323 Mass. 35 | Mass. | 1948
Early in the morning of May 5, 1945, the employee, a taxi driver, was severely injured as a result of an atrocious assault committed upon him. The principal question for decision is whether the evidence warranted á finding that his injury arose out of and in the course of his employment.
The following is a summary of the pertinent evidence. The employee worked on the night shift which commenced at 4:30 p.m. and ended at 3 a.m. He usually brought his cab back at the regular time but if he did not “.there was no penalty put on him” by his employer .and nothing was said to him. In May, 1945, gasoline rationing was in effect and a driver “could drive one hundred miles from the time he left for work until he got back.” On the afternoon of May 4, 1945, the employee left his home for work at approximately 4:45 p.m. Between eleven and twelve o’clock he visited- a Miss O’Hanley at her home in Jamaica Plain. At two o’clock in the morning of May 5 he left, telling Miss O’Hanley that he had “got to get going and get some business.” He was next seen in these circumstances: At about 4:15 a.m. a telephone message was received at police headquarters from a resident of Windsor Street, Roxbury, to the effect that there was a “commotion” in a taxicab at Windsor and Westminster streets, and two police officers were immediately sent there in an automobile. Arriving at Windsor Street at about 4:20, they found the cab which the employee had been driving parked near the curb with the motor and meter running. The employee was lying unconscious “with body partly in and out of the right door of the cab, his head resting on the other side, and covered with blood.” Brain tissue protruded from a perforation over his right ear. Blood and particles of brain tissue were observed on the front seat of the cab. A medical examination of the employee at the hospital to which he was taken revealed that he had sustained multiple compound fractures of the skull and lacerations of the scalp and brain. There was no partition between the front and rear seats of the cab. The injuries sustained by the employee were consistent with his having been struck from behind. A broken
The single member of the Industrial Accident Board found that the employee failed to prove that his injuries arose out of and in the course of his employment, and denied his claim for compensation. The reviewing board, upon the evidence heard by the single member, reversed his findings and decision, and on findings of its own decided in favor of the employee. From a decree of the Superior Court ordering payments in accordance with the board’s decision, the insurer appealed. The findings and decision of the reviewing board, which superseded the action taken by the single member (Di Clavio’s Case, 293 Mass. 259, 261), must stand unless they are unsupported by the evidence, including all rational inferences that the testimony permitted. The essential facts need not necessarily be proved by direct evidence but may be established by reasonable inferences drawn from facts shown to exist. Sawyer’s Case, 315 Mass. 75, 76. Gianfriddo’s Case, 319 Mass. 566, 567.
1. Although to a considerable extent the events from which the employee’s injuries resulted are shrouded in mystery, we think enough appears to warrant the findings made
A question of more difficulty is whether the employee’s injury was one arising out of his employment. We are of opinion that it was permissible for the board to find that it was. It is true that the employee might have been exposed to a similar risk if he had not been driving the taxi. But that is not the question. The question is whether his employment brought him in contact with the risk that in fact caused his injuries. Caswell’s Case, 305 Mass. 500. Souza’s Case, 316 Mass. 332, 334. The employee’s work required him to operate his cab at a late hour of the night and to transport without discrimination those who sought transportation. See Guinevan v. Checker Taxi Co. 289 Mass. 295, 297. We cannot say that the board erred in finding, as in effect it did, that one of the risks involved in the employment was that of assault by a passenger and that there was a greater likelihood that the employee’s injuries resulted from such an assault than from one which was not connected with his employment. See Gargano v. Essex County News Co. 129 N. J. L. 369; Hartford Accident & Indemnity Co. v. Hoage, 85 Fed. (2d) 417 (C. A. D. C.); Casualty Reciprocal Exchange v. Johnson, 148 Fed. (2d) 228 (C. C. A. 5). See annotations in 72 A. L. R. 110, 114-116, and 112 A. L. R. 1258, 1262-1265.
2. The insurer argues that there was prejudicial error in the admission of certain evidence. Subject to the insurer’s exceptions the single member admitted evidence through police officers and the employee’s employer of other holdups and robberies of taxi drivers in the city of Boston. These exceptions were renewed before the reviewing board. See Di Clavio’s Case, 293 Mass. 259, 261. As tending to prove that the assault on the employee arose from a robbery, this evidence of course would not have been competent. But it is apparent that the board did not base its decision on the fact that the employee had been robbed; it ruled, as stated above, that proof of motive for the assault was not required. It is difficult therefore to see how this evidence could have harmed the insurer. Moreover the evidence added little, if anything, to what the board knew as a matter of common knowledge. “Independently of G. L. (Ter. Ed.) c. 231, § 132, but in accordance with general equity practice, a decree in a workmen’s compensation case will not be reversed for error in the admission or exclusion of evidence, unless substantial justice requires reversal.” Indrisano’s Case, 307 Mass. 520, 523. No substantial rights of the insurer were affected by the admission of this evidence.
Decree affirmed.
These findings included the following: “We find and infer from the evidence . . . that the employee was assaulted about the head, by means of a hammer wielded by a passenger or passengers for hire, or a person or persons presumed by him to be such, while in the course of his employment, that he was subject to such risk of assault in all of the circumstances and that his injury also arose out of his employment.”
See Sponatski’s Case, 220 Mass. 526, 528; Sanderson’s Case, 224 Mass. 558, 561; Dube’s Case, 226 Mass. 591, 594-595; McMahon’s Case, 236 Mass. 473; MacDonald’s Case, 277 Mass. 418, 421. The decision of Murphy v. Boston & Maine Railroad, 319 Mass. 413, is not inconsistent with this principle.
“ 1. The claimant has the burden of proving every issue essential to an award and compensation. 2. A claimant in a workmen's compensation case can no more prevail if factors necessary to support his claim are left to surmise, conjecture, guess or speculation than can a plaintiff in an ordinary action in tort or contract. A sure foundation must be laid by a preponderance of evidence in support of his claim before he can succeed. ... 3. The rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment and not by some other agency or there can be no recovery. ... 4. There is no evidence to warrant a finding that the employee’s injury arose out of and in the course of his employment. ... 5. There is no evidence that the motive for the assault upon the employee was connected in any way with his employment. 6. There is no evidence to warrant a reasonable inference as to what occasioned the assault upon the employee. 7. A felonious assault upon an employee by an unknown person is not to be anticipated as a natural risk of employment. 8. An employee’s injury is not compensable unless it has its origin in a risk connected with his employment and flows from that source as a natural consequence.”