341 Mass. 319 | Mass. | 1960
The decree in the Superior Court denied compensation in accordance with the reviewing board’s finding and decision. The employee’s testimony included the following: She worked at the Bridgway Hotel as a uniformed chambermaid; she bought the uniforms herself and took care of her own uniforms and those “of some of the others”; she wore and laundered the uniforms with the knowledge and consent of her employer; she was on her way home on August 2,1957, carrying two bags of uniforms to launder when she fell in the street about half a mile from the hotel. The board member’s decision, adopted by the reviewing board, found that the employee had completed her day’s work at the hotel, that she had left the employer’s premises and was on her way home, and, “on the testimony,” that the injury did not arise out of and in the course of employment.
The employee contends that her claim could not be denied in the absence of a finding under the clause of the statute (G. L. c. 152, § 26) enacted by St. 1927, c. 309, § 3, which authorizes compensation for an injury “arising out of an ordinary risk of the street while actually engaged, with . . . [her] employer’s authorization, in the business affairs or undertakings of . . . [her] employer.” The employee asserts that the facts found by the single member do not preclude compensation for injury from street risks. Ham
Prior to St. 1927, c. 309, § 3, which inserted the street risk clause, the view had prevailed that injuries to an employee while using the streets in the course of his employment arose, not out of his employment, but rather out of the risks peculiar to public travel, common to every traveller. Colarullo’s Case, 258 Mass. 521. There was an exception where the street was in effect the employee’s workshop and hence offered risks peculiar to the employment. Keaney’s Case, 232 Mass. 532. Egan’s Case, 331 Mass. 11,14. It has been suggested that the effect of the 1927 amendment was to put ordinary street risk injuries, that is those not peculiar to the employment (see Higgins’s Case, 284 Mass. 345, 350), into the category of compensable risks because they arise out of and in the course of employment, and that, if the statute is so construed, it is not necessary to discuss street risks at all, the only test being whether the injury arises out of and in the course of the employment. 1956 Annual Survey of Mass. Law, § 19.1. In Harvey’s Case, 295 Mass. 300, 304, and Hamel’s Case, 333 Mass. 628, 629, street risks were said not to be compensable under the “out of and in the course of his employment” clause. But in Harvey’s Case (p. 304) we said that the “facts which must necessarily have been found ... in reaching the conclusion that the employee was ... in the position of an ‘employee’ also support the conclusion . . . [of] the right to compensation for an injury arising out of the risk of the street . . ..” In neither case was the outcome dependent on the concept of an independent right rather than an enlargement of the scope of the concept of injuries arising “out of and in the course of” employment.
It is not necessary to make a precise construction in this case. The two clauses in § 26 are, in any event, so closely
Decree affirmed.