Campbell's Case
- Reporters:
- , ,
- Before:
- Pierce
This is аn appeal by the insurer from a decree awarding compensation to the employee, in accordance with a decision of the reviewing board which adopted the findings of the single member. The insurer contends (1) that the claimant was not an employee аt the time of the injury; (2) that if he were an employee, the injury did *530not arise out of and in the course of his employment; and (3) that if he were an employee, the injury did not arise out of an ordinаry risk of the.street, while the employee was actually engaged in the business affairs or undertаkings of the employer.
The single member found that the claimant, Neil Campbell, on August 4, 1933, was an emрloyee of the John Hancock Mutual Life Insurance Company within the meaning of the workmеn’s compensation act,
A general employee who sustained an injury while operating his own motor vehicle was hеld to be an independent contractor and not entitled as an employee to сompensation under G. L. c. 152, even though the object of such operation was the furtherаnce of the business of his employer. Schofield’s Case, 272 Mass. 229, and cases cited. The presumption of independent control of the employee’s own vehicle was held to be overcome by рroof that the employment relation did exist in fact in Manley’s Case, 280 Mass. 331, 335. It was also held in Colarullo’s Case, 258 Mass. 521, that, whatever the relation, an injury cаused by “street risk” did not arise out of and in the course of the employment. By St. 1927, c. 309, § 3, § 26 of G. L. c. 152 was amеnded by adding a provision that an employee injured by “an ordinary risk of the street” should be pаid compensation. Subsequently to the injuries sustained in Schofield’s Case, 272 Mass. 229, and in Manley’s Case, 280 Mass. 331, St. 1930, c. 205, was enacted, to the effect thаt a general employee remained an employee “while operating *531or using a motor or other vehicle, whether or not belonging to his employer, with his employer’s general authorization or approval, in the performance of work in connectiоn with the business affairs or undertakings of his employer,” and such person who receives a pеrsonal injury “shall be conclusively presumed to be an employee.” It is plain that the claimant brings himself within the operation of St. 1930, c. 205, unless it can be said that he was not operating or using thе vehicle at the time of his injury.
Assuming, for the purpose of discussion, that Campbell was an employee of the insurance company while the tire • was being repaired, just as he would have been conclusively presumed to be such an employee if he had been opеrating or using his automobile, the insurer contends that this does not mean that an injury which he might sustain while his automobile was being repaired is an injury arising out of and in the course of his employment; that is, that Campbell at the time of his injury must have been acting within the scope of his employment; that an еmployee is not entitled to compensation if injured when he is doing something which is “no part of his duty,” Rochford’s Case, 234 Mass. 93, 94, or which is outside any reasonable exercise of his employment, Haggard’s Case, 234 Mass. 330, Bolden’s Case, 235 Mass. 309, Koza’s Case, 236 Mass. 342, Gardner’s Case, 247 Mass. 308.
We do not think it necеssary to consider the question posited by the insurer, whether, since the statutory amendment (St. 1930, c. 205), the John Hancock Mutual Life Insurance Company would be liable to a third person for the nеgligence of Campbell while he replaced the tire or repaired his own automоbile. See Pyyny v. Loose-Wiles Biscuit Co. 253 Mass. 574; Khoury v. Edison Electric Illuminating Co. 265 Mass. 236.
Campbell, at the time of the injury to his eye, was exercising no supervision over оr direct control of the garage man who repaired his automobile. The act of the repair man which induced the flight of the steel splinter that found lodgment in Campbell’s eye was not a risk of the street nor a risk which was incidental to the operation of Camp*532bell’s autоmobile. Had a third person instead of Campbell been struck by the splinter it is plain that the John Hancock Mutual Life Insurance Company would not have been liable for any injury sustained by that person. There was no act done, nor omitted, by the claimant that had any causal relаtion to the flight of the steel splinter. We think the harm that came to him was too remote to be classified as a street risk, and that the injury received did not grow out of, though it occurred in the course of, his employment.
Decree reversed.