmed and adopted the d ecisio n o f

the single memb er . The o n ly issu ab le qu e stio n , as clearly ap

pears from tha t d ecisio n , w a s whe ther the inju ry had b eencau sed by serio u s and willfu l misco ndu ct. On Nov. 30, 1918,

the employe e filed in the Su perio r Co u rt u n c ertified COpie s o f

the d ecisio n Of the Bo ard and all papers in co nnection therewith, and o n Sept. 3, 1919 , a d ecree was en tered in that co u rtreciting that the in ju ry was d u e to the serio u s and willfu l misco nd u ct Of the employer, and o rdering the paymen t o f do u b led amage s . It d id n o t appear whether the filing Of u n c ertified

copies was in ten tio nal o r d u e to in adverte n ce o r mistake . On

Sept. 16 , 1919, the employer and the in su rer appealed fromsaid d ecree , a nd on Sept . 19, 1919 , they moved that it b evacated fo r the fo llowing rea so n s : (1) the evid en ce pre sen tedd id no t warran t a d ecre e that the inju ry rece ived was d u e toseriou s a nd w illfu l misco nd u ct fo r which the employer w a s

respo n sib le ; (2) n e ither the in su rer n o r the employer had su f

fic ient n o tice Of the he aring o n the mo tio n fo r the issu an ce o f

said d ecre e a nd n o o ppo rtu n ity to b e pre sen t a t the he a ringthere o n ; and (3) n o certified copy Of the d ecisio n o f the In

d u stria l Accid en t Bo ard was filed in the Su perio r Cou rt as requ ired by law .

On Oct . 2, 1919 , a d ecree w a s en tered vacating the d ecreeOf Septemb er 3 fo r the reaso n stated , tha t

“n o certified copy

o f the decisio n o f the single memb er o f the Ind u strial Accid en tBo ard o r no certified copy o f the d ecision o f the Ind u strialAccid en t Bo ard was presen ted to the cou rt as requ ired by law .

”

No appeal was taken from this decree , and all partie s have

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since proceeded o n the basis that the decree ordering the paym en t o f compen sation w a s no longer in force .

On Nov. 30, 1918, du ly certified copies of the proceedingsbefore the Indu strial Acciden t Bo ard and its decision were entered in the Su perior Co u rt, b u t were no t so en tered u nderany order of the cou rt permitting them to b e filed n u n c pro

tu ne o r in amendmen t o f the papers previo u sly pre sen ted , assum ing that su ch order co u ld pro perly have b een made . SeePerkin s v. Perkin s, 225 Mass . 392.

The Wo rkmen ’ s Compen satio n Act (St. 191 1 , c . 751 , PartIII , 1 1 , as amended by St. 1912, c . 751 , 14, and by St .1917, c . 297, 7) provides that

“Any party in intere st may

presen t certified co pies o f a n o rder or decisio n ”Of the Indu s

trial Accid en t Bo ard and“ all papers in conn ectio n therewith,

to the Su perio r Cou rt,” whereu pon “ said co u rt shall render a

decree in acco rdance therewith.

” NO appeal is permitted u po n

qu estio n s o f fact o r from a d ecree “b ased u po n a n order o r

decisio n o f the b oard which has no t b een pre sen ted to thecou rt within ten d ays after the notice of the filing thereo f bythe boar The filing in co u rt o f the requ ired papers as apart of its reco rd s is a compliance with the statu te . McPhe e

’

s

Case , 222 Mass . 1 . It is clear that the filing Of the certifiedco py Of the decision within ten d ays is n o t a cond itio n to the

acqu iremen t of ju risdictio n , b u t that the limita tio n o f time t e

late s o n ly to cases where the partie s may desire to appeal genera lly from the d ecree Of the Su perior Co u rt . In many instan ce s the requ ired papers a re never filed in the Su perio rCo u rt, a nd co n sequ en tly n o d ecree en tered in that trib u na l ,b ecau se the d ecisio n Of the Indu strial Acciden t Bo ard isgenerally complied with witho u t a ny decre e Of an appe llatetrib u nal . However, su ch a necessity may arise even after a

co n sid erable time has e lapsed , and there is n o limitatio n as tothe time o f pre sen tatio n , b u t mere ly the Sxpre ss pro visio n thatthere shall b e n o appeal if the requ ired pape rs are n o t pre

sen ted within ten d ays . In su ch case it is the d u ty Of the

Su perio r Co u rt to en fo rce the award Of the Bo ard u n le ss thereis legal reason to the co n trary. Yo u ng 0. Du ncan , 218 Mass .346 ; Hu nn ewe ll

’ s Case, 220 Mass . 351 , 353 ; Brown’ s Case,

228 Mass . 31 ; Dempsey’ s Case , 230 Mass . 583, 587. Altho u gh

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344

tio n s a nd Machin ery Stand ards e stablished by the State Bo ardo f Lab o r and Ind u stries , hereinafter referred to as the ru le s,might be received in eviden ce a nd co nsidered u po n the issu eo f whether the in ju ry su stained by the employee was d u e to

serio u s a nd willfu l misco ndu ct o n the part o f the su b scrib er.

The employer’s appeal from this d ecree is n ow presen ted fo rdecisio n . The qu e stio n s to b e d ecided are : (1) whether the

trial ju dge had the right to make this o rd er ; and (2) whe therthe appeal is pro perly b e fo re this co u rt.When the proper papers have b een e n tered , altho u gh mo rethan ten d ays from the filing o f the d ecisio n o f the Ind u strialAc cid en t Bo ard had e lapsed , the case w a s properly b e fo re theSu perio r Co u rt fo r su ch actio n as the statu te permitted . Noau tho rity, however, existed to review o r to d istu rb the find ingso f fact mad e by the Bo ard if they were fo u nd ed o n warran tab leevid ence . Pigeo n ’ s Case, 216 Mass . 51 ; Go rski ’ s Case, 227Mass . 456 Fitzgib b o n ’ s Case , 230 Ma ss . 473 ; Mo ran ’ s Case,230 Mass . 500; Mallo ry

’ s Ca se, 231 Mass . 225 ; McCarthy’

s

Case , 231 Mass . 259 . E rro r in the admissio n o r exclu sio n o f

evid ence is n o t gro u nd fo r reversal u n le ss nece ssary to pro tectsu b stan tial rights . Beckle s ’ Case , 230 Mass . 272. A like re

su lt mu st fo llow where there ha s b een failu re to Offer evid en ce .

Se e Fi erro ’ s Case , 223 Mass . 378, 382 ; Go rski’ s Case , su pra .

By St . 1913, c . 813, as amend ed by St . 1916 , c . 308, the

State Bo ard o f Lab o r and Indu strie s w a s in stru c ted to inve stigate employments and place s o f employmen t , to d e termin ewhat su itab le safe ty d evice s and o ther reaso nab le mean s and

requ iremen ts fo r the preven tio n o f accid en ts sho u ld b e ad opted ,and to make “

reaso nab le ru le s , regu la tio n s a nd o rd ers fo r thepreven tio n o f acciden ts .” The statu te fu rther pro vid e s that avio latio n Of any reaso nab le ru le , regu latio n , o rder o r requ iremen t ” so mad e shall b e pu n ished by a fin e o f n o t mo re than

$100 fo r e a ch Offence . N0 qu e stio n c a n b e made as to the righto f the Legislatu re to d e legate its powers b y au tho rizing the

making o f su ch ru le s . Commo nwealth v. Slocum , 230 Mass .180, 190, a nd ca se s there co llected .

The Indu strial Accid en t Bo ard co u ld take ju d icial n o tice o f

the se ru le s . Ca rro ll ’s Case , 225 Mass . 203 ; Wa lsh’ s Case , 227Mass . 341 ; Caha v. Un ited State s , 150 U . S . 21 1 , 221 ; Co smo s

345

Co . 12. Gray E agle Company, 190 U . S . 301 ; Low 0. Han so n ,

72 Me . 104 ; Sta te 0 . Railro ad , 141 N . C . 846 ; Smith v. Shako

pee , 44 C . C . A . 1 ; Bru ce 0. Un ited State s , 120 C . C . A . 370.

It appears that the ir effect w a s actu ally co n sidered by the

Bo ard , fo r, at the requ est o f the employee , it ru led that theemployer w as su b ject to the pro visio n s o f the statu te u nd er

which they were made and to the ru le s themse lve s , a nd refu sedto ru le as requ e sted , that, as matter o f law, the failu re to install safety d evices as de scrib ed in divisio n “ J ” thereo f c o nstitu ted serio u s a nd willfu l misco nd u ct as

‘

defined by the

sta tu te , if su ch omissio n re su lted in in ju ry . Whe ther a n inju rywas cau sed by serio u s and willfu l misco nd u ct frequ en tly is aqu e stio n o f fact . The Bo ard , having already co n sidered theseru le s, o u ght n o t to have b een o rdered to re c o n sid er its d ecisio nSO far as it w a s o ne Of fact . If the actio n o f the Bo ard b eregarded as a ru ling o f law , it w a s co rrect . Upo n the eviden cethe employe e w a s n o t en titled to d o u b le damage s within theru le laid d own in Bu rn s ’ Case , 218 Mass . 8 ; Riley

’ s Case, 227Mass . 55 ; a nd Beckle s ’ Case , supra ; a nd the ru lings o f the

Bo ard were co rrect .It ha s b e en he ld that where ju stice requ ire s it , a b ro ad power

exists to recommit to the Ind u strial Accid en t Bo ard . Rec om

mittal ha s b e e n o rdered for the pu rpo se o f co rrectio n a nd amplific atio n o f the reco rd where it w a s in complete , Doherty

’ s Case,222 Mass . 98, Brown

’ s Case, su pra ; fo r the in trodu ctio n o f

fu rther evid e nce when it d id n o t appear that any evid en ce hadb een Offered o n a material qu e stio n , a nd where n o find ing hadb een mad e with re feren ce to that qu e stio n , Fierro

’s Case, su pra ,Carro ll ’ s Case , supra ; and where it appeared that the casehad n o t b e en fu lly heard o n a n impo rtan t issu e , Com erfo rd

’

s

Case , 224 Mass . 571 .

While o rd inarily the recommitta l Of a case to the Ind u strialAccid en t Bo ard fo r fu rther hearing is within the d iscretio n o f

the sitting ju dge , where it appears that the actio n w a s takenso le ly fo r the pu rpo se o f d irecting a reco n sid eratio n o f co rrectru lings Of law o r o f find ings o f fa ct b a sed o n d u e co n sideratio no f all qu e stio n s o f law o r evid en ce , the actio n o f the ju dge mayb e reviewed .

It is claimed , however, that the decree o f recommittal sho u ld

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n o t n ow be co n sidered , becau se it relates so lely to an in terlo cu tory matter which sho u ld no t b e decided b efo re the en tryof a final decree . Keohane

’

s Case , 232 Mass . 487 ; Go u ld’ s

Case, 215 Mass . 480, 483. B u t as was said in Keohane ’s Case ,the final decree co n templated is o ne from which an appeal willlie . The practice fo llows that in eq u ity, and u n less otherwiseprovided , a n appeal lies from b o th interlocu to ry and final d ecrees . Go u ld ’s Case, su pra ; Keohane

’

s Case , su pra ; R. L .

c . 159, 19, 25 ; St . 1911 , c . 284, 1 . Where the statu te provides that there c a n b e n o appeal from a final decree, we are

o f o pin ion that to preven t erro r there may b e an appeal froma n in terlocu to ry decree , at least where the appeal brings u p

qu estion s o f law n o t involving the final dispo sitio n of the case .

The ru le that a n appeal from a n in terlocu to ry decree will n o tb e con sidered b efo re the en try o f a final d ecree does n o t prec lu de the co n sid era tion of su ch an appeal where no appeal liesfrom a final decree . The decree of recommittal mu st b e re

versed .

So ordered .

Filed Oc t . 29, 1920.

CASE NO . 8816 (237 Mass .

ANTONIO FRIZ Z I , E mployee .

BE THLE HEM SHIPBUILD ING CORPORATION, Employer.

UNITE D STATE S MUTUAL LIABILITY INSURANCE COMPANY,Ins u rer.

D ISCONTINUANCE OF COMPE NSATION .

Whe re compens a tio n paym en ts we re dis co n tinued by the In dustria l Acciden tBo ard u nder G . L. , c . 152, 5 29 , su ch a ction is n o t an adjudica tio n tha t a llin capa city fo r wo rk as a resu l t o f the in jury has cea sed. the efiec t o f sucha ctio n n o t be ing a de cisio n o n the m erits o f the ca se , but is to b e co nstrueda s le aving Open fo r future de term in a tio n the questio n whe the r , a fte r hea rin g,the paym en ts were rightly disco n tin ued , a n d al so whe ther in capa city existedan d the exten t o f such in capa city.

RE VIEW BY BOARD .

D isco n tinuan ce o f com pensa tion paym en ts by the Bo ard is n o t the equiva len to f a decisio n tha t there w as n o in capa city , an d it is Open to the Bo ard , o nreview , fo llowin g ea: pa rts a ctio n un der G . L. , c . 152 , 5 29 , approvin g d iscon tin uan ce o f com pen sa tio n , an d a de cisio n by a single m em ber after d u ehe arin g confirm ing disco n tinuan ce o f com pen sa tio n , to award to ta l in capa citycompensa tio n to a da te subsequen t to tha t upon which discon tinuan ce w a s

a llowed , an d to fin d tha t al l in capa city term in a ted upo n sa id da te . the casein thi s respe ct be in g govern ed by Hu nn ewe ll ’s Case , 220 Mass . 351 . See

Lem ieux’

s Ca se , 223 Ma ss . 346 .

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D r. John A . Hickey, called by the in su rer, testified that heis medical examiner fo r the United Sta tes Mu tu al Liab ilityIn su ran ce Company . He saw the employee in this case,An to n io Frizzi , o n Sept . 4, 1 1 , 25 and Octo b er 2, a nd o n

each o f the se d ate s an examinatio n was made by him . As aresu lt o f his examinatio n o n Octo b er 2 he fo u nd that theemployee was ab le to go to wo rk, a nd requ e sted the employeeto retu rn to wo rk the 6th o f Oc tob er, fo u r d ays later. E m

ployee was, at that time, ab le to d o o rdinary wo rk, in his

o pin io n . E mploye e had had tro u b le w ith his rib , repre sen ted“ a split n ow fu lly repaired , which represen ts a part o f aT-shaped fra ctu re o f the seven th rib .

”Fo u r to six weeks

wo u ld b e a su fficien t period , in the u su al case, with su ch afractu re as this, to allow a m a n to recove r su fficien tly to

permit his re tu rn to wo rk . He fo u nd that o n Octo b er 2 thefractu re had b e en repaired so that the m an was ab le to d o

wo rk . The previo u s even ing (Octo b er 1) he saw the employeein E ast Bo sto n , walking alo ng Paris Stree t, with an o ther m an ,

in fro n t o f the statio n ho u se . Employe e , at that time , had aco il o f ro pe o n his sho u ld er, and they lo o ked as if they hadb e en pain ting somewhere . The co il Of ro pe w a s a prettygo od-sized co il . He w a s carry ing it over his sho u ld er. The

rope mu st have b een a commo n pain ter’s ro pe , ab o u t a n in cha nd a qu arter in d iame ter . The co il reached d own to ab o u this hip, co iled aro u nd fifteen o r twen ty time s, a nd was ab o u te ight o r n ine in che s thick . He carried the co il o n his rightSide . It w a s the employe e ’ s le ft sid e which was in ju red .

Employe e walked as if there were n o thing the matter withhim ,

— wa lked the o rd in ary gait o f the o ther m a n . It wasab o u t qu arter o f 6 at n ight when he o b served the employe e .

Cro ss-examin ed (by co u n se l fo r employe e), witne ss te stifiedthat he practice s in E ast Bo sto n . He had examin ed the

employe e with re feren ce to his ca se prio r to the time heOb served him o n the stre e t in E ast Bo sto n . He saw the

employe e in fro n t o f the statio n ho u se in E ast Bo sto n ,— he

happe ned to b e waiting there in his au tomo b ile and the em

ploye e passed by with an o ther m a n . He wo u ld say that theco il we ighed a b o u t fifte en o r twe n ty po u nd s . He ca rried the

co il o n his right sho u ld er, and d id n o t se em to b e b earing

349

down u nder it . He seemed to b e carrying it alo ng as if n o thingwas the matter . This o ccu rred o n the l st o f Octob er. He

made fo u r examinatio n s Of the employee .

E mployee , recalled by his co u n sel , te stified that he d id n o t

d o any wo rk o f any natu re which requ ired him carry ing any

rope o n his sho u lder. He did n o t carry a co il o f rope and

pass the po lice sta tio n in E a st’

Bo sto n o n Octo b er 1 . He d id

n o t pass the po lice statio n b e tween 5 and 6 that d ay he wasin the ho u se at that time .

Qu e stio ned by the Commissio n er employee te stified that helive s at 1 18 Che lse a Street, E ast Bo sto n . He stated that hestays in the ho u se , b u t some time s he will take a little walkand go acro ss the E ast Bo sto n Ferry . He ju st stays aro u ndthe ho u se and go e s to Bo sto n and b ack .

D r. Hickey, recalled by the Commissio ner, stated that he

treated this employee and is su re he is the m a n he saw passhim in fro n t ' Of the po lice sta tio n in E ast Bo sto n carrying aco il o f rope .

Emplo yee , recalled by the Commissio ner, te stified that hedo e s n o t go to wo rk, b ecau se he su ffers pa in . He ha s a wife ,b u t n o children . His wife is n o t wo rking at the presen t time ;is n o t ab le to wo rk . When she d id wo rk, she wo rked in a Wo o lFacto ry in E ast Bo sto n ; here She wo rked fo r tw o o r thre emo n ths after they were married . He can n o t wo rk . He ha s

tried to d o wo rk in the ho u se , b u t cann o t d o it .D r. H . H . Howard examined the employe e , as the impartial

physicia n appo in ted by the Bo ard , o n Nov. 22, 1919, a nd

repo rted in part as fo llows

Date o f a c c iden t : Au g . 20,1919 .

Date o f exam in ation : Nov. 22,1919 .

Patient ’s a c c ou n t o f the a c c iden t : Cla im s that while w o rking on a

b o at,rimm ing the c eiling, he fell into the b o ttom o f the bo at

,a distan c e

o f ab ou t five feet . Was taken to the Squ antum Ho spita l where a plasterw as applied to his b a ck

,and his arm w a s strapped . Rem a in ed at the

ho spita l a few ho u rs and then w en t hom e . He states that the d o c tor

sa id he had tw o b roken rib s on the left sid e .

Cla im s he ha s n o t w o rked sin c e the d a te o f the a c c iden t b e c au se Of

pain,and a lso sta te s that he is still u n ab le to w ork .

Past histo ry : No previo u s a c c id en ts o r illnesses .

Physic a l exam in atio n : IS that o f a m an tw enty-six years Old and

m arried,who se physic a l exam in ation was c onfined to the lo c a l c ond ition .

350

Over the ninth and tenth rib s , on the an terio r axillary line, there is

fe lt a distin c t d eformity in the ou tline o f the rib s , with a displac em entinwards Of the po sterio r fragm ents . There is

,however

,no eviden c e Of

any abnorm a l m ob ility o r c repitu s .

Patient w as referred to D r. George fo r X-ray .

Opin ion : Having seen the X-ray plates at D r. Geo rge’s omc epl am

still in d o u bt as to whether o r n o t the exa c t a rea designated w as taken ,

and I shou ld like to have the m an c om e b ack to my Offic e so that I c antake him persona lly to D r. George

’s Offic e fo r an o ther X-ray .

X-ray repo rt mad e by D r. Ge o rge o n Nov. 24, 1919,

state s

Plates w ere m ad e o f the chest, and we a re u nab le to find any eviden ce

o f fra c tu re o f the rib s at the presen t tim e . A separation Of the c osta l

c artilage from the end Of the rib o r in ju ry to the c artilage itself m ightb e overlo oked on the X-ray plate .

The su pplemental repo rt filed by D r. H . H . Howard o n

D e c . 13, 1919, state s , in part, as fo llows

Fo llow ing a se c ond X-ray , whi ch d o es d em onstra te a fra c tu re,I Shou ld

say that the m an’s c ompla int is en tire ly ju stified

,b u t as there is no

eviden c e Of any n on -u n ion at the presen t tim e,and n o evid en c e o f any

in ju ry to the pleu ra , so far as c an b e determ in ed by X -ray and physic a lsigns , I b e lieve that he is n o t in c apa c itated a t the pre sent tim e .

Owing to the fact that D r . Co tto n w a s u nab le to atte nd thehearing, it w a s agre ed b e tween the partie s that a repo rt Of hisexamin a tio n o f the employee b e pu t in evid en ce as b e ingsu b stan tially what the d o cto r wo u ld te stify to were he pre sen t .The repo rt Of D r . Co tto n is as fo llows

Re : A . FRIZ ZI,SH 97.

BOSTON, MASS . , Oc t. 8, 19 19 .

Un ited Sta tes Mu tu a l Liabi lity In su ranc e CO., Qu inc y , Mass .

GENTLE MEN : This you ng m an is o f m o re than o rd inary go o d physiqu e

,who Show s o n physic a l exam in a tion on the eighth rib a thi cken ing

Sharply lo c a lized a t the ju n c tion o f the rib and c artilage . This bu n ch

represen ts the repa ir pro c ess ab o u t this po in t o f separa tion ,and

,save fo r

a little tend erness to pressu re , there seem s to b e n o thing left o f the o rigina ldam age .

“ Ju st ab ove this,o n the seven th rib

,ab o u t two in ches from the

end o f the rib,is a lump

,Slight, n o t sharply lo c a lized , slightly tender.

X-ray d o es n o t Sho w anything to c o rrespond with the lesion on the eighth

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352

Presen t : Me ssrs . Ke n nard (chairman), D ickin so n ,Parks,

Gleaso n and Do nahu e .

Appearance s : Du d ley M . Ho lman , E sq . , fo r in su rer ; Jo sephKarfe ld , E sq . , fo r employe e .

Qu e stio n : Incapa city .

The repo rt o f the Bo ard memb er co n tain s all the materialevid ence .

The Ind u stria l Accid en t Bo ard find and ru le , u po n all theeviden ce , that this employee was to tally in capacitated fo r

wo rk fo r a perio d Of seven we eks su b sequ en t to Oct . 15, 1919,the date u po n which disco n tinu an ce o f compen satio n w a s ap

proved u nd er Part II,'

se c tio n 4, Of the act ; that compen sa tio nis d u e the emplo yee in the su m Of $98; and that all in ca pacityfo r wo rk terminated o n D e c . 3, 1919.

WM . W. KE NNARD .

DAVID T . DICKINSON.

JOSE PH A . PARKS .

CHE STER E . GLEASON .

Filed Wed ne sd ay, April 21 , 1920, a t 9 A .M.

I be lieve that all in capacity fo r wo rk had ceased o n Octo ber8, the date o f D r . Co tto n ’s examinatio n .

FRANK J. DONAHUE .

DE CRE E OF SUPREME JUDICIAL COURT .

CROSBY, J. It is agre ed that the emplo ye e rece ived a n

in ju ry arising o u t o f and in the co u rse o f his employmen t o n

Au g. 20, 19 19 ; tha t his average we ekly wage s were $21 ; and

tha t he w a s paid compen satio n u p to Oct . 15, 1919, o n whichdate the paymen ts were d isco n tin u ed with the a ppro va l o f theInd u strial Accid en t Bo ard . St . 191 1 , c . 751 , Part II, 4

, asamend ed by G . A . 1916, c . 90, 1 .

A member o f the Bo ard , appo in ted u nd er the provisio n s o fPa rt III, sectio n 12

, as amended, o n Ja n . 20, 1920, heard the

partie s o n the qu e stio n o f in capacity and made the fo llowin gfin d ings a nd ru lings : “ that this employe e ha s n o t su s

353

ta in ed the b u rden o f pro vin g that he ha s b e en to tally incapacitated , be cau se o f co nd itio n s d u e to his in ju ry, b eyo ndthe date u po n which the Bo ard appro ved the d isco n tin u an ce o f

compen satio n paymen ts , — Oct . 15, 1919 ; that this em

plo yee ha s a n earn ing capacity which he ha s n o t e stab lished .

The d isco n tin u an ce Of Oct . 15, 1919, is here by fu rthe r c o n

firmed , the employee ’s rights b e ing re served u nder Pa rt III,

se ctio n 12,o f the act .”

The Ind u strial Accid en t Bo ard , o n review, fo u nd a nd ru ledtha t this employee w a s to ta lly in capacitated fo r wo rk fo r a

perio d o f seven we eks su b sequ en t to Oct . 15, 19 19 , the dateu po n which d isco n tin u an ce o f compen satio n w a s a pprovedu nd er Part II , se ctio n 4, o f the act ; that compen sa tio n is d u ethe employe e in the su m o f $98; a nd that a ll in capacity fo rwo rk termin a ted o n Dec . 3, 1919 .

It is the co n ten tio n o f the in su rer that the Bo ard w a s witho u tau tho rity to a c t u nd er Pa rt III , se ctio n 12. Altho u gh the

paymen ts fo r to ta l in capa city were d isco n tin u ed with the

appro va l Of the Bo a rd , there w a s n o ad ju d ica tio n that a ll

in capa city had cea sed . The e ffe ct o f the o rd er w a s n o t ad e cisio n o n the merits . The su spen sio n Of payme n ts by the

in su re r, with the ex pa rte appro va l Of the Bo a rd , is to b e c o n

stru ed as leavin g o pen fo r fu tu re determinatio n the qu e stio nwhe ther, afte r hearing, the paymen ts were rightly d isco n tin u ed ;a nd also the qu e stio n whe the r pa rtia l in capacity existed , a nd

if SO , its exten t . That d e te rminatio n is what the Bo a rd u nd er

to o k to make by the d e cisio n n ow b e fo re u s . Disco n tin u a n ceo f payments with the appro val Of the Bo ard o n the basis o f

to tal in capacity w a s n o t the equ ivalen t o f a d e cisio n thatthere w a s n o in capa city. The Bo a rd ha s n o w ma d e the

d e cisio n that all d isab ility terminated o n D e c . 3, 19 19 , whichis final ; plain ly it had au tho rity to make it . In this re spe ctthe case is gove rned by Hu nn ewe ll

’s Case , 220 Mass . 351 .

Se e Lemie u x ’s Case , 223 Mass . 346 .

The find ing o f the Bo ard , that the employe e w a s to ta llyin capacita ted fo r wo rk fo r a perio d Of seve n we eks fromOct . 15, 1919, can n o t b e said to have been u nwarran ted .

D ec ree afirmed .

Filed March 1 , 1921 .

354

CASE NO . 8798. (238 Mass .

PE TE R JAKUTIS, Employee .

SOME RVILLE AUTO WHE E L AND BODY COMPANY,E mployer.

TRAVE LE RS INSURANCE COMPANY, Insu rer.

SPE C IFIE D INJURIE S .

An employee w ho has sufiered the traum a tic amputa tio n o f his thum b an d partso f a ll the o ther fin ge rs o f his right hand is lim ited to additio na l com pe nsa tio nfo r a pe riod o f twen ty -five weeks except where the hand is rendered per

m an en tly in c apable o f u se , in which even t addition a l com pe n sa tio n fo r a

pe riod o f fifty weeks wo uld b e d u e . Flo c cher’

s Case . 221 Mass . 54 ; La c io n e'

s

Case , 227 Mass . 269 .

AD D ITIONAL COMPE NSATION .

Tha t provisio n o f the ac t cre a ting the right o f an employee to additio na l c ompensa tio n fo r ce rta in Spe c ified in juries lim its such additio n a l com pe n sa tio nto twen ty-five weeks fo r the traum a tic amputa tio n o f the thum b an d partso f a ll the o ther fin gers o f the in jured hand. exc ept where the hand is renderedperm an en tly in capable o f u se .

SE RIOUS AND WILLFUL MISCOND UCT .

A finding o f the Bo ard tha t an employee ’

s in jury w as n o t o c ca sio n ed by se riousan d willfu l m isco nduct fo r which his emplo ye rs were respo n sible is fina l ifthere is any eviden ce to su ppo rt it .

RE D EMPTION OF LIABILITY .

When an employee is o f age , his weekly paym en ts can n o t b e redeem ed by the

paym en t o f a lum p su m , except a fte r they have be en co n tinued fo r n o t le ssthan six m on ths , a n d except by agre em en t o f the parties an d the de term inatio n o f the Bo ard tha t it is fo r the best in terests o f the employee . McCarthy

’

s

Case , 226 Mas s . 444 .

RE PORT OF MEMBE R OF INDUSTRIAL ACCIDE NT BOARD .

The member Of the Indu strial Acciden t Bo ard appo in tedu nder the pro visio n s o f Part III, sectio n s 5, 7 a nd 12, chapter751 , Acts o f 191 1 , a nd amendments there to , having heard the

parties in the abo ve-named ca se at the ro oms o f the Bo ard ,Bo sto n ,

Mass . , o n Friday, Oct . 15, 1920, at A .M. ,repo rts

as fo llows :Appearan ces : Lo u is C . Doyle, E sq . , fo r the in su rer ; the

emplo yee w a s no t represen ted by cou n se l .Thi s employee re ceived a n in ju ry to his right hand o n

March 10, 1919, as the resu lt o f which pa rts o f the thumba nd fo u r fingers were traumatically ampu tated . He was paidspecific compen satio n at the rate o f $10 a week fo r a perio d

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356

he su ffers pain when they c ome in co n ta ct w ith anything .

He u ndersta nd s the Wo rkmen ’ s Compen satio n Act pre tty we ll ,a nd he u nderstand s if he secu res emplo ymen t at a low wagehe will rec eive from the in su rer tw o-thirds o f the differencebetween the wage he is ab le to earn and his wage previo u sto the in ju ry. He is no t ab le to d o a ny wo rk with that hand ,as it is sen sitive a nd cau se s him pain . He remembers that atthe last hearing Dr . Do no ghu e said a simple o peratio n wo u ldremo ve the cau se o f that pain . He will no t ac c ept su ch a n

o peratio n which the in su ra n ce company ha s Offered to fu rn ishhim , as he co n sid e rs it a danger to his life .

By Commissio n er : He is wearing a glo ve o ver the in ju redhand . He ha s to wear ‘this glo ve when he is o u t o n the streetin o rd er to pro te ct it from being in ju red . If, in go ing d ownstairs in the dark he hits his hand he is o b liged to sit o n the

stairs fo r ten min u te s u n til the pain go es . In the winter heha s to wear three glo ve s in stead o f o ne .

At the requ e st o f c o u n se l fo r the in su rer the repo rts o f theprevio u s hearings are mad e pa rt o f this re co rd .

Whe n asked by the Commissio n er to te ll his sto ry a nd sta teju st why he is claiming d o u b le compen satio n , Pe ter Jaku tis ,the employee , fu rther te stified as fo llowsOn March 10, whe n he started in to wo rk in this sho p , he

first started o n a band saw and the n o n a circu lar saw machine .

In sid e o f te n min u te s he w a s thro u gh wo rking o n the circu larsaw ma chine a nd w a s waiting fo r the plan ing machine . Mr .

Higley, the pro prie to r, a nd Mr. Taylo r, the head m a n o f thatco n cern , were stand ing talking abo u t some thing . Then theywere me a su ring, layin g d own a straight edge o n the plan ingmachine . After fixing the machin e a little with a straightedge a n d se tting the machine , Mr. Taylo r sta rted to wo rk o n

tha t machine with a pie ce o f wo o d abo u t six fe e t lo n g . Mr.

Taylo r w a s n o t u sing the machin e pro pe rly,“ ju st the w ay

he w a s pu shing this stick Of wo o d . When he saw the c o n

d itio n Of the ma chin e a nd the w ay Mr . Taylo r w a s u sing themachine he u n d ersto o d tha t the machine w a s o u t Of o rd er .

When he saw them measu ring a nd setting the machine he u nd ersto od it w a s o u t Of o rd er . He d id n o t se e the gu a rd whichis su ppo sed to b e o n that machine a cco rd ing to the Massa

357

chu se tts laws . He said to Mr . Taylo r, What is the matterwith this machin e ; She is o u t o f o rder? ” a nd Mr. Taylo r d idno t an swer him . He asked Mr. Taylo r the seco nd time ,“What is the matter with that machin e b ite s ? ” a nd stillhe d id no t rece ive an an swer. When he saw that Mr. Taylo rwas thro u gh with the machine he asked him , fo r the thirdtime ,

“Yo u a re thro u gh with that machine ,

”a nd Mr . Taylo r

said , GO ahead . Mr . Taylo r said that in a mad a nd excitedway. When Mr . Taylo r to ld him to go ahe a d he tho u ghttha t he mu st have be en mistaken ab o u t the co nd itio n o f the

machin e , a nd that the machin e mu st be all right if this m a n ,

who w a s the forema n , said to go ahead a nd u se it . He tho u ghtMr. Taylo r kn ew the machin e better than he , as this w a s thefirst d ay he ha d wo rked there . He , witn e ss , started to u se the

machin e , a nd when he ha d pu shed the pie ce Of wo o d halfwayhe kn ew the machin e w a s o u t Of o rd er, b u t it was then impo ssib le fo r him to take bo th o f his hand s Off from the machine ,as if he d id that he wo u ld be liab le to be hit in the che st withthe pie ce o f wo o d a nd killed . He tho u ght he wo u ld be a b leto ho ld the pie ce Of wo o d a nd pu sh it right thro u gh, b u twhe n he pu shed it way thro u gh the kn ive s a nd b ig cha in o n

the ba ck platfo rm ha d dro ppe d d own a nd the kn ive s werepro je cting higher than the platfo rm and gave it a chan ce to

take b ig shavings from the pie ce o f wo o d . Whe n it take s b igshavings from a pie ce o f wo o d n o m a n ha s the power to ho ldit, a nd the pie ce o f wo od flew away a nd his hand slippe d in tothe kn ife . The b a ck platfo rm was no t statio nary, the se ttingscrews be ing o u t o f o rd er. He knows the co nd itio n o f the

machine be cau se he made a n examinatio n o f it afte r he cameOu t o f the ho spital . A ma n by the name o f Jack No rman tieda pie c e Of ro pe aro u nd his hand . Witne ss was stand ing in the

midd le o f the ro om . The pro prie to r came in a nd asked himwhere he wa n ted to go , and he to ld him to take him to the

nearest ho spita l . He was then taken to the Some rvilleHo spital .Cro ss-examinatio n : This was the first d ay that he had

wo rked in that shOp. The accid en t o ccu rred abo u t 9 A .M.

He was in ju red o n a pla n ing machine . He kn ew how to ru n

a plan ing machin e . He saw the pro prie to r a nd Mr. Taylo r

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wo rking o n that machine, and he tho u ght that it was o u t o f

o rd er. As he watched him o pe rate the ma chine it d id n o t seemto wo rk right , a nd he asked him twice what was the matterwith it a nd rec eived n o an swer . He then asked Mr Taylo rif he was thro u gh, an d Mr . Taylo r said ,

“GO ahead , in a mad

way . And b e cau se Mr. Taylo r said to go ahead , he to o k itfo r gran ted that the machine w a s all right a nd wen t to wo rko n it . This accid en t happened o n the first pie ce o f wo o d thathe pu t in the machin e . He had n o t d o ne a ny wo rk o n thisplan er be fo re the accid en t , as he had been wo rking o n the

band a nd circu lar saw . He was o n ly wo rking o n the planerab o u t tw o , thre e o r five min u te s whe n the accid en t o ccu rred .

He pu t a pie ce Of wo o d in the machine , sta rted to wo rk o n ita nd the acciden t happened right Off . It happen ed o n the

first pu sh he mad e . The first cau se Of the accid en t wasbeca u se the machin e w a s o u t o f o rd er, an d the se co nd cau sewas that the machine was n o t pro te cted . While he w a s

waiting to u se the machine Mr. Taylo r kn ew the ma chine w a s

o u t o f o rd e r . While witn e ss w a s o perating the machin e Mr .

Taylo r tried to ad ju st the whee l , b u t in his excitemen t witn e ssthinks he w a s tu rn in g it in the wro ng d irectio n a nd givin ghim still fu rthe r cau se fo r the in ju ry . The se ttin g o r ad ju stin gwhe e l was lo o se , which give s a cha n c e fo r the ta b le to slid ed own ; o n e sid e o f the tab le is leve l a nd o n e sid e d own , allowingthe kn ive s to exte nd o u t o ver the su rface mo re tha n they a re

su ppo sed to .

By Commissio n er : They mad e a s trap fo r him . It se ems tohim tha t they inte nd ed that he sho u ld be In j u red . He d o e sn o t think they intend ed to in ju re him in the first degre e , b u tin the sec o nd d egre e he thinks they se t the trap fo r him . He

ha s wo rked fo u rte e n ye ars in this co u n try . He h a s wo rkedfo r Heywo o d Bro thers, Wakefie ld , Ma so n Pian o Company,Sylve ster Towe r Compa ny, Po la nd Lau n dry in Ro xb u ry a nd

the jo in ing d epa rtmen t at the Fo re River Shipb u ild ing Co rporatio n .

William Yo u n ie , called by the emplo yee , te stified that he isfo reman fo r Ge o rge Lo u nd sb u ry , carriage a nd wago n b u ild ers .Mr. Jaku tis wo rked fo r him a year and a half o n carriage a nd

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c lin ed it, that the Bo ard ru le that he is acting u nrea so nab lyin declin ing it, u nd er the d e cisio n in Flo c cher Case, 221 Ma ss .page 54, and is no t en titled to compen sa tio n .

L. C . DOYLE ,E sq . ,

Cou nsel .

FIND INGS AND DE CISION OF INDUSTRIAL ACCIDE NT BOARD .

Bo th partie s having filed a claim fo r review, the Ind u stria lAccid en t Bo ard heard the partie s a t Bo sto n , Ma ss . , o n Thu rsd ay ,

Nov. 1 1 , 1920, at A .M.

Pre sen t : Me ssrs . Kennard (chairman), Dickin so n , Parks ,Do nahu e a nd Gleaso n .

Appearan ce s : Lo u is C . Doyle , E sq .,fo r in su rer ; employe e

appeared perso nally .

Qu e stio n s : (1) in ca pacity ; (2) whe ther o r n o t this employeeis en titled to do u b le compen satio n d u e to serio u s a nd willfu lmisco nd u ct o n the pa rt Of his emplo yer.

The repo rt Of the Bo ard memb er co n ta in s all the materialevid en ce in the ca se .

The Ind u stria l Accid en t Bo ard , o n review, affirm a nd ad o ptthe find ings a nd ru lings o f the Bo a rd memb er, that the

employe e ’s in ju ry w a s n o t d u e to the serio u s a nd willfu lmisco nd u ct o f the su b scrib er o r Of a ny perso n exercisingthe powers o f su perin tend e n ce u nder Pa rt II , se ctio n 3, o f

the a c t ; that the employe e ha s no t acted u nreaso nab ly in the

matter o f a ccepting the o peratio n Offered him by the in su rer ;a nd that he co n tin u e s to be to ta lly in capacitated fo r wo rk asa re su lt o f the in ju ry re ce ived by him o n March 10

,1919,

a nd is en titled to the co n tin u a n ce o f a we ekly compen satio no f $14, su b je ct to the provisio n s o f the act .

DAVID T . DICKINSON .

JOSE PH A . PARKS .

CHE STER E . GLEASON .

Filed Mo nday, No v. 22, 1920, at 9 A .M.

361

DISSE NTING OPINION .

The single member who heard thi s case ru led that the em

plo ye e is no t acting u nreaso nab ly in re fu sing a n o pe ra tio n , ashe was no t satisfied that the re su lt o f su ch an o peratio nwo u ld be a real and su b stan tial physical gain .

”The majo rity

Of the Bo ard have affirmed this find ing o r ru ling. We believethat the ru ling requ e sted by the in su rer sho u ld b e granted .

WM . W. KENNARD .

FRANK J . DONAHUE .

Filed Mo nday, Nov. 22, 1920, at 9 A .M.

DE CRE E OF SUPREME JUDICIAL COURT .

JE NNE Y, J . The employee in perso n ha s argu ed fu lly a nd

with mu ch earn e stness that he is aggrieved by the d ecree o f

the Su perio r Co u rt fo llowing a nd e stab lishing the find ings o f

the Ind u strial Accid e n t Bo a rd . The en tire re co rd ha s be e nexam in ed wi th care . The qu e stio n s cla imed to b e invo lvedre late to the co n ten tio n Of the emplo ye e : ( 1) that spe cificcompen satio n to which he had b e en en titled beca u se o f the

trau m atic am pu tatio n Of his thumb and parts o f all the o therfingers o f his right hand ha s b e en d isco n tin u ed wro ngfu lly ;(2) tha t he is en titled to d o u b le compen satio n b e cau se his

in ju ry w a s cau sed by serio u s a nd willfu l misco nd u ct, fo r whichhis employers were re spo n sib le ; and (3) that he is en titled tohave his we ekly in stallme n ts “

red e emed by the paymen t o f alump su m .

”

The first o f the se claims is u n tenab le b e cau se the statu tecreating the rights o f the emplo ye e to spe cific compe n satio nlimits the paymen ts there fo r to twenty-five we eks exceptwhere the ha nd is rend ered pe rman en tly in capab le O f u se .

Flo c che r’

s Case , 221 Mass . 54 ; La c io ne’

s Ca se , 227 Ma ss .269. The finding o f the Bo ard , tha t the in ju ry to the em

ployee d id n o t rend er his hand perman en tly in capa b le o f u se ,

being su ppo rted by evid en ce , was fin al . It can n o t b e reviewed

362

by this co u rt . St . 191 1 , c . 751 , Part III , 1 1 , a s amend ed bySt . 1912, c . 571 , 14 ; St. 191 1 , c . 297, -7 ; Herrick

’ s Case ,217 Mass . 1 1 1 ; Am o d io

’

s Case , 233 Mass . 104. Fo r the

reaso n last given the se co nd claim cann o t prevail . No r c a n

the third gro u nd he su stain ed ; a s the employee is o f age ,

his we ekly paymen ts ca nn o t be redeemed by the paymen t o f

a lump sum except after they have been co n tin u ed fo r n o t

le ss than six mo n ths, and exc ept by agre emen t o f the partie sa nd the d e terminatio n o f the Bo ard that it is fo r the b e stin tere sts o f the employe e . St . 191 1 , c . 751 Part II, 22, asamend ed by St . 1914, c . 708, 8 ; McCarthy 8 Case , 226 Ma ss .444 . Here there ha s b e en n o a gre emen t to redeem the paymen ts, and that lack fo rb ids ac tio n .

D ec ree afi rmed .

Filed April 7, 1921 .

c,

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