in re Donovan

• Citation: 217 Mass. 76,104 N.E. 431
• Parties: In re DONOVAN; In re McGREEVEY; In re ROYAL INDEMNITY CO.
• Decision Date: 27 February 1914
• Court: United States State Supreme Judicial Court of Massachusetts

217 Mass. 76

104 N.E. 431

In re DONOVAN; In re McGREEVEY; In re ROYAL INDEMNITY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1914

COUNSEL

Arnold Batchelder & Luther, of Boston, for appellant.

Whipple Sears & Ogden, James M. Hoy, and Edward O. proctor, all of Boston, for appellee.

OPINION

SHELDON J.

The contest here is between Donovan, an employé of one McGreevey and an insurance company which had insured McGreevey under the provisions of St. 1911, c. 751, part 5, § 3, as amended by St. 1912, c. 571, § 17. The point in dispute is whether Donovan's injury arose out of and in the course of his employment, within the meaning of part 2, § 1, of the act of 1911 above cited. See McNicols's Case, 215 Mass. 497, 102 N.E. 697. This must be decided upon the facts found by the Industrial Accident Board in its review of the report of the arbitration committee. St. 1911, c. 751, part 3, §§ 5, 10, 16, as amended by St. 1912, c. 571, §§ 10, 12-15.

Donovan was employed by McGreevey in cleaning out catch-basins at a place about two miles from his home. It had been and was his custom, in common with other employés and with the knowledge and consent of his employer, to ride to and from the vicinity of the catch-basins in a wagon furnished by his employer, the wagon meeting the employés on the street and the employer being notified if any of the employés failed to report for work at the beginning of the day. The wagon was at the service of the employés at the end of the day, and they might ride in it back to the employer's barn if they wished. Donovan was injured while so riding in this wagon at the end of his day's work, and the board has found that his transportation on the wagon was 'incidental to his employment,' and 'therefore' arose 'out of and in the course of said employment.' The language of this last finding is a little obscure; but we treat it, as both counsel and also the superior court have treated it, as being an inference that Donovan's injury arose out of and in the course of his employment, drawn from the other facts stated, including the fact that the transportation was 'incidental to his employment.' The question to be decided is therefore whether this inference could be drawn from those facts; for the facts themselves now cannot be inquired into. St. 1912, c. 571, § 14.

There have been several decisions in England as to when and how far an employé can be said to have been in the employ of his master, while traveling to and from his work in a vehicle or means of conveyance provided by the latter, and how far injuries received in such a conveyance can be said to have arisen out of and in the course of the employment. Many of these decisions have been cited and discussed by Professor Bohlen in 25 Harvard Law Review, 401 et seq. From his discussion and the cases referred to by him, and from the later decisions of the English courts, the rule has been established, as we consider in accordance with sound reason, that the employer's liability in such cases depends upon whether the conveyance has been provided by him, after the real beginning of the employment, in compliance with one of the implied or express terms of the contract of employment, for the mere use of the employés, and is one which the employés are required, or as a matter of right are permitted, to use by virtue of that contract. See Davies v. Rhymney Iron Co., 16 Times Law Rep. 329; Holmes v. Great Northern Ry., [1900] 2 Q. B. 409; Whitbread v. Arnold, 99 L. T. 105; Cremins v. Gest, Keen & Nettlefolds, [1908] 1 K. B. 469; Gane v. Norton Hill Colliery Co., [1909] 2 K. B. 439; Hoskins v. J. Lancaster, 3 Butterworth, Workmen's Compensation Cases, 476; Parker v. Pout, 105 L. T. 493; Walters v. Staveley Coal & Iron Co., 105 L. T. 119, and 4 Butterworth, Workmen's Compensation Cases, 89 and 303; Greene v. Shaw, [1912] 2 Ir. 430, and 5 Butterworth, Workmen's Compensation Cases, 530; Mole v. Wadworth, 6 Butterworth, Workmen's Compensation Cases, 128; Edwards...