Boyce's Case

• Decision Date: 11 June 1951
• Citation: Boyce's Case, 81 A.2d 670, 146 Me. 335 (Me. 1951)
• Parties: BOYCE'S CASE. BOYCE v. MAINE PUBLIC SERVICE CO. et al.
• Court: Maine Supreme Court

Page 670

81 A.2d 670

146 Me. 335

BOYCE'S CASE BOYCE v. MAINE PUBLIC SERVICE CO. et al.

Supreme Judicial Court of Maine.

June 11, 1951.

Robinson, Richardson & Leddy, Portland, for appellant.

James E. Mitchell, Bangor, for appellee.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY, and WILLIAMSON, JJ.

FELLOWS, Justice.

This case is in the Law Court on appeal from a decree of the Superior Court for Piscataquis County affirming a decision of the Industrial Accident Commission awarding compensation to James A. Boyce as an employee of the Maine Public Service Co.

The petitioner Boyce asked for an award against the Maine Public Service Co. for serious personal injuries by accident arising out of and in the course of his employment, when he fell through a skylight of a camp building at Mooseluk Lake while shoveling snow from the roof on February 15, 1950. The defendant Company claimed that the plaintiff (petitioner) was not employed by it at the time of receiving the injuries, and that in any event the accident did not arise out of and in the course of his employment.

The record fairly shows that James A. Boyce went to work for the Great Northern Paper Company at Mooseluk Lake in the summer of 1948 where the Paper Company was constructing a dam. Boyce did some cooking, worked on a road, and worked on the dam. The dam was completed in the early part of 1949. During the winter of 1948-1949 Boyce looked after the property for the Paper Company.

The activities of the Great Northern Paper Company ceased in the fall of 1949, and Boyce expected to be 'laid off' and received word that he was going to be, and that the Maine Public Service Co. 'would take it over.' Then Boyce received word from an official of the Paper Company to take orders from Mr. McGowan of the Service Company.

Mooseluk Lake is so inaccessible that an airplane, or a possible twenty mile walk, is necessary to get in and out. The Service Company had arranged with the Paper Company for the use of some of the water. In order to avoid the requirement of the Service Company for a physical examination of employees, it was more convenient for the Service Company to keep Boyce to tend the dam, and to leave him where he was with his supplies and on the pay rolls of the Paper Company, rather than to take him out for examination.

Boyce stayed at the Mooseluk Dam at the request of the defendant Service Company. He was indirectly paid by the Service Company, because the Service Company paid his wages to the Paper Company. He attended to raising and lowering the gates of the dam when and as ordered by the defendant Service Company to govern the water supply in the Aroostook river, from which the Service Company obtained some of its power. He would not have been there had it not been for the request of the Service Company. The Paper Company had no work there for him, and gave him no orders to do any work there. The Great Northern Paper Company exercised no control over his work during that winter. Boyce acquiesced in the new employment and accepted the orders and directions of the defendant Service Company.

Boyce lived in an 'office camp' which had been built and previously used by the Great Northern Paper Company, and he kept in another building, formerly used as a 'cook camp and sleeping camp,' his tools, axes, saws, salt, kerosine and other materials used by him to keep the dam equipment free of ice to permit use. At the time of his injuries he was attempting to shovel the snow from the roof of the camp where his working utensils were stored. During the previous winter, while this camp was occupied and in use by the Paper Company, he had kept the snow from the roof, acting under instructions from the Paper Company. During the winter of 1949-1950 he received no such instructions from anyone. Boyce chose to keep the salt, kerosine and tools in a camp other than where he ate and slept, and without being instructed he shoveled to protect his materials from a possible falling roof as well as to protect himself.

The Industrial Accident Commission found, and it appears clear to the Court that on the evidence it could so find, that the plaintiff petitioner Boyce, in the general employ of the Great Northern Paper Company, was loaned to the defendant Service Company, and submitted to the exclusive direction and control of his special employer, the Service Company. The Commission also found that the work of Boyce, at the time of injury, was entirely for the benefit of the Maine Public Service Company, as the dam would have been entirely closed and no person employed, except for the arrangement between the companies for use of water by the Service Company. The Commission further and also found, that Boyce at the time of his injury was performing an act in furtherance of his special employer's business and that it was incidental to his employment with the Service Company.

The appellant argues that for Boyce to keep a camp roof shoveled to protect his tools, salt and oil, when he had adequate space in the camp where he lived, 'is so ridiculous as to defy belief.' This contention of the Maine Public Service Company, and its insurance carrier the Liberty Mutual Insurance Co., is well answered by these words of the Commission in its findings:

'In arriving at a decision of this matter we have considered the time, place and circumstances under which the accident occurred. We believe the injury followed as a natural incident of the employee's work, which he was employed to do. We believe there was a causal connection between the employment and the injury. It arose in the course of the employment because it came about while the workman was doing the duty he was employed to perform. It arose out of the employment because it is apparent to us, upon consideration of all the circumstances, that there was a causal connection between the conditions under which Mr. Boyce was working and the injury which he received.

This employee was engaged to tend a dam. This was in a remote place. He was the only employee. He had tended the dam previously for another employer. He was the type of man who was conscientious in his work. He was in the habit of looking after the property at the dam. He lived in an office building, and kept the materials which he claimed were necessary to perform his work properly at the dam, in another building. He had never been instructed one way or the other, about keeping the snow shoveled off the roofs of the buildings at the dam, by the Maine Public Service Company. The winter before he had been instructed by the owner of the dam and the buildings to keep the cook camp shoveled off, which he did. This was the work he was doing when injured. To protect the tools and materials needed to keep the gates of the dam free of ice, is the reason Boyce advances for shoveling off the roof where they were kept. He had another reason, which seems legitimate, and that was to save himself from injury, so that the roof would not fall in on him, while he was in the cook camp. Mr. McGowan, the employer's agent, who gave Boyce all of his orders, admitted that every man had different ways of doing his work. We do not believe, in a situation of this kind, that an employee must be expressly directed as to the time, manner and extent of doing each particular task. It is our opinion that an employee, situated as Mr. Boyce was, at the dam, would reasonably be expected to use his own discretion, as to how he would perform his duties. This particularly so, in the absence of any orders, contrawise. Boyce had not been forbidden to put his tools and other materials in the cook camp. He had not been forbidden to shovel off the cook camp. It was his responsibility to keep the dam and its gates free of ice. He was not instructed as to what tools or materials to use, or not to use, in doing his work. The fact that Boyce chose to live in the office building, we believe, does not change the situation, but is another instance of an employee using his discretion on the job.'

The Workmen's Compensation Act, R.S.1944, c. 26, § 1 et seq., arose out of conditions produced by modern industrial development and is based on the philosophy that industrial accidents are inevitable incidents of industry, and that the burden should be borne by industry rather than by the injured employee. Bartley v. Couture, 143 Me. ----, 55 A.2d 438. Under the Act, the theory of common law negligence, as the basis of liability, is discarded and a right to compensation is given for injuries incident to the employment. The compensation law substitutes in place of an action which requires proof of the employer's negligence with common law defenses, the right to compensation based on the fact of employment. This obviates uncertainties, delay, expense and possible hardship. It transfers the expense and uncertainty from the worker to the industry, and tends to improve relations between employers and employees by avoiding troublesome litigation. See Foster v....