In re Dillon

Decision Date29 March 1949
Citation85 N.E.2d 69,324 Mass. 102
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Appeal from Superior Court, Suffolk County; Broadhurst, Justice.

Proceeding under Workmen's Compensation Law by David Dillion for compensation for the loss of his only good eye while in the employ of the Boston Tidewater Terminal, Inc. From an order recommitting the case to the Industrial Accident Board and from a decree denying a motion by insurer to set aside the decision made by the reviewing board upon recommittal, and directing payment of compensation, costs and a sum to relieve claimant of expenses of certification, the insurer appeals.

Order in accordance with opinion.


J. H. Morris, of Boston for employee.

E. R. Langenbach, of Boston, for insurer.

QUA, Chief Justice.

On November 17, 1942, the employee, who had previously lost the sight of one eye, lost the sight of the other eye and became totally and permanently blind as the result of a blow struck by a fellow workman, named Kenney, while the employee, Dillon, was acting as ‘gang leader’ for Boston Tidewater Terminal, Inc., and was in charge of a gang of eight men engaged in unloading a car of cement in bags on a wharf at the army base in Boston.

The evidence received by the single member of the Industrial Accident Board was in part conflicting and was largely repetitive as the members of the gang and others present told what they observed. We state only the evidence most favorable to Dillon which the board could have believed. Dillon ‘made his gang work hard.’ All the men more or less were a little upset; they seemed to think they were doing more work than they should be doing.' ‘It seemed * * * that they were getting more cars than they should be getting.’ One witness attributed the trouble to the fact that they were working too hard. He believed ‘Dillon had the name of doing half again as much work as any of the other gangs did.’ He was ‘hard to satisfy.’ Kenney and Dillon had not been ‘getting along very well.’ ‘Dillon had told Kenney he was not satisfied with Kenney's work.’ On the occasion of the assault Kenney ‘could see from Dillon's actions that he [Kenney] wasn't doing enough work to suit’ Dillon. At that time there was talk from which it could be found that Kenney was accusing Dillon of favoritism. On that day Kenney expressed a desire to get out of the gang, and when the foreman came along Dillon told him that he wanted Kenney taken out because he had been ‘impudent.’ Both Kenney and Dillon ‘seemed pretty angry.’ As soon as the foreman went away Kenney ‘rushed’ out of the car and stepped on top of a pallette which Dillon was about to raise and to put on the trailer to receive the next lot of bags. Dillon told him to get off. A blow or blows followed. The evidence was conflicting as to whether Dillon first struck Kenney and then Kenney struck Dillon in the eye, or whether Kenney's blow was the first and only one.

The decision of the single member of the board consisted of a brief summary of the evidence, three general findings, (1) that Dillon was injured in the course of his employment, (2) that the injury did not arise out of his employment, and (3) that it was caused by his serious and willful misconduct, and the granting of all of the insurer's requests for rulings and the refusal of all of Dillon's requests. This decision contained no subsidiary findings of fact. The case was one in which the result might have depended upon whether one view or another was taken of the particular facts. The decision of the single member seems to us not to have complied with the requirement frequently stated in the cases that a background of fact must be supplied in sufficient detail to enable the court to determine whether correct rules of law have been applied to the facts found. Di Clavio's Case, 293 Mass. 259, 261-262, 199 N.E. 732;Belezarian's Case, 307 Mass. 557, 560, 31 N.E.2d 4;Roney's Case, 316 Mass. 732, 736, 56 N.E.2d 859. The reviewing board, apparently taking this view of the single member's decision, without hearing further evidence, affirmed the decision ‘in result’ but found ‘specifically’ that Dillon himself ‘struck the first blow and started the fight in the course of which’ Kenney struck Dillon in the eye. The board ‘therefore’ found that Dillon ‘engaged in a mutual assault which he himself provoked’ and ‘therefore’ ruled that his injury did not arise out of his employment. The board, as we interpret its decision, made no finding as to serious and wilful misconduct and did not adopt the finding of the single member on that point. We construe the action of the board as a ruling of law that, if Dillon ‘struck the first blow’ and so ‘started the fight,’ his injury could not arise out of his employment. The board's decision was placed solely upon this ground.

In our opinion a positive ruling of law to this effect could not properly be made in a case like this. The striking of the first blow is not the sole and ultimate test as to whether the injury arose out of the employment. We think it is possible for an injury to arise out of the employment in the broad sense of the workmen's compensation law (G.L. [Ter.Ed.] c. 152, § 26, as most recently amended by St.1945, c. 623, § 1), even though the injured employee struck the first blow. We must constantly remind ourselves that in compensation cases fault is not a determining factor, whether it be that of the employee alone or that of the employee contributing with the fault of others, unless it amounts to the ‘serious and wilful misconduct’ of the employee which by § 27, as appearing in St.1935, c. 331, bars all relief to him. Apart from serious and wilful misconduct, the question is whether the injury occurred in the line of consequences resulting from the circumstances and conditions of the employment, and not who was to blame for it. Our own decisions have long since passed the point where it could be contended that an intentional assault upon the employee by a third person necessarily broke the causal relation between the employment and the injury. In re McNicol, 215 Mass. 497, 102 N.E. 697, L.R.A.1916A, 306; Reithel's Case, 222 Mass. 163, 109 N.E. 951, L.R.A.1916A, 304; Harbroe's Case, 223 Mass. 139, 111 N.E. 709, L.R.A.1916D, 933;Cranney's Case, 232 Mass. 149, 122 N.E. 266, 15 A.L.R. 584.Zygmuntowicz v. American Steel & Wire Co., 240 Mass. 421, 424, 134 N.E. 385;Broadbent's Case, 240 Mass. 449, 134 N.E. 632;McLean's Case, 323 Mass. 35, 37-39, 80 N.E.2d 40. The decisions in Moore's Case, 225 Mass. 258, 114 N.E. 204;Gavros' Case, 240 Mass. 399, 134 N.E. 269, 21 A.L.R. 755, AND Lee's Case, 240 Mass. 473, 134 N.E. 268, 20 A.L.R. 870, rest simply upon the ground that in those instances the causal relation did not appear. Whether each of those cases would be decided the same way today need not be considered. See Zarba v. Lane, 322 Mass. 132, 134, note, 76 N.E.2d 318. So even where the employee himself strikes the first blow, that fact does not break the connection between the employment and the injury, if it can be seen that the whole affair had its origin in the nature and conditions of the employment, so that the employment bore to it the relation of cause to effect. In the present case there was no evidence whatever of any friction between Dillon and Kenney except in connection with their work. It could reasonably be found that a smoldering enmity was engendered between these men by the carrying on of the employer's work, the control which Dillon as gang leader had over Kenney, and the manner in which he exercised that control in his employer's interest, and it could even be found that at the moment of the trouble Kenney was intentionally interfering with Dillon's work by standing upon the ‘pallette’ which it was Dillon's duty to raise. In such a case, when the accumulated strain finally breaks down resistance, it seems a narrow treatment of the problem to determine the granting or denying of compensation by the more or less fortuitous circumstance of who aimed the first blow. On all the evidence we think findings were warranted that both the quarrel and the ensuing injury arose out of the employment.

No case quite like this seems to have come before this court. Numerous cases more or less similar have arisen in other jurisdictions. A great many of them are collected in a comprehensive article by Samuel B. Horovitz in 41 Ill.L.Rev. 311. There is much conflict among them, even sometimes, as it seems to us, among those in the same jurisdiction. We agree, however, with the statement of Clark, J., in Kable v. United States, 2 Cir., 169 F.2d 90, 93-94, that in compensation cases ‘recovery is increasingly allowed for injuries sustaining as a result of fighting without making too fine a point as to who was the aggressor.'1

As this point it is appropriate to say that in our opinion the employee is neither aided nor harmed by the provision added to G.L. (Ter.Ed.) c. 152, § 26, by St.1937, c. 370, § 1, which so far as it might be thought material reads, ‘if an employee * * * is injured by reason of the physical activities of fellow employees in which he does not participate, whether or not such activities are associated with the employment, such injury shall be conclusively presumed to have arisen out of the employment.’ This provisions creates a presumption in favor of the employee in the circumstances stated. In this case, however, it cannot be said that Dillon did not ‘participate,’ and so no presumption arises in his favor. On the other hand, it seems clear that the 1937 amendment was designed to confer larger rights upon employees than they had before and does not by implication limit the sweep of the words ‘arising out of * * * his employment’ as used in the first sentence of the section.

Since in our opinion the reviewing board erroneously ruled that the striking of the first blow by Dillon was as...

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