Cook's Case

Decision Date11 January 1923
Citation243 Mass. 572
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

March 23, 1922.

Present: RUGG, C.


Workmen's Compensation Act, Injuries to which act applies. Insurance Agent.

An insurance solicitor and collector, who had a specific route in a city where daily he made collections from policy holders and once each week under instructions from his employer went to its home office in another part of the city to make a report and to pay over his collections, his pay covering the time he spent in going to and from that office, in accordance with his usual custom boarded a street car for the purpose of making his weekly visit to the home office of his employer having with him his collections for that week, and while he was stepping down from the front platform of the car preparatory to leaving the car, his heel slipped and caught on the step and he was dragged on the ground before the car stopped. In a claim made by him under the workmen's compensation act it was held, that it could be found that the accident occurred in the course of and arose out of his employment. RUGG, C.J., CROSBY, & CARROLL, JJ dissenting.

CERTIFICATION to the Superior Court, under the provisions of the workmen's compensation act, of a decision of the Industrial Accident Board that injuries received by Harry Cook, while in the employ of John Hancock Mutual Life Insurance Company, arose out of and in the course of his employment and that he was entitled to compensation therefor.

In the Superior Court, by order of Sanderson, J., a decree was entered in accordance with the decision of the Industrial Accident Board. The insurer appealed.

The case was argued at the bar in March 1922, before Rugg, C.J., Braley, De Courcy, Crosby, & Jenney, JJ., and afterwards was submitted on briefs to all the Justices.

G. Gleason, for the insurer. W. B. Keenan, for the claimant.

DE COURCY, J. The salient facts established by the findings of the board member, and affirmed and adopted by the Industrial Accident Board on review, are these: The employee, Harry A. Cook, was an insurance solicitor and collector in the employ of the subscriber, the John Hancock Mutual Life Insurance Company. For the past eight years he had a specific route in South Boston, where he daily made collections from policy holders. Every Thursday, in accordance with instructions received from his employer, he went to the home office of the company in Boston, made his weekly report on blanks there furnished to him, and paid over his collections. There was uncontradicted testimony that he was paid a salary and commissions, his pay covering the time he spent in going to and from said office. On Thursday, March 24, 1921, in accordance with his usual custom, he boarded a trolley car at South Boston for the purpose of going to the Boston home office of the company, having with him his collections for that week amounting to $146. When the car reached Dewey Square in Boston and was approaching the stopping post, and while he was stepping down from the front platform of the car, his heel slipped and caught on the step. He had hold of the hand rail, and was dragged on the ground about twenty yards before the car stopped. The Industrial Accident Board awarded him compensation for his injuries; and a decree of the Superior Court was entered in accordance therewith. The insurer appealed, contending that the board was not warranted as matter of law in finding that the accident arose out of and in the course of Cook's employment.

Plainly it could be found that the accident occurred in the course of his employment. In going to the Boston office on this Thursday morning Cook was performing a duty for which he was expressly employed and paid. A failure on his part to so report would have been sufficient ground for his discharge from the company's employment. This is not the case of an employee being injured after he has finished his day's work and left the employer's premises. See Bell's Case, 238 Mass. 46 , and cases cited.

The only doubtful question is whether the board were warranted in finding that the injury arose out of Cook's employment. It is often stated as a general rule that an injury cannot be said to arise out of the employment of the injured workman where it occurs upon a street from causes to which all other persons upon the street are likewise exposed. See L.R.A. 1916 A 314 note. But no such formula or general statement can afford a solution without reference to the circumstances of each case. When the public street is the employee's place of work it becomes virtually his workshop, and he may be exposed to the dangers incident to the use of the streets in the same manner that a factory workman is subjected to the perils of the factory. In some instances such exposure to the ordinary "street risks" is inherent in the very nature of the employment; in others the particular work that is being performed by the employee when injured may compel him to face those risks in the course of his contract of employment. When these hazards thus become connected with and incidental to the employment, and are the direct cause of the accident, such accidents arise out of, as well as in the course of the employment. And the fact that others, engaged in their own affairs, are more or less exposed to the same street risks, does not preclude recovery by an employee who is necessarily exposed to them in performing the duties of his employment contract.

There is nothing in the language or purpose of our workmen's compensation act to indicate that the Legislature intended to exclude from its benefits the numerous body of men engaged in out of door employments. Among those generally recognized as coming within the compensation acts are teamsters, drivers and chauffeurs, injured upon the street; the following recent cases being illustrations: Keaney's Case, 232 Mass. 532 . Burton Auto Transfer Co. v. Industrial Accident Commission, 37 Cal.App. 657. Mahowald v. Thompson-Starrett Co. 134 Minn. 113. Miller v. Taylor, 173 App. Div. (N. Y.) 865. Sztorc v. James H. Stansbury, Inc. 189 App. Div. (N. Y.) 388. Martin v. Lovibond & Sons, Ltd. [1914] 2 K.B. 227. 12 Negl. & Comp. Cas. Ann. 174 note. Again the act is often applied to employees whose duty it is to use the street as messengers or delivery men. Globe Indemnity Co. v. Industrial Accident Commission, 36 Cal.App. 280. McDonald v. Great Atlantic & Pacific Tea Co. 95 Conn. 160. Republic Iron & Steel Co. v. Industrial Commission, 302 Ill. 401. Beaudry v. Watkins, 191 Mich. 445. Hansen v. Northwestern Fuel Co. 144 Minn. 105. Employers' Indemnity Corp. v. Kirkpatrick (Tex. Civil App.) 214 S.W. 956. Dennis v. A. J. White & Co.

[1917] A. C. 479. Travelling salesmen, canvassers and collectors also may come within the protection of the statute. Stansberry v. Monitor Stove Co. 150 Minn. 1. Bachman v. Waterman, 68 Ind.App. 580. Clark v. Voorhees, 184 N. Y. Supp. 888. Mulford v. A. S. Pettit & Sons, Inc. 220 N.Y. 540. Schroeder & Daly Co. v. Industrial Commission, 169 Wis. 567. Moran's Case, 234 Mass. 566 . Pierce v. Provident Clothing & Supply Co. Ltd. [1911] 1 K.B. 997. Millar v. Refuge Assurance Co. Ltd. [1912] Sess. Cas. (Sc.) 37. And there are many reported cases where the workman was injured while using the street away from the plant of his employer, but while engaged in the line of his duty. Mueller Construction Co. v. Industrial Board, 283 Ill. 148. Kunze v. Detroit Shade Tree Co. 192 Mich. 435. Zabriskie v. Erie Railroad, 86 N.J.L. 266. Milwaukee v. Althoff, 156 Wis. 68.

It is not material whether such injured workman is using the street on foot, or in a public or private vehicle, provided he does not thereby subject himself to some added and unauthorized peril. As was said by Lord Finlay, L. C., in Dennis v. A. J. White &amp Co. supra, "If a servant in the course of his master's business has to pass along the public street, whether it be on foot or on a bicycle, or on an omnibus or car, and he sustains an accident by reason of the risks incidental to the streets, the accident arises out of as well as in the course of his employment." It frequently happens that the employer furnishes transportation for the workmen to and from their work, as an incident of the employment; and an injury suffered by the employee while so travelling is generally held to arise out of the employment. Donovan's Case, 217 Mass. 76 . Littler v. George A. Fuller Co. 223 N.Y. 369. Harrison v. Central Construction Corp. 135 Md. 170. Hackley-Phelps-Bonnell Co. v. Industrial Commission, 165 Wis. 586. See other cases collected in note, 10 A.L.R. 169. See also Latter's Case, 238 Mass. 326 . Others, especially travelling salesmen, are often obliged to travel in public conveyances in the course of their employment. The protection of the compensation act is not necessarily suspended while such an employee is a passenger in the car or ship of a common carrier. Kinsman v. Hartford Courant Co. 94 Conn. 156. Foley v. Home Rubber Co. 89 N.J.L. 474. Central Construction Corp. v. Harrison, 137 Md. 256. If the carrier is under legal liability for causing the injury, the injured employee may at his option proceed against the carrier to recover damages, or against the insurer for compensation. G.L.c. 152, Section 15. In view of the foregoing principles and authorities, it seems to us that the Industrial Accident Board were warranted in finding that the injury suffered by Cook arose out of his employment. They would unquestionably be justified in so finding if Cook had been struck by an automobile while he was necessarily crossing a street, on his prescribed route in South Boston, in the perform ance of his duty of soliciting...

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