King's Case
220 Mass. 290
Mass.
1915
Check Treatment
Braley, J.

The findings of the Industrial Accident Board, that the employee at the time of the accident which caused his death, while delivering brick in the course of his employment, was the servant of Deguio a subcontractor of the Boston Brick Company, a subscriber of the insurer, were warranted by the evidence. Morgan v. Smith, 159 Mass. 570. Driscoll v. Towle, 181 Mass. 416, 418. Delory v. Blodgett, 185 Mass. 126. Oulighan v. Butler, 189 Mass. 287, 290, 291. Haskell v. Boston District Messenger Co. 190 Mass. 189, 193. Bowie v. Coffin Valve Co. 200 Mass. 571, 578. It would follow under St. 1911, c. 751, Part III, § 17, and §§ 6, 7 of Part II, that the dependent, the employee’s widow, would be entitled to the compensation awarded. But, as the accident happened while § 2 of Part V, since amended by St. 1914, c. 708, § 13, was in force, the insurer contends, that, not only was the further finding that the employee’s service was not casual unwarranted, but the ruling that the burden of proof rested on it to show the scope of his employment was wrong.

If it be assumed that the “excerpts from the transcript of the evidence” attached to the decision at the insurer’s request state all the evidence on this question, the employment was but for a single day. Under the most favorable interpretation for the *293dependent there was no agreement or understanding express or implied extending the service beyond the close of the day’s work, and the present case cannot be distinguished in principle from Gaynor’s Case, 217 Mass. 86, and Cheevers’s Case, 219 Mass. 244, where it was held that, the employment being casual, the employee did not come within the statute.

The assumption, however, cannot be made. It is only "excerpts” which are contained in the record, and it being impossible to say as matter of law that there was no evidence warranting the finding, the fifth ruling requested could not have been given. Bentley’s Case, 217 Mass. 79, 80.

The burden of proof, however, did not shift. Carroll v. Boston Elevated Railway, 200 Mass. 527. The dependent was required to satisfy the board that the employee’s service was such as to entitle her to compensation for his death. New Bedford v. Hing-ham, 117 Mass. 445. Thackway v. Connelly & Sons, 3 B. W. C. C. 7. Barnabas v. Bersham Colliery Co. 3. B. W. C. C. 216. The contrary ruling having been erroneous we are obliged to reverse the decree.

So ordered.