Eddy v. Bangor Furniture Co.

• Decision Date: 10 February 1936
• Citation: 183 A. 413
• Parties: EDDY v. BANGOR FURNITURE CO. et al.
• Court: Maine Supreme Court

183 A. 413

EDDY

v. BANGOR FURNITURE CO. et al.

Supreme Judicial Court of Maine.

Feb. 10, 1936.

Appeal from Superior Court, Penobscot County.

Proceeding under the Workmen's Compensation Act by John H. Eddy, claimant, opposed by the Bangor Furniture Company, employer, and the Lumbermen's Mutual Casualty Company, insurer. From a decree of the Superior Court affirming an award granted by the Industrial Accident Commission, the defendants appeal.

Appeal sustained.

Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, and HUDSON, JJ.

James M. Gillin, of Bangor, for appellants.

Frank Fellows, of Bangor, for appellee.

HUDSON, Justice.

Appeal by defendants from a pro forma decree of a justice of the superior court, affirming a decision of the Industrial Accident Commission, by which the plaintiff was awarded compensation.

On February 26, 1934, the Bangor Furniture Company conducted a wholesale and retail furniture business in the city of Bangor. The plaintiff, a carpenter by trade, having a shop at his home in Bangor, in which were installed certain motor driven machines (among which was a buzz saw), was hired by the furniture company to do some carpenter work on the third floor of its four-story building, consisting of "general repairs and changing rooms, making some rooms for showing furniture and putting up shelves and such things to show their furniture." He had nearly completed the construction of a model suite of three inside rooms, comprised of dining room, bedroom, and kitchen, when, on the day mentioned, he was engaged in putting a box casing into a window in one of these rooms. Not having been supplied with sufficient material of the right dimension, he took some 7/8-inch thick pine boards (odds and ends) to his shop (about one mile from the furniture store) to saw them down to a thickness of 3/8 of an inch and a width of 2 1/2 inches. To do this, he used his power driven buzz saw and while so engaged one of the boards caught and dragged his hand onto the saw, cutting off the end of his right thumb. For this injury, he was awarded compensation.

In his petition, Mr. Eddy alleged his employment, the receiving of the injury, and that it arose out of and in the course of his employment. In denial of liability, the defendants alleged "that the injury which the above named employee alleges he sustained an February 26, 1934, was sustained by him in an occupation and a place not covered by, or within the purview of, or assent to the Workmen's Compensation Act [Rev.St.1930, c. 55, § 1 et seq.] filed by said employer, nor by the terms of the policy of industrial accident insurance issued by Lumbermen's Mutual Casualty Company, which was filed by said employer in connection with his assent to the Workmen's Compensation Act of Maine." They also denied that the injury arose out of and in the course of his employment, as well as set up other matter of defense not now necessary to state.

In order for one to recover compensation under this act, it must appear that the employer assented to it, as well as that his injury arose out of and in the course of his employment. R.S.1930, c. 55, § 8. Unless there be such assent, the commission has no jurisdiction. Even though it be assumed, without so holding, that the plaintiff were an employee rather than an independent contractor, and that his injury arose out of and in the course of his employment, he is not entitled to recover compensation without showing that his employers assent "under the Compensation Act for the work" in which he received his injury. Paradis' Case, 127 Me. 252, 142 A. 863, 864. "The assent of the employer is not to be extended beyond what in the usual course of the specified business is necessary, incident, or appurtenant thereIt is incumbent upon him to prove that the injury received was within the scope of acceptance of the employer. John B. Fournier's Case, 120 Me. 191, 113 A. 27. If he comes not within the terms of the assent or of the policy, he may not recover compensation. Simon Michaud's Case, 121 Me. 537, 118 A. 425.

In the case at bar, the assent filed with the commission described the business as "furniture and the installation of House Furn." The insurance policy states, "furniture dealer—wholesale or retail. * * *" In the policy-stated classification of employees, the word "carpenters" does not appear.

The question, then, is whether or not the building of this inside exhibtion suite was "in the usual course" of the defendant's business "necessary, incident, or appurtenant thereto." Paradis' Case, supra. If not, the plaintiff cannot recover; if so, he may by proving it and the additional requirements of the act.

The commission found as a fact that "building in the show rooms for the purposes of exhibiting furniture and thereby increasing sales was an important and usual part of the employer's regular business."

"On appeal respectng administration of the Workmen's Compensation Act, cognizance is taken of questions of law only. * * * Decisions of the Industrial Accident Commission, upon questions of fact, are not subject to review. This has been declared repeatedly." Kilpcnen's Case, 133 Me. 183, 185, 186, 175 A. 314, 315.

The act itself provides:

"His decision, in the absence of fraud, upon all questions of fact shall be final." R.S.1930, c. 55, § 36.

"Whether the finding of fact is supported by legal evidence is the limit of passing in review. Thus is the declaratory fiat of the Legislature. * * * The finding by the commissioner shall not be disturbed if any competent substantive evidence, or reasonable inferences therefrom, warrants it. * * * Should the ultimate conclusion that an injured employee was within the operation of the act be based on probative facts found which fail utterly to establish the ultimate facts found, the finding could be annulled." Noe Gagnon's Case, 125 Me. 16, 17, 19, 130 A. 355.

"There must be some competent evidence to support a decree. It may be slender but it must be evidence, not speculation, surmise, or conjecture. Mailman's Case, 118 Me. 172, 106 A. 606; Butts' Case, supra [125 Me. 245, 132 A. 698]." Mamie Taylor's Case, 127 Me. 207, 208, 142 A. 730, 731.

A decision of the commissioner will not be reversed where the finding is supported by rational and natural inferences from proved facts. Mailman's Case, supra; Patrick v. J. B. Ham Co., 119 Me. 510, 111 A. 912, 13 A.L.R. 427; Hull's Case, 125 Me. 135, 131 A. 391.

A careful examination of the record in this case discloses no evidence whatever that the building of these...