Warren's Case, 272 Mass. 127

Warren's Case

272 Mass. 127 | Mass. | 1930

Rugg, C.J.

It is not questioned that the employee received injury on August 23, 1926, arising out of and in the course of his employment. The controversy relates to the liability of the insurer. The employee was employed by partners who had taken out insurance in due form with the insurer covering their employees for a term including the time of this employee’s injury. On the controverted points the single member found that the subscribers, needing more money to carry on their business, borrowed from a money lender, one Dondis, amounts which regularly were entered upon their books. A bill of sale was made by the subscribers to Dondis to secure repayment of the sums thus borrowed, which was recorded with the city clerk. The subscribers continued in the possession of their property and in control and management of their business and Dondis never took possession or exercised management and control of the property or business. Respecting this matter the finding was that there was no sale of the property or business to Dondis, that at most he may have held an equitable mortgage on the property, and that the subscribers continued to be owners and managers of the property and business. It was found further that a so called assignment, also recorded with the city clerk, from the subscribers to a lawyer, one Simon, as alleged trustee for the benefit of creditors, was a mere matter of form and never intended or recorded to be of any effect or to establish rights. It was never put into effect and was regarded as a nullity by all parties to it. These findings were affirmed and adopted by the reviewing board.

These findings of fact must stand if there is any evidence *129to support them. It seems plain to us that they cannot be pronounced unwarranted. The evidence need not be narrated or summarized. The single member saw the witness. The subscribers did not testify but the other parties to the instruments gave their testimony in person. The outstanding circumstance, which might have been found to be the dominating factor, appears to be that the subscribers remained in control of the business, conducted it to all outward appearances as it had been hitherto conducted and managed, and paid their employees. Whether this was done on borrowed money is of no consequence. The finding was permissible that the instruments in writing did not represent genuine transactions but were or were intended to be something less than they purported to be, or even were shams. It is doubtful whether the written instruments (copies of which have been examined), if representing real transactions, rightly construed could be held to be anything more than transfers of stock in trade and chattels and not of the business conducted by the subscribers by means of the stock in trade and chattels. But, however that may be, it is enough to say that the single member and reviewing board were not bound to believe all the testimony and were at liberty to place the construction upon the conduct of the parties and the genuineness of the written instruments which seemed most likely to conform to the truth. The evidence falls far short of compelling a finding that the policy of insurance issued to the subscribers was rendered invalid because of these written instruments without the consent of the insurer.

The motion of the employee to dismiss the appeal need not be considered because, since the practical result is the same, there is no objection to stating the grounds of substantive law requiring a decision in his favor. Commonwealth v. McNary, 246 Mass. 46, 48.

■ The final decree is to be modified so as to* include interest from its date to the date of the 'decree after rescript on the amounts due the employee. Johnson’s Case, 242 Mass. 489, 494. As thus modified, it is affirmed.

Ordered accordingly.