In re Cox

• Decision Date: 28 November 1916
• Parties: In re COX.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

225 Mass. 220

114 N.E. 281

In re COX.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 28, 1916.

Appeal from Superior Court, Suffolk County.

Proceedings under the Workmen's Compensation Act. From a decree of the superior court, the insurer appeals. Affirmed.

Sawyer, Hardy, Stone & Morrison, of Boston(E. C. Stone, of Boston, of counsel), for appellant.

RUGG, C. J.

This is a proceeding under the Workmen's Compensation Act. The first question is whether the finding of the arbitration committee, affirmed by the Industrial Accident Board, that Wardwell D. Cox received an injury in the course of and arising out of his employment, finds any support in the evidence. It cannot be set aside if there is any evidence upon which it can rest. Pigeon's Case, 216 Mass. 51, 102 N. E. 932. The evidence was that Cox had been employed to work in a shoe store in Boston. He was notified to report for work on September 13th, and the injury was received on September 17th. His position at the moment of his injury, although not quite clear, was the equivalent in right of that of manager. He was to be manager of the store, but his predecessor was still in the store and was to conclude his service the next day. He was getting through when Cox came to work, but at Cox's request was relieving him of the duty of making out the daily report at the time of the injury. Cox was working overtime taking account of stock. He was injured by falling down stairs at eight o'clock in the evening while answering a telephone call from his daughter, who asked when he was coming home. The evidence would warrant the conclusion that it was the duty of Cox to answer telephone calls even outside the usual business hours. If this was his duty, then the circumstance that the call happened to be one which interested him personally would not prevent his conduct in attending to the call from being service arising out of and in the course of his employment. There is nothing to indicate that the time spent at the telephone was longer than necessary to answer a call. The finding in this respect cannot be said to be without substantial foundation in the evidence.

The employer and subscriber was the Framingham Shoe Company, a manufacturer of shoes apparently upon a somewhat extensive scale, with a factory at Framingham. That corporation and its manager operate from seventy-five to one hundred shoe stores, all those in this commonwealth being owned and operated by the corporation. It was insured in accordance with the Workmen's Compensation Act by a policy which, under the heading ‘Classification. Schedule of Business Operations,’ and subheading, ‘Location of each Building, Factory, Shop, Yard, or Place where the Trade, Business, Profession or Occupation will be conducted,’ contained these words: ‘Framingham, Mass.’ Under the further subheading, ‘Kind of Trade, Business, Profession or Occupation (Manual Classification),’ were these words: ‘Boot & Shoe Mfrs. Military Goods Mfrs. (no metal stamping), Drivers and Drivers' Helpers, Rates 30c and 80c respectively with 4 per cent. specific discount.’ The contract of insurance was ‘to pay the compensation and to furnish the medical and hospital services and medicines provided for by The Workmen's Compensation Act, viz.: part 2 of chapter 751 of the Massachusetts Acts and Resolves of 1911, and amendments and additions thereto, to any person or persons to whom such compensation or services shall become due, and to indemnify the insured under provisions of section 22 of part 4 of said act, for or on account of personal injuries, including death resulting at any time therefrom, received or suffered by any employee or employees of the insured, or of a contractor or subcontractor as defined by section 17 of part 3 of said act, within the policy term, subject, however, to the agreements on the following pages and conditions herein stated.’ Among the ‘agreements' was one giving the insurer ample power to examine the buildings and plants, to inspect the books of the insured for information as to wages of its employees, and to require written statements as to such wages.

The question is whether, under these circumstances the business of conducting the retail shoe store in Boston is under the Workmen's Compensation Act. We are of opinion that it is. The Workmen's Compensation Act does not permit an employer to become a subscriber as to one part of its business and to remain a nonsubscriber as to the rest of a business which is in substance and effect conducted as one business. It has been decided that insurance as to one class of employees of a farmer, engaged as drivers and helpers in the distribution and marketing of his produce, does not require insurance of farm laborers who are expressly exempted from the act. Keaney's Case, 217 Mass. 5, 104 N. E. 438. We do not include within the scope of this decision transportation companies carrying on interstate commerce and in this regard wholly sudject to the acts of Congress (Corbett v. Boston & Maine R. R., 219 Mass. 351, 107 N. E. 60;Northern Pacific Ry. v. Washington, 222 U. S. 370, 32 Sup. Ct. 160, 56 L. Ed. 237), but subject to state law as to intrastate business, nor those conducting two wholly different and distinct kinds of business quite disconnected with each other in place, nature and management. Such cases, if and when they arise, are to be considered on their own merits. We are dealing here with a case where one employer is...