In re Employers' Liab. Assur. Corp.

• Decision Date: 15 September 1913
• Citation: 215 Mass. 497,102 N.E. 697
• Parties: In re EMPLOYERS' LIABILITY ASSUR. CORPORATION, Limited; In re McNICOL et al.; In re PATTERSON, WILDE & CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

215 Mass. 497

102 N.E. 697

In re EMPLOYERS' LIABILITY ASSUR. CORPORATION, Limited; In re McNICOL et al.; In re PATTERSON, WILDE & CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 15, 1913.

Appeal from a decree in the Superior Court in a suit under the Workmen's Compensation Act. Annie McNicol and another, dependents, Stuart McNicol, deceased employé, Patterson, Wilde & Co., employer, Employers' Liability Assurance Corporation, Limited, insurer. Reversed.

Albert S. Apsey, of Boston, for dependents.

Sawyer, Hardy & Stone, of Boston (Edward C. Stone, of Boston, of counsel), for insurer.

RUGG, C. J.

This is a proceeding under St. 1911, c. 751, as amended by St. 1912, c. 571, known as the Workmen's Compensation Act, by dependent relatives for compensation for the death of Stuart McNicol.

[1] 1. The first question is whether the deceased received an ‘injury arising out of and in the course of his employment,’ within the meaning of those words in part 2, § 1 of the act. In order that there may be recovery the injury must both arise out of and also be received in the course of the employment. Neither alone is enough.

It is not easy nor necessary to the determination of the case at bar to give a comprehensive definition of these words which shall accurately include all cases embraced within the act and with precision exclude those outside its terms. It is sufficient to say that an injury is received ‘in the course of’ the employment when it comes while the workman is doing the duty which he is employed to perform. It arises ‘out of’ the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work in required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises ‘out of’ the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.

[2] The exact words to be interpreted are found in the English Workmen's Compensation Act, and doubtless came thence into our act. Therefore decisions of English courts before the adoption of our act are entitled to weight. Ryalls v. Mechanics' Mills, 150 Mass. 190, 22 N. E. 766,5 L. R. A. 667. It there had been held that injuries received from lightning on a high and unusually exposed scaffold (Andrew v. Failsworth Industrial Society, [1904] 2 K. B. 32), from the bite of a cat habitually kept in the place of employment (Rowland v. Wright, [1908] 1 K. B. 963), from a stone thrown by a boy from the top of a bridge at a locomotive passing underneath (Challis v. London & Southwestern Ry., [1905] 2 K. B. 154), and from an attack upon a cashier traveling with a large sum of money (Nisbet v. Rayne & Burn, [1910] 2 K. B. 689), all arose in the course and out of the employment, while the contrary had been held as to injuries resulting from a piece of iron thrown in anger by a boy in the same service (Armitage v. Lancashire & Yorkshire Ry., [1902] 2 K. B. 178), from fright at the incursion of an insect into the room (Craske v. Wigan, [1909] 2 K. B. 635), and from a felonious assault of the employer (Blake v. Head, 106 L. T. Rep. 822).

The definition formulated above, when referred to the facts of these cases, reaches results in accord with their conclusions. Applying it to the facts of the present case, it seems plain that the injury of the deceased arose ‘out of and in the course of his employment.’ The findings of the Industrial Accident Board in substance are that Stuart McNicol, while in the performance of his duty at the Hoosac Tunnel Docks as a checker in the employ of a firm of importers, was injured and died as a result of ‘blows or kicks administered to him by * * * [Timothy] McCarthy,’ who was in ‘an intoxicated frenzy of passion.’ McCarthy was a fellow workman who ‘was in the habit of drinking to intoxication, and when intoxicated was quarrelsome and dangerous, and unsafe to be permitted to work with his fellow employés, all of which was known to the superintendent Matthews,’ who knowingly permitted him in such condition to continue at work during the day of the fatality-which occurred in the afternoon. The injury came while the deceased was doing the work for which he was hired. It was due to the act of an obviously intoxicated fellow workman, whose quarrelsome disposition and inebriate condition were well known to the foreman of the employer. A natural result of the employment of a peaceable workman in company with a choleric drunkard might have been found to be an attack by the latter upon his companion. The case at bar is quite distinguishable from a stabbing by a drunken stranger, a felonious attack by a sober fellow workman, or even rough sport or horseplay by companions who might have been expected to be at work. Although it may be...