280 Mass. 331 | Mass. | 1932
There was evidence that the employee received injuries which resulted in his death through a collision between an automobile which he was driving and a post near the roadway. The automobile belonged to his wife who allowed him to use it; and was being driven by him in bringing from a store of the employer in Winchester to another of the employer’s stores in West Medford two turkeys desired by him, as manager of the West Medford store, for delivery to a customer there. This customer applied at the West Medford store for a turkey. None was in stock. The plaintiff was authorized to go to another of the defendant’s stores, obtain the turkey there and return with it for delivery. He was at liberty to go and return in any way he chose. It was his duty to use .all reasonable speed in so doing. The use of the automobile was reasonable. The employer does not supply cars except for transportation from its warehouse. It does not supply them for delivery of goods to customers. It is not customary for managers to have cars for this latter purpose. Some have them. Some do not. The employee of the employer in charge of managers and superintendents north of Boston knew the injured employee had a car and regarded it as proper for him to use it in going to stores other than that in his charge when he was short of supplies. Such use had his silent approval. It was right for the employee to do as he did in the circumstances. If on the spot at the time, this supervisor would have approved. The employer does not pay for mileage use, does not supply gasoline or anything of that nature, nor pay for repairs or insurance of cars so used.
The accident took place on December 6, 1929, before St. 1930, c. 205, went into effect. The hearing was on Feb
The single member ruled that St. 1930, c. 205, did not apply; found that the deceased employee was performing work which he was required to do under his contract of hire at the timé of his fatal injury and death; but, constrained as he conceived by the law as laid down in Schofield’s Case, 272 Mass. 229, Child’s Case, 274 Mass. 97, Hardaker’s Case, 274 Mass. 7, ruled that “because his death occurred as the direct result of the use by him of his wife’s automobile” compensation could not be allowed; stating: “I am obliged, under these decisions, to rule that the deceased person was an independent contractor and not an employee at the time of his injury.” On review, three members of the Industrial Accident Board found that the employee in accord with his duty under his contract of hire, using a car registered in the name of his wife, journeyed to another store of the employer’s chain to obtain a turkey for a customer waiting for a suitable turkey in the store managed by the employee, and, while the employee was engaged in the operation of this car, it skidded without fault on his part and fatally injured him; and that the talcing of the car for the purpose stated had the implied approval of the employer subscriber. They held that St. 1930, c. 205, applied to substantive law,
St. 1930, c. 205, obviously, was passed to modify the law as it was found to be in the decisions referred to and in similar decisions which had held that one who furnished a motor vehicle for his own use in the business of his employer, over the control and operation of which the employer exercised no dominion, stood with reference to that vehicle as an independent contractor and not as an employee of the employer, so that, if injured while operating the vehicle, he had no right to compensation under the workmen’s compensation act. It gave to persons injured while operating a motor vehicle with their employer’s general authorization or approval in the performance of work in connection with the business affairs or undertakings of the employer, even if, by the earlier law, they stood as independent contractors with reference to the vehicle, a new standing as employees, under G. L. c. 152, § 26, as amended.
The fundamental reason for denying compensation in the cases cited was that the injury did not arise out of the business of the employer although received in the course of that employment and so was not within the sweep of the workmen’s compensation law. Hewitt’s Case, 225 Mass. 1, 3. The change made by the statute of 1930 extended recovery under the compensation act to specified injuries which
There was error, however, in the decree that the deceased was not an employee at the time of the injury, and in the ruling that Schofield’s Case, Child’s Case, and Hardaker’s Case were controlling here. As was said in Child’s Case, 274 Mass. 97, 99, “In cases of this nature, where other factors are not determinative, the question is whether the employee ... is master over the operation of his automobile .... That power of domination is the main test . . . . ” The factors there decisive were pointed out. That decision recognized that other factors might exist in other cases and be decisive; and that domination, though a main test, might not be controlling. The case before us differs in its factors from Child’s Case and from the cases cited in support of the decision there reached; Comerford’s Case, 224 Mass. 571; Towne’s Case, 254 Mass. 280; Bradley’s Case, 269 Mass. 399; Schofield’s Case, 272 Mass. 229; Hardaker’s Case, 274 Mass. 7; Pyyny v. Loose-Wiles Biscuit Co. 253 Mass. 574; and Khoury v. Edison Electric Illuminating Co. 265 Mass. 236. See also Strong’s Case, 277 Mass. 243; Neelon v. Hirsh & Renner, Inc. 255 Mass.
It follows that the decree must be reversed, and it is
So ordered.