232 Mass. 149 | Mass. | 1919
The case was heard in the first instance by a single member of the Industrial Accident Board, whose decision for the claimant was affirmed on review by the full board. While the insurer concedes that there was some evidence to support most of the findings of fact, we are satisfied upon reading the evidence which includes the statement of Zacharachi who shot and killed the employee, that all of the findings were warranted. The findings were as follows: “that the employee . . . was shot and killed on August 28, 1916, by one Sicilianos Zacharachi; that the deceased was head waiter at the Hotel Essex and had been such for two and a half years prior to the shooting; that the deceased employee had been employed as a waiter and as head waiter at the hotel for about sixteen years; that his duties as head waiter embraced the hiring and discharging of waiters, their control while on duty and the maintenance of discipline among them; that Zacharachi, the assailant, had been employed as a waiter at the hotel for about twenty years; that prior to the claimant’s decedent becoming head waiter Zacharachi had enjoyed special privileges not enjoyed by the other waiters, including a special station and shorter hours; that the deceased in the interest of discipline and to allay dissatisfaction among the other waiters and promote the interests of his employers took these privileges away from Zacharachi; that a few weeks before the shooting Zacharachi had been discharged because he was not a member of the waiters’ union and that immediately prior to the shooting the deceased had voluntarily re-employed Zacharachi but had not given him his old station; that Zacharachi was of an excitable temperament, was made ugly by drinking liquor; that
It is unnecessary to discuss the questions whether the employer knew of Zacharachi’s habits in the use of intoxicating liquors or of carrying a pistol, or that drinking caused him to be ugly, as the decision is put on the ground, that the employee “was shot and killed solely by reason of his performance of his duties as a head waiter and that as it turned out his death resulted from a risk of his employment and flowed from that source as a rational consequence.” The insurer, relying on McNicol’s Case, 215 Mass. 497, contends that compensation cannot be awarded, as the casualty could not have been reasonably foreseen by the employer, and therefore not being a risk of the employment it does not arise out of it. The shooting occurred in the employer’s dining room while Cranney was at luncheon. It is manifest that he lost his life, not because of any quarrel of his own with the assailant, but because he faithfully and properly discharged the duty owed to his employer, and thereby incurred the resentment of Zacharachi. “The servant must serve in the master’s way as he is di
We are of opinion that, so long as the employee while in the performance of the employer’s business properly exercises the authority conferred upon him by his contract of employment, injuries received by him resulting from such employment arise out of the employment, and, if death ensues, as in the case at bar, his dependents are entitled to compensation. McNicol’s
So ordered.