In re Gaynor
| Citation | 217 Mass. 86,104 N.E. 339 |
| Parties | In re GAYNOR. |
| Decision Date | 27 February 1914 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Exceptions and Appeal from Superior Court, Suffolk County; Edward P. Pierce, Judge.
Proceeding under the Workmen's Compensation Act to enforce a decision of the Industrial Accident Board in the matter of Joseph C. Gaynor, deceased, employé, Emma G. Gaynor, administratrix, T. D. Cook & Co., Incorporated, employer, and the Standard Accident Insurance Company insurer. From a decree affirming the decision, the insurer excepts and appeals. Reversed.
Dickson & Knowles, of Boston, for petitioner and insurer.
Edward M. Sullivan, of Providence, R. I., for appellee.
The facts in this case are that the deceased employé was a waiter employed, at the time his injuries were received, by T. D. Cook & Co., Incorporated, caterers, having a regular place of business in Boston. It had a contract to serve a banquet at Mt. Holyoke Colloge, South Hadley, on October 9, 1912, and on the day before engaged the deceased for service at that banquet. Its agent told the deceased that, if he would report at the South Station in Boston the next morning, he could go to South Hadley at its expense with the other waiters. The wage for the service was to be $4, together with transportation from Boston to South Hadley and return. The deceased reported at 7 o'clock in the morning of October 9th, reached South Hadley at half past 11 o'clock in the forenoon, and was injured while preparing to serve the banquet. This was the first time he had ever worked for this employer. The work was finished at 5 o'clock in the afternoon, and the decedent then would have been entitled to $4 and would have been at liberty either to return to Boston at the expense of his employer or go elsewhere on his own account. It was a part of the regular business of the employer to provide and serve banquets, but for such service no men were regularly employed. The custom of the catering business is that such banquets are served by waiters secured for the particular occasion. Such waiter might work for different employers on the same day, or for many different employers on successive days. The point to be decided is whether the deceased was an employé as defined in the Workmen's Compensation Act (St. 1911, c. 751, pt. 5, § 2) as follows: “Employé' shall include every person in the service of another under any contract of hire, express or implied, oral or written, * * * except one whose employment is but casual, or is not in the usual course of the trade, business, profession or occupation of his employer.'
The crucial words to be construed are those contained in the exception out of the class of employé of ‘one whose employment is but casual.’ The word ‘casual’ is in common use. Its ordinary signification, as shown by the lexicographers, is something which comes without regularity and is occasional and incidental. Its meaning may be more clearly understood by referring to its antonyms which are ‘regular,’ ‘systematic,’ ‘periodic’ and ‘certain.’ The significance of this exception in our act is emphasized by its contrast with the provisions of the English act. which is different in a material respect. As is pointed out in Hill v. Begg, [1908] 2 K. B. 802, at 805, its words descriptive of the workman are not one whose employment is but casual, but one ‘whose employment is of a casual nature, and * * * otherwise than for the purposes of the employer's trade or business.’ This difference in phraseology cannot be treated as unintentional, but must be regarded as deliberately designed. See Report of Massachusetts Commission on Compensation for Industrial Accidents, 53. Manifestly its effect is to narrow the scope of our act as compared with the English act. No one whose employment is ‘casual’ can recover here, while there one whose employment is ‘of a casual nature’ comes within the act, provided it is also for the purpose of the employer's trade or business. It is possible that a distinction as to the character of the employment may be founded upon the difference between the modifying word ‘casual’ used in our act, and the words ‘of a casual nature’ in the English act. The phrase of our act tends to indicate that the contract for service is the thing to be analyzed, in order to determine whether it be casual, while in the English act the nature of the service renderedis the decisive test. This distinction appears to have been made the basis of decision in Knight v. Bucknill, 6 B. W. C. C. 160. This consideration is to be noted because the English act was followed in many respects closely by our act, and hence even slight differences of phraseology may be assumed to have signification.
But even the decisions under the English act are plain to the effect that employment such as that which existed in the case at bar there would be treated not only as casual in the respect of the contract for hiring, but also casual in its nature. In Hill v. Begg, [1908] 2 K. B. 802, the employment of...
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