in re Cheevers

• Decision Date: 24 November 1914
• Citation: 106 N.E. 861,219 Mass. 244
• Parties: In re CHEEVERS. In re FIDELITY & DEPOSIT CO. OF MARYLAND.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

219 Mass. 244

106 N.E. 861

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

Supreme Judicial Court of Massachusetts, Berkshire.

November 24, 1914

COUNSEL

P. J Moore, of Pittsfield, for claimant.

A. L Richards, of Boston, for insurer.

OPINION

LORING J.

Cheevers contended that he was an employé of one Pierce and that he was entitled to compensation for an injury suffered by him while in that employ.

The facts found by the Committee of Arbitration were in substance as follows:

Cheevers conducted a teaming business in the city of Pittsfield 'having three or four separate horses and teams.' He employed several men to work with these horses and teams beside working with them himself. He did work for various persons in Pittsfield and that vicinity.

Pierce owned a coal yard in Pittsfield, where he did a retail coal business. At different times in 1911, 1912, and 1913, Pierce employed Cheevers to deliver his (Pierce's) coal with his (Cheevers') horse and team. The course of business was for Cheevers to come to the yard with his horse and team, put the coal into bags and lift them into his cart, or fill his cart in bulk from the chute. Cheevers 'usually' was helped in doing this by a laborer employed by Pierce. Pierce gave Cheevers written slips with the names and addresses of the purchasers of the coal, and with directions 'to assist in carrying and putting the coal into the houses'; and the man who helped Cheevers in loading the coal at the yard went with him to help in putting the coal into the houses. This helper was paid by Pierce. Cheevers was paid five dollars a day for himself and his team. Pierce 'hired Cheevers for this general work for no fixed duration of time and for no specified job.' When Pierce wanted Cheevers he would say to him,' 'I want you to come up and help me,' and when asked by the Committee of Arbitration whether Cheevers would have a right to send another man, Pierce replied, 'No, I wanted Cheevers, because he knew how to handle coal.'

As we construe the record, the accident happened on February 25, 1913, though in one place in the record it is stated that it happened on February 28, 1913. On this day Cheevers fell from his cart while delivering coal. One of Cheevers' men tried to do the work for Pierce on the following day in Cheevers' place, but was not able to do it to Pierce's satisfaction; and Cheevers' horse and team and man were not employed further. The last period Cheevers worked for Pierce (that is to say, the period here in question) was on February 7, 8, 10, 11, 12, 13, 15, and 25. The last period before that was on February 1, 2, 5, 6, and 7, 1912. In addition the Arbitration Committee made this further finding, to wit:

'Cheevers worked the same as any other of Pierce's regular men, under his orders, loading, driving, and putting in coal.'

The committee decided 'that in doing this work Cheevers was so under the direction and control of Pierce that the relation between them was that of master and servant,' and made an award in his favor.

The Industrial Accident Board, on review of this decision of the Committee of Arbitration, made the following decision:

'The board, upon the facts found by the committee, believes that an error of law was made in the conclusion of the committee and accordingly reverses its decision. This reversal is made in accordance with the decisions in Hunt v. N. Y., N.H. & H. R. R., 212 Mass. 102, 107 [98 N.E. 787, 40 L. R. A. (N. S.) 778]; Hussey v. Franey, 205 Mass. 413 [91 N.E. 391, 137 Am. St. Rep. 460]; Shepard v. Jacobs, 204 Mass. 110 [90 N.E. 392, 26 L. R. A. (N. S.) 442, 134 Am. St. Rep. 648]; Delory v. Blodgett, 185 Mass. 126 [60 N.E. 1078, 64 L. R. A. 114, 102 Am. St. Rep. 328]; Driscoll v. Towle, 181 Mass. 416, 418, 419 . Cheevers, the injured man in this case, was in the general business of teaming, as a proprietor on his own account, owning horses and wagons and employing men to drive and work with them. According to the above decisions, and

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