297 Mass. 178 | Mass. | 1937
This is an appeal by the claimants from a decree of the Superior Court, dismissing the claim for compensation and reversing the findings and decision of the Industrial Accident Board, which affirmed and adopted the findings and decision of the single member. G. L. (Ter. Ed.) c. 152.
The only question involved in the case is whether there is any evidence to sustain the Industrial Accident Board’s finding that the deceased was an employee of the town of Princeton at the time he received the injuries from which he died. The claimant relies on the settled law of the Commonwealth that findings of fact by the Industrial Accident Board will not be disturbed if there is any evidence, no matter how slight, to sustain them. Doherty’s Case, 222 Mass. 98. Savage’s Case, 222 Mass. 205. Crowley’s Case, 223 Mass. 288. Devine’s Case, 236 Mass. 588. Cooper’s Case, 271 Mass. 38.
The reported evidence warranted the finding of facts, in substance, as follows: The deceased resided in the town of Princeton. The town was the owner of Woodlawn Cemetery, and was desirous of doing some work therein. One Robert B. Mason was cemetery commissioner during the time the deceased worked at the cemetery. Mason drew up specifications and figured the cost for labor and material in doing certain work in the cemetery. In February, 1935, the town appropriated money for work to be performed on this project. Application for funds was then made to one Warren F. Bryant, who was the local administrator for the Emergency Relief Administration (hereafter referred to as the E. R. A.) “from approximately April 1, 1935, to the end of the E. R. A. the first of December, 1935.” The application was filled in by Bryant and was signed by the chairman of the cemetery commissioners and the chairman of the board of selectmen of the town of Princeton, as was required. “The arrangement made between the town of Princeton and .the Federal government was that the Federal government
Bryant knew that the deceased was a foreman on one of the jobs of the E. R. A. and when the cemetery project was started, on July 16, 1935, he employed him as foreman of that job at $18 a week. The only time the Federal inspectors appeared on the job was when the engineers came to see if the particular project was in accordance with plans. “The actual supervision of the work was done by department heads of the town of Princeton under whom the project came.” “The E. R. A. was strictly a relief
The workmen’s compensation act provides that a town may accept the act and shall pay compensation to “laborers, workmen and mechanics employed by it” for injuries arising out of and in the course of their employment. G. L. (Ter. Ed.) c. 152, § 69. By § 1 (4) the word “Employee” is defined as meaning “every person in the service of another under any contract of hire, express or implied, oral or written.” The test to determine whether the E. R. A. or the town of Princeton was the employer of the deceased at the time of his injury is the answer to the questions, Who had the direction and control of the deceased and to whom did he owe obedience in respect to his employment?
An analysis of the entire evidence, excluding testimony elicited on cross-examination which was inconsistent with the direct testimony for the claimant, discloses that after the money was appropriated by the Federal government supervision of the work was under the town. “The only time Federal inspectors appeared on the job was when engineers came to see if the particular project was in accordance with plans.” The administrator of the E. R. A., who received the application of the town for Federal aid for its cemetery project, after the application was approved did not have any further supervision over that work. The evidence warranted the finding of the single member, adopted by the Industrial Accident Board, “that this cemetery project in the town of Princeton was laid out, managed and supervised by the cemetery commissioner of the town of Princeton; and, that all the benefit from this project inured to the town . . . [and] that the deceased . . . was under the control and supervision of the cemetery commissioner of the town of Princeton and was an employee of the town.” Scribner’s Case, 231 Mass. 132. Chisholm’s Case, 238 Mass. 412, 419. In the opinion of a majority of the court the decree must be reversed and a decree entered for the claimant.
So ordered.