95 Vt. 58 | Vt. | 1921
From an order of the Commissioner of Industries disallowing their claim for compensation under the Workmen’s Compensation Act, the claimants bring this appeal. The only question certified to this Court by the commissioner, is whether on the facts found by him the claimants, or any of them, are entitled to compensation.
The facts are these, in substance: The defendant, a corporation, is extensively engaged in manufacturing sounding boards, house finish, and boxes, at factories located, respectively, at Orleans, Vermont, and-Lisbon, New Hampshire. In October, 1915, it owned a quantity of lumber stacked in piles on the Ed. Chandler farm, so-called, located in this State, a few miles
The defendant insists that the order of the commissioner dismissing the claimants’ application for compensation should be affirmed, because it does not appear: (1) That Lowell was an employee of the defendant; (2) that the defendant was hauling •lumber for pecuniary gain; (3) that it was the proprietor or operator of the business carried on at the place of the accident; and (4) that Lowell’s employment was for the purpose of the defendant’s trade or business.
While it appears that Lowell was in the employ of Joy, and entirely under his control, at the time of the accident, such facts are not determinative against the claimants’ rights. G-. L. 5758 provides how certain words and phrases used in the Workmen’s Compensation Act shall be construed; and subdivision I reads as
No question is made but that the defendant carried on the business of manufacturing sounding boards, etc., for pecuniary gain. It is a- matter of common knowledge that these articles are manufactured from lumber. And if the defendant manufactured the lumber it used for that purpose that would clearly constitute an occupation, either in and of itself, or as a part of the main project of manufacturing sounding boards, etc. This would be true, too, of the work of moving the lumber from the place where it was manufactured to the factory where it was used, whether the distance was several miles or only a few rods.
Because of this shortage in the record, the order must be affirmed unless the case be remanded for further proceedings. The claimants have filed a motion asking that this be done. This motion is opposed by the defendant on the grounds that this Court is without jurisdiction of the case, and because, as it claims, the statute permitting this Court to “remand the cause to said commissioner for further findings” (G. L. 5808) applies only to cases where error is found, and it is consequently necessary to remand for further findings that the error may be corrected.
The claim that this Court is without jurisdiction rests on the fact that the motion for this- appeal was filed within the time allowed by statute for either party to appeal to the county court. G. L. 5807, 5808. The final order of the commissioner was entered February 21, 1918, and the motion for appeal was filed February 28. In support of its claim, the defendant calls attention to cases where this Court has dismissed appeals in chancery, and exceptions in actions at law, when not filed within the time fixed by statute. But these cases are not in point. Neither is Abbott v. Sanders et ux., 83 Vt. 165, 74 Atl. 1058, where the appeal was filed before final decree had been entered. See, also, 3 C. J. 1075, where cases on this subject are collected.
It is admitted that the claimant Idella is not entitled to compensation for reasons not necessary to state.
The order of the commissioner is affirmed as to Idella Lowell O’Boyle, and as to the other claimants the order is, reversed pro forma, and cause remanded to the Commissioner of Industries for further proceedings.