In re Burns

• Citation: 218 Mass. 8,105 N.E. 601
• Parties: In re BURNS. In re FIDELITY & DEPOSIT CO. OF MARYLAND.
• Decision Date: 21 May 1914
• Court: United States State Supreme Judicial Court of Massachusetts

218 Mass. 8

105 N.E. 601

In re BURNS. In re FIDELITY & DEPOSIT CO. OF MARYLAND.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1914.

Appeal from Superior Court, Suffolk County.

Petition under the Workmen's Compensation Act by Bridget Burns, widow and executrix of John J. Burns, deceased employé, against William Colton, employer, and the Fidelity & Deposit Company of Maryland, insurer. Decree in the superior court for petitioner, in accordance with the decision of the Industrial Accident Board, and the insurer appeals. Affirmed.

John E. Reagan, for petitioner.

Albin L. Richards, of Boston, for insurer.

John A. McCaig, of Boston, for employer.

SHELDON, J.

[1][2] 1. Under the provisions of St. 1911, c. 751, pt. [218 Mass. 10]2, § 3, if the injury to the petitioner's husband was due to the serious and willful misconduct of his employer, the compensation must be doubled. She contends that this was the case. The Industrial Accident Board has found against her contention, and this finding is final, if there was any evidence to support it. Herrick's Case, 104 N. E. 432, and cases there cited. The question is not whether it could have been found that the injury was due to the serious and willful misconduct of the employer, but whether we can say that the finding made was wholly unwarranted. Serious and willful misconduct is much more than mere negligence, or even than gross or culpable negligence. It involves conduct of a quasi criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury or with a wanton and reckless disregard of its probable consequences. Banks v. Braman, 188 Mass. 367, 74 N. E. 594, and 192 Mass. 162, note; Warren v. Pazolt, 203 Mass. 328, 347, 89 N. E. 381;Yancey v. Boston Elev. Ry., 205 Mass. 162, 171, 91 N. E. 202,26 L. R. A. (N. S.) 1217, 137 Am. St. Rep. 431;Willis v. Boston & Nor. St. Ry., 208 Mass. 589, 94 N. E. 1041;Sharkey v. Skelton, 83 Conn. 503, 507;Louisville, New Albany & Chicago R. R. v. Bryan, 107 Ind. 51, 53, 7 N. E. 807; Johnson v. Marshall Sons & Co., [1906] A. C. 409, 411; Lewis v. Great Northern Ry., 3 Q. B. D. 195, 206, 213. The finding of the Industrial Accident Board as to this must be sustained, and it must be held that the petitioner is not entitled to double compensation.

[3][4] 2. The insurer contends that no compensation should be allowed for the death of the employé. This is on the ground that the proximate cause of the death was not the injury, but was the septicaemia or blood poisoning which resulted from the bed sore that came in consequence of his confinement to bed. But this contention cannot be maintained. He had sustained a mortal injury, one from which death must sooner or later ensue, a fracture of the spine, with a severance of the spinal cord, which caused not only a complete paralysis of the lower limbs, but a loss of power and sensation below the seat of the injury. He was taken to a hospital, and afterwards was under proper medical care until his death. He was obliged to lie in bed in one position; and by reason of this an extensive bed sore was developed, and this extended and grew worse until it brought about the blood poisoning which was the immediate cause of his death. There was testimony from a physician that the death resulted from the injury. The finding of the industrial Accident Board was that a chain of causation, not broken by any new intervening act, connected the injury with the death, and therefore that the death resulted from the injury, the septicaemia caused by the bed sore being a contributory cause.

It is manifest that there was evidence in support of the finding, and it must stand unless it was wrong as a matter of law. But that is not so. As was said in McDonald v. Snelling, 14 Allen, 290, 296 (92 Am. Dec. 768):

‘The mere circumstance that there have intervened between the wrongful cause and the injurious consequence acts produced by the volition of animals or of human beings does not necessarily make the result so remote that no action can be maintained. The test is to be found, not in the number of intervening events or agents, but in their character and in the natural and probable connection between the wrong done and the injurious consequence. So long as it affirmatively appears that the mischief is attributable to the negligence as a result which might reasonably have been foreseen as probable, the legal liability continues.’

Nor would it have been material, if that had been found to be the fact that the bed sore was due to the mistake or the negligence of the physicians acting honestly. Gray v. Boston Elev. Ry., 215 Mass. 143, 102 N. E. 71; Sauter v. N. Y. C. & H. R. R. R., 6 Hun (N. Y.) 446. In a case decided by the Court of Appeal under the English Workmen's Compensation Act, it appeared that a workman who had met with an accident, though he had recovered from the immediate effects of his injury, had never regained his normal health, but continued to be weak and debilitated. Thirteen months after the accident, he died from bronchitis, following an attack of influenza. It was by reason of the weakened condition to which the accident had reduced him that the bronchitis proved fatal. It was held that the death resulted from the injury. Thoburn v. Bedlington Coal Co., 5 Butterworth's Workmen's Compensation Cases, 128. The same principle was upheld in Dumham v. Clare, [1902] 2 K. B. 292, in which the death for which compensation was allowed was brought on by a supervening attack of erysipelas but was found to have been the result of the preceding injury. See, also, Ystradowen Colliery v. Griffiths, [1909] 2 K. B. 533; Meyer v. Butterbrodt, 146 Ill. 131, 34 N. E. 152. Such cases as Daniels v. N. Y., N. H. & H. R. R., 183 Mass. 393, 67 N. E. 424,62 L. R. A. 751,Snow v. N. Y., N. H. & H. R. R., 185 Mass. 321, 70 N. E. 205,Fairfield v. Salem, 213 Mass. 296, 100 N. E. 542, and Scheffer v. R. R., 105 U. S. 249, 26 L. Ed. 1070, are not applicable here, upon the findings of the Industrial Accident Board.

It follows that compensation rightly was allowed for the death.

[5] 3. Compensation also has been allowed under St. 1911, c. 751, pt. 2, § 11 (amended by St. 1913, c. 696), for the permanent incapacity of both legs. The insurer contends...