305 Mass. 94 | Mass. | 1940
This workmen’s compensation case comes before us on the appeal of the insurer from a decree of the Superior Court awarding compensation in accordance with the decision of the Industrial Accident Board. After the entry of the appeal in this court, the workman involved
The findings of the single member of the board and his decision were adopted and affirmed by the reviewing board. The findings are in substance as follows: The deceased applied to the city of Woburn for “welfare” and was granted relief “to the value of $8.20 per week.” This amount was based upon the number of persons in his family. In return for the “welfare” he was obliged to work at thirty-five cents per hour for the number of hours each week “that would be equivalent at thirty-five cents per hour to the amount he received as welfare.” The city compelled all able-bodied men receiving welfare to work in a similar manner. There was testimony “that in the event a welfare recipient refused to work 'we get a complaint for nonsupport.’” The deceased had worked for a number of weeks on different types of work. He was injured while working on an ash truck on April 11,1938, (inadvertently stated in the findings as April 10, 1938,) and sustained a fracture of the right femur.
The single member further found that the deceased was an employee of the city of Woburn “under a contract of hire,” that his injury arose out of and in the course of his employment, that he was totally disabled thereby down to the date of the filing of the decision of the single member (January 6, 1939), that his wages were $8.20 a week, and ordered compensation to be paid at that rate “per week from April 10 [sfc] 1938 to the date of the filing of this decision,” and that the insurer continue to make payments “in accordance with the terms of the Act.” These findings were made “upon all the evidence,” which discloses the following additional material facts: The welfare to the value of $8.20 that the deceased was receiving was given in the
The following stipulation was filed in the case: “In the above case, it is hereby stipulated and agreed that Scordis, at the time of the accident in question had -a lawful settlement, (G. L. c. 117, § 14, as amended) in the town of Danvers; that prior to his accident and following his application for relief, the city of Woburn notified the town of Danvers that the said Scordis had applied for relief, which had been granted, and it further requested the town to remove the said Scordis or otherwise the city of Woburn would be obliged to aid him and charge the town of Danvers for this aid. Following this notice, the town of Danvers acknowledged that the settlement was in the town of Danvers and later paid to the city of Woburn the amount which the city had expended for the relief of Scordis and his family, up to June 30, 1938.”
We are of opinion that the finding that the deceased was an employee of the city at the time of his injury under a contract of hire was hot warranted on the evidence.
The relief and support was granted to the deceased under G. L. (Ter. Ed.), c. 117, § 14, as amended by St. 1937, c. 113, (see now St. 1938, c. 275; St. 1939, c. 39) wherein it is provided that “Boards of public welfare in their respective towns shall provide for the immediate comfort and relief of all persons residing or found therein,
Under the terms of G. L. (Ter. Ed.) c. 152, § 1 (4) (the workmen’s compensation act), an employee is defined, with exceptions not here material, as “every person in the serv
The counsel for the legal representative of the deceased has urged, however, that since the cash and supplies were furnished to the deceased by the city and he was under the direction and control of the duly authorized representatives of the city at the time of his injury, he was an employee of the city, citing in support of this contention Gates’s Case, 297 Mass. 178, 181, where, after stating the definition of an employee under c. 152, § 1 (4), the court said: “The test to determine whether the E. R. A. or the town of Princeton was the employer of the deceased at the time of his injury is the answer to the questions, Who had the direction and control of the deceased and to whom did he owe obedience in respect to his employment? ” But even if in some circumstances evidence of direction and control might in itself be sufficient to warrant a finding of a contract to hire (see Donnelly’s Case, 304 Mass. 514, 519) the underlying and fundamental test still remains whether the workman when injured was in the service of another under a contract of hire, express or implied, oral or written (see McDermott’s Case, 283 Mass. 74), and not only the circumstances of direction and control must be considered in the determination of that question, but also all the other attendant circumstances. Where, as here, the other attendant circumstances are that the deceased was given relief and support by legislative mandate, and that the service performed in return therefor was exacted under legislative authority, the evidence of direction and control of the workman is not sufficient of itself to warrant a finding
In Commonwealth v. Pouliot, 292 Mass. 229, at pages 231-232, the court said: “The obligation of a husband and father to maintain his family, if in any way able to do so, is one of the primary responsibilities established by human nature and by civilized society. The statute enforces this duty by appropriate sanctions. A reasonable opportunity is afforded to the defendant by the city to provide for the support of his wife and children. The statutes require that support at the public expense be provided for the poor and indigent residing or found in the several towns. G. L. (Ter. Ed.) c. 117, §§ 1, 2, 14, 17, 18.” See also Wilson v. Brooks, 14 Pick. 341, 343; Marlborough v. Lowell, 298 Mass. 271, 273.
The obligation to relieve and support the poor and indigent is mandatory even in cases where the one relieved is unable to work in return for the relief granted. See Commonwealth v. Pouliot, 292 Mass. 229; and McBurney v. Industrial Accident Commission, 220 Cal. 124, a case closely resembling in its facts the present case. In the latter case, at page 127, the court said: “The petitioner had the right to invoke the relief granted and under the circumstances here shown the county could not deny it. The transaction thus far is in the field of public welfare, and the essential characteristics of a contract of hire are not present.” While it does not appear that the statutes governing this case contained provisions for the employment of the poor and indigent, as in the present case, the court held that the county was “entitled to . . . [the] services and earnings [of the workman] to aid in his support,” and that a contract of hire did not exist at the time of the injury of the workman under workmen’s compensation laws. A number of cases to the same effect are there cited.
Counsel for the representative of the estate of the deceased has also relied upon the cases of Porton v. Central
The result we have reached is supported in principle by such cases as Vaivida v. Grand Rapids, 264 Mich. 204, followed in Davenport v. Detroit, 268 Mich. 374, and in Oleksik v. Detroit, 268 Mich. 697 (a case much like the present case in its facts, except that there, and in the cases it follows and also in other cases, the result was reached without the aid of any statute requiring work by recipients of poor relief who were able to work), and by McBurney v. Industrial Accident Commission, 220 Cal. 124, In re Moore, 97 Ind. App. 492, Lawe v. Department of Labor & Industries, 189 Wash. 650, Watson v. Government Instructional Centre, 97 L. J. K. B. (N. S.) 596, Gilroy v. Mackie, 46 Sc. L. R. 325, Tozeland v. Guardians of the Poor of the West Ham Union, [1907] 1 K. B. 920, and Hattler v. Wayne County, 320 Penn. St. 280, 282, 287. Running through these cases is to be found a recognition of the basic principle that under workmen's compensation acts where the term employee is defined substantially as in our act (G. L. [Ter. Ed.] c. 152, § 1 [4]) a contractual relationship is necessary between the one who serves and the one served, and also of the principle that no such relationship exists where the work is rendered in return for relief and support granted to the poor and indigent under the poor laws, and this even in jurisdictions where the granting of such relief and support, as here, is mandatory, but where no provisions of statute such as ours authorize the employment of those so relieved.
The decree entered in the Superior Court is reversed and instead a decree is to be entered dismissing the claim.
So ordered.
The employee had testified before the single member that he had lived in Woburn almost five years and that he lived with his wife and child.