Lee's Case

279 Mass. 357 | Mass. | 1932

Pierce, J.

This is an appeal from a decree of the Superior Court denying compensation to Elizabeth B. Lee and children, alleged dependents of Frank W. Lee, deceased. The case came before the Industrial Accident Board upon a claim, filed December 15, 1930, in which it is set forth that on October 27, 1930, on the Lynn Marsh Road, an automobile accident occurred which resulted in the death of Frank W. Lee, who at that time was in the employ of Brooks & Sprague, Inc. The case was heard by a member of the Industrial Accident Board, and thereafter, on a claim for review, by the reviewing board. The report of the single member contains all the material evidence. The reviewing board upon all the evidence affirmed and adopted the findings and decision of the single member, under which it is found that the decedent’s injury did not occur in the course of or arise out of his employment, and dismissed the claim.

At the hearing in the Superior Court the trial judge interpreted the record as showing that the single member made both a finding and a ruling that the injury did not arise out of the employment, and that he made a ruling that the injury did not arise in the course of the employment, though the ruling last mentioned is referred to by him as a finding. We think the interpretation thus given to the record is right.

The claimant admits that the finding of the Industrial Accident Board on questions of fact are final and cannot be set aside if there is any evidence to support them. She further admits that the findings of the single member, being affirmed by the board, must be taken to be the board’s finding, Burns’s Case, 266 Mass. 516, but as all the material evidence is contained in the report, contends that, while the facts themselves cannot be inquired into, the question whether the inferences to be drawn are reasonable and warrant the findings is a question of law which may be reviewed by this court. The position taken is sound and finds support in the decisions of Donovan’s Case, 217 Mass. 76, 77, Buckley’s Case, 218 Mass. 354, 355, Sanderson’s Case, 224 Mass. 558, 561, Riley’s Case, 227 Mass. 55, 57, and Silver’s Case, 260 Mass. 222, 224.

The single member found that this claim arises out of the death of the claimant’s husband who worked for the subscriber; that at the time of the injury he was riding between Lynn and Revere in a truck, owned by the subscriber used in its business, which was being driven by the man whose job it was to handle the truck, and who at the time was taking it home after the day’s work in Lynn to the place where it was garaged in Cambridge; that the employee was riding on the truck from a point in Lynn to a point in Revere where he would have alighted from it and walked to his home in Beachmont.

The testimony of Brooks, the president of the employer, by reference incorporated in the report of the single member, discloses, in substance, that the employee’s hours of labor were until five or six at night although he seldom got through at that time; that he was subject to call at any time; that in connection with the business a motor truck was used which was operated by several different men; that he knew that Lee. rode upon that truck at various times, several times, knew that he rode home several times; that he had his consent to ride at any time; that "Lee did not pay anything for that privilege”; that "the situation was that Lee was going home. There was no arrangement; Lee just happened to ride the same as anybody else, as any of the men who were there when the truck happened to be going”; that at no time did witness agree to furnish Lee with transportation. He further testified "that when Lee was riding home he was dressed up to go home, was not in [his] working clothes. He was in the employ of the owner of the truck. He would expect him to take hold, in case of breakdown, a little more than a stranger. It was an additional help in that situation to the car owner to have Lee on hand.”

The claimant and the insurer rely upon Donovan’s Case, 217 Mass. 76, 78, where it is stated that "the rule has been established, as we consider in accordance with sound reason, that the employer’s liability in such cases depends upon whether the conveyance has been provided by him [the employer], after the real beginning of the employment, in compliance with one of the implied or express terms of the contract of employment, for the mere use of the employees, and is one which the employees are required, or as a matter of right are permitted, to use by virtue of that contract.” Without an attempt to analyze all the evidence or to determine whether the single member and the reviewing board might reasonably have inferred that Lee as an incident of his employment had a right to transportation to the neighborhood of his home when the truck was going that way at the close of the day’s work, we are of opinion that the claimant has not sustained the burden which was upon her of establishing that there was such an implied contract, with the result that she has also failed to prove that the accident and injury came upon the employee during the course of his employment.

Decree affirmed.