In re Comerford
| Decision Date | 10 July 1916 |
| Citation | 224 Mass. 571,113 N.E. 460 |
| Parties | In re COMERFORD. In re CONTRACTORS' MUT. LIABILITY INS. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court; Suffolk County.
Proceeding under the Workmen's Compensation Act by Patrick Comerford, employé, opposed by the McDonald & Joslin Company, employer, and the Contractor's Mutual Liability Insurance Company, insurer. From a decree of the superior court, approving finding and decision of Industrial Accident Board for the employé, the insurer appeals. Recommitted, to allow further evidence.
Norman F. Hesseltine and J. Frank Scannell, both of Boston, for appellant.
E. M. Shanley, of Boston, for appellee.
The evidence shows that the employé, Comerford, was and had been for three years before the accident, in the employment of one Connors as a teamster; that the subscribers, McDonald & Joslin Company speaking through a son of Joslin, the evening before the accident told Connors that they ‘wanted a teamster to take some concrete window sills, wheelbarrows, picks and shovels out to Mattapan the next morning’; that these things to be taken were in the locker or inclosure at the corner of Langdon and Roswell streets; that the ‘locker’ is just a storehouse where odds and ends of tools and staging are kept; that the subscribers' business was contracting, building and construction work; that at the time of the accident the subscribers were constructing a small brick garage in Mattapan; that these reinforced concrete window sills were wanted for the garage then being built; that on the morning of the accident the employé drove into the ‘locker’ or inclosure, as directed by the son who had given the order to Connors, and backed up near to a pile of stone; that the son told the employé that ‘he wanted to get four of these sills on the team’; that there were some broken ones on the top of the pile, and they moved these off and laid them down on one side; that they carried two of the sills to the team, and were carrying the third, when the employé slipped and the sill fell on him.
These facts do not warrant the findings of the Industrial Accident Board that:
‘During all the time that Comerford was on the premises, after he had driven the team into the ‘locker,’ he was engaged in the usual course of the business of the subscribers and was the servant of such subscribers during his employment on said premises.'
Nor do they warrant the further and more specific finding that:
‘* * * Comerford, in the performance of the work of lifting and moving sills, was under the control and direction of the subscribers, and was the servant and employé of the subscribers in the performance of this work, which was in the usual course of their business as building contractors.’
Upon the facts in this case the employé can be found to be the servant of the general employer, Connors, because of his duty to care for and to manage the...
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