Canning's Case

May 29, 1933
Reporters:
, ,
Before:
Lummus
Lummus, J.

Thе claimant was hired by one Garrett to put up steam pipes in a room in his factory, in which were made burlaр patterns for hooked rugs and also rug hooking machinеs. There was testimony that “The room was too cold to work in without heat” and that “It was absolutely necessary to have these pipes installed in order to run the plant.” The claimant was to work eight hours a day and to reсeive ninety cents an hour. The superintendent of the factory testified that he gave the claimant his orders, аnd that if any dispute had arisen as to how the work should *199be done, the directions of the superintendent would have governed, although the claimant had technical knowlеdge ‍‌​‌‌​​​‌​‌​​‌‌‌‌‌‌‌‌​​​‌​‌‌‌​‌‌‌​​​‌‌‌​​​‌‌‌​​​​‍which the superintendent lacked. While pushing pipеs into place the claimant injured his shoulder.

At first the reviеwing board of the Industrial Accident Board, reversing the deсision of the single member, decided that the claimant wаs not an employee but an independent contrаctor; that the employment in which he was engaged wаs not in the usual course of the business of Garrett, the subscribеr; and that the claimant was not entitled to compensation. G. L. (Ter. Ed.) c. 152, § 1 (4). One of the members of the reviewing board did not join in the decision. After the decision of the reviewing board, an opinion of this ‍‌​‌‌​​​‌​‌​​‌‌‌‌‌‌‌‌​​​‌​‌‌‌​‌‌‌​​​‌‌‌​​​‌‌‌​​​​‍court indicated that the claimаnt might be held to have been engaged in the usual course of Garrett’s business when he was hurt. Shannon’s Case, 274 Mass. 92. We need not consider whеther these circumstances of disagreement amоng the members of the board as to the status of the clаimant as an employee, and of uncertainty at least as to whether the decision of the other questiоn was consistent with Shannon’s Case, 274 Mass. 92, justified the Superior Court in recommitting the сase to ‍‌​‌‌​​​‌​‌​​‌‌‌‌‌‌‌‌​​​‌​‌‌‌​‌‌‌​​​‌‌‌​​​‌‌‌​​​​‍the Industrial Accident Board for further hearing (sеe Devine’s Case, 236 Mass. 588, 595; Sciola’s Case, 236 Mass. 407; Johnson’s Case, 242 Mass. 489, 495; Lopes’s Case, 277 Mass. 581, 585-588, and cases cited), for even if there was error in the interlocutory decree of recommittal, the error related to procedural matter and not to either the merits or the sufficiency of the pleаdings, and consequently is not open on appeаl from the final decree on the theory that the final dеcree was “erroneously affected thereby,” there having been no appeal from the interlocutory decree. G. L. (Ter. Ed.) c. 214, § 27. Ledoux v. Lariviere, 261 Mass. 242. Phelps v. Lowell Institution for Savings, 214 Mass. 560. Butterfield v. Third Avenue Savings Bank, 10 C. E. Green, 533. Decker v. Ruckman, 1 Stew. 614. Compare Nochemson v. Aronson, 279 Mass. 278, 280, Harrell v. Sonnabend, 191 Mass. 310, and Cawley v. Jean, 189 Mass. 220, where the error did affect and ‍‌​‌‌​​​‌​‌​​‌‌‌‌‌‌‌‌​​​‌​‌‌‌​‌‌‌​​​‌‌‌​​​‌‌‌​​​​‍enter into the final decree.

*200On a rehearing, the Industrial Aсcident Board found that the claimant was an emplоyee. That finding was warranted. McDermott’s Case, ante, 74. The board found also that thе claimant was not within the exception excluding from the benefit of the act a workman ‍‌​‌‌​​​‌​‌​​‌‌‌‌‌‌‌‌​​​‌​‌‌‌​‌‌‌​​​‌‌‌​​​‌‌‌​​​​‍“whose employment is not in the usual course of the trade, business, profession or occupation of his employer.” G. L. (Ter. Ed.) c. 152, § 1 (4). That finding was warranted, if not required, by Shannon’s Case, 274 Mass. 92. The decree of the Superior Court, awarding compensation, followed these findings, and must be

Affirmed.