D'Angeli's Case, In re

• Decision Date: 02 March 1976
• Citation: 343 N.E.2d 368,369 Mass. 812
• Parties: In re Elidio D'ANGELI'S CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 368

343 N.E.2d 368

369 Mass. 812

In re Elidio D'ANGELI'S CASE.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 8, 1976.

Decided March 2, 1976.

Usher A. Moren, Cambridge, for employee.

James D. Casey, Boston, for insurer.

Before REARDON, QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

REARDON, Justice.

This case is here for further appellate review following a rescript opinion in the APPEALS COURT (--- MASS.APP. ---, 330 N.E.2D 499 (1975)^A) which reversed the decision of the Superior Court judge. An appeal had been taken from an order of the Superior Court judge which decreed that the employee was entitled to workmen's compensation benefits with interest thereon and various costs for total incapacity from work 'as a result of a personal injury sustained on November 8, 1966 arising out of and in the course of his employment by Cummins Diesel Sales Corporation' (Cummins).

The facts are as follows. The employee had worked as a diesel mechanic for Cummins and its corporate predecessor since 1944. He worked at Cummins's headquarters in Allston and, in addition, did work outside his employer's premises which required travel. On November 8, 1966, he was sent by his employer to the Charles River Breeding Laboratory in North Wilmington in order to repair an engine at that location. While returning therefrom he traveled on Route 93 south, the most direct route from the laboratory to the Cummins headquarters in Allston. He was driving his own motor vehicle, as his employer had authorized, for which on such occasions he was reimbursed his mileage expense. Route 93 is a limited access highway with three lanes going north and three lanes going south, divided by a grass median strip, and was at the time of the accident to the employee a high speed road with a sixty miles an hour speed limit. Signs appeared at various locations on Route 93 and on ramps leading to it reading: 'Pedestrians, bicycles, horses prohibited.' There was a breakdown lane on the right of each side of the highway.

As the employee was proceeding south he noticed an obstruction on the roadway which consisted of a tightly wound coil of heavy rope about three feet in diameter and six inches high which he 'believed was dangerous.' He pulled into the breakdown lane and proceeded on foot onto the traveled lane and removed the obstruction. Upon his attempt to return to his motor vehicle he was struck by an oncoming car proceeding at fifty to fifty-five miles an hour and sustained severe injuries. He has been totally disabled since the date of the accident and will not again be able to do any heavy lifting or work involving physical exertion to which he was accustomed in his trade as a diesel mechanic.

The single member of the Industrial Accident Board found that he did not sustain a personal injury arising out of and in the course of his employment and that his act in attempting to retrieve the rope 'was a serious and substantial deviation from his employment which, in no way, would have inured to the benefit of his employer.' He further found that the employee was injured by reason of his 'serious and wilful misconduct within the meaning of Section 27 of Chapter 152 of the Workmen's Compensation Act and he is, therefore, not entitled to receive workmen's compensation.' The single member dismissed his claim for compensation. However, the reviewing board reversed the decision of the single member on the basis that the facts referred to above indicated that 'on November 8, 1966, the employee was in the course of his employment returning to his employer's plant and on Route 93 in Reading, Massachusetts, observed a coil of wire or rope tied and (lying) in the middle of the road presenting a dangerous condition to traffic. In this emergency and dangerous situation the employee stopped his car in the breakdown lane and went onto Route 93 to remove this coil of wire or rope and in doing so was struck by an oncoming car. The Reviewing Board (found) that this injury arose out of and in the course of his employment.' It further found that 'although the employee used poor judgment in retrospect in going onto Route 93 . . . it did not amount to serious and wilful misconduct.' The reviewing board ordered that the employee be paid total incapacity compensation, together with various costs, and this was sustained by the order of the Superior Court.

We review the record in the light of the standards set down in Lambert's Case, 364 Mass. 831, 832, 304 N.E.2d 428 (1973). 'The board is free to reverse the determination of the single member if the reversal is supported by any substantial evidence, and its decision is final and supersedes the finding of the single member. . . . The decision of the board is to stand unless it is unsupported by the evidence, or tainted by error of law.' See Ritchie's Case, 351 Mass. 495, 496, 222 N.E.2d 687 (1966). This is so even if a different finding could have been made by the board. Brigham's Case,348 Mass. 140, 141, 202 N.E.2d 597 (1964). Hartman's Case, 336 Mass. 508, 511, 146 N.E.2d 509 (1957), and cases cited. See Bator's Case, 338 Mass. 104, 105, 153 N.E.2d 765 (1958). We have had occasion to note in addition that '(t)his court will sustain the general finding of the reviewing board if possible.' Demetre's Case, 322 Mass. 95, 98, 76 N.E.2d 140, 142 (1947), and cases cited.

We thus arrive at the principal question presented by this appeal: As matter of law did the employee suffer an injury 'arising out of and in the course of his employment' (G.L. c. 152, § 26)? The insurer argues that it would be unwise for us to extend the term 'course of employment' to embrace the facts of this case, and refers in particular to Burgess's Case, 331 Mass. 90, 117 N.E.2d 148 (1954), as an instance where compensation was denied an employee allegedly far more deserving of recovery. In that case the employee was a salesman visiting a bank which was in the process of being robbed and was injured when he took after the robber who had shot a bank employee during the commission of the crime. The court there held that the employee had departed from the duties of his employment. In so far as that case might be said to govern the application of the law to the facts in this case, we do not choose to follow it. In the first place, as was said in Bator's Case, supra 338 Mass. at 106, 153 N.E.2d at 767: 'This court has never adopted the narrow view that an employee must be engaged in the actual performance of his duties at the moment of injury in order to recover compensation under our statute. All that is required is that his activity be incidental to and not inconsistent with his employment.' We have recently, in Peters's Case, 362 Mass. 888, 291 N.E.2d 158 (1972), upheld the reviewing board's award of compensation to an employee who ran in search of the police when a fellow employee was being assaulted; and even more recently, in Canavan's Case, 364 Mass. 762, 308 N.E.2d 534 (1974), we held that it would be proper for the board to award compensation to a licensed practical nurse who, while off duty, suffered injury when she proceeded to secure assistance for two...