299 Mass. 471 | Mass. | 1938
This is a proceeding under the workmen’s compensation act. The member appointed under G. L. (Ter. Ed.) c. 152, §§ 7, 8, heard the parties, made a full report of evidence and filed a decision in substance as follows: The employee testified that she was working in her employer’s office on Sunday, July 7, 1935, and that after
The insurer filed a claim for review and the record contains findings and decision of the reviewing board. It is stated therein that the hearing was held at Boston on June 25, 1936. “Present: — Mr. Gleason (presiding), Mrs. Tousant and Mr. Prestera.” “The report of the” board member “contains all the material evidence.” The reviewing board “find, upon all the evidence, that the claimant did not receive a personal injury arising out of and in the course of her employment within the meaning of the” statute “and her claim for compensation is dismissed accordingly.” The insurer filed these requests for rulings: “1. That injury did not arise out of her employment. 2. That injury did not arise in course of her employment. 3. That the use of the fire escape was not a hazard of her employment or one that could be fairly contemplated by her agreement of employment. 4. That the employee in using the fire escape has gone outside the scope of her employment and incurred a danger of her own choosing and one altogether outside of any reasonable exercise of her employment. 5. That the use of the fire escape was a departure from her work and one of her own choosing.” The reviewing board “grant the foregoing requests for rulings in so far as they are material to and consistent with the findings and decision herein made.” These findings and the decision were not signed by Mr. Gleason but were signed by the other two members.
The employee filed a motion in the Superior Court that the case be recommitted to the Industrial Accident Board for a hearing before a reviewing board consisting of not less than three members, as provided in G. L. (Ter. Ed.)
The employee appealed from the denial of her motion to recommit the case for further hearing and from the decree adverse to her claim for compensation.
The decision of the single member may be reversed in whole or in part on review. G. L. (Ter. Ed.) c. 152, § 10. Johnson’s Case, 258 Mass. 489, 493. Gleason’s Case, 269 Mass. 583, 584. The findings of fact made on review are conclusive when there is any evidence to support them. Pigeon’s Case, 216 Mass. 51, 52. Von Ette’s Case, 223 Mass. 56, 59. Hughes’s Case, 274 Mass. 540, 543. The findings on review apparently are sufficient if signed by a majority of a properly constituted board. Berninger’s Case, 253 Mass. 52.
It is plain that the injury of the employee arose out of her use of the fire escape. It is not contended that the fire escape was out of repair or that the hole in it through which she fell was not a part of its proper construction. There was no evidence that the employee was ever invited to use it as she was using it at the time of her injury. The use she was making of it at the time of her injury was not the normal or natural use of a fire escape. The purpose for which a fire escape is intended and the reason for its construction as a part of a building are a means of escape from a fire. The employee clearly was not using it for any such purpose.
There was no error of law in the denial, of the motion to recommit. The facts stated in the supporting affidavit were not agreed to be true. No counter affidavit was filed. Although the motion was based upon an undisputed affidavit, the court was not bound to believe the facts therein stated, but might utterly discredit them. Commonwealth v. Crapo, 212 Mass. 209, 210. Commonwealth v. Marino, 254 Mass. 533, 536. Commonwealth v. Sacco, 255 Mass. 369, 450. Commonwealth v. Millen, 290 Mass. 406. Germain v. Raad, 297 Mass. 73, 75, and cases cited.
It is not necessary to inquire whether that denial should stand on other grounds. See G. L. (Ter. Ed.) c. 30, § 8; Opinion of the Justices, 154 Mass. 603, 606; 275 Mass. 575, 579.
Order denying motion affirmed.
Decree affirmed.