In re Goff

• Decision Date: 25 November 1919
• Citation: 234 Mass. 116,125 N.E. 145
• Parties: GOFF'S CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

234 Mass. 116

125 N.E. 145

GOFF'S CASE.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 25, 1919.

Appeal from Superior Court, Suffolk County.

Proceeding for compensation, under the Workmen's Compensation Act (St. 1911, c. 751, as amended), by Henry A. Goff, the employé, opposed by Ora S. Gray, the employer, and the Maryland Casualty Company, the insurer. Compensation was awarded by the Industrial Accident Board, the award affirmed by the superior court, and the insurer appeals. Decree of the superior court affirmed.

All the material evidence is reported herewith:

Dr. Frank E. Dow, called by the claimant, testified that he is an oculist, and has practiced for seven years. He examined the employé's injured eye and found it very badly contused, with a sloughing ulcer in the cornea. He curetted the cornea, touched it with tincture of iodine, gave him something to ward off any complication, and then applied hot compresses to aid the circulation. The witness treated the claimant's eye from May 9th to June 17th. Everything that can be done for the eye has been done. The eye is very good looking, but there is less than one-tenth of normal vision in same. The man practically cannot see out of his injured eye. The condition existing is a permanent one, and according to the witness that condition will not improve. The charge made for the curetting was $5, the normal fee for such work, and $2 was charged for every succeeding office visit, making the doctor's bill $43. None of this bill has been paid yet.

On cross-examination the witness testified that the vision in the uninjured eye is practically as good as it ever was. After the second week a complication of iritis set in, which prevented him from returning to work for at least four or five weeks, because it demanded constant treatment. Whenever one eye gets a severe injury, the other one becomes sympathetically affected, and this makes a man feel like lying down rather than working. The complication of iritis gives quite a little pain. The witness looked at the employés eye on the morning of the hearing and could find no inflammation in same.

Fred J. Humphrey testified that his business is that of a wood lot broker. For a number of years he has had experience in buying and selling wood lots and farms and cutting wood from the lots. For 12 or 14 years he has followed that sort of work. Some time in April of 1917 he entered into a business agreement with Ora S. Gray to buy and sell wood lots, etc. Mr. Gray agreed to furnish the machine and the profits were to be divided equally. Under the name of Ora S. Gray they bought the pine and chestnut trees on the Sidney White lot some time around the latter part of July. They sold the lumber from that lot and reserved the tops for cordwood. The West Park people engaged help to cut out the lumber and the partnership had charge of cutting the cordwood after the lumber was taken out. The firm of Ora S. Gray bought the Stone lot about the 1st of September and decided to put men right to work there to cut up the ties and cordwood. Mr. Gray and the witness talked over the idea of having the men on these lots covered by insurance and they agreed to take out an insurance policy at that time. The partnership agreement between Ora S. Gray and the witness was in writing.

(At this point in the proceedings, an agreement for a partial accounting between Ora S. Gray and Frederick Humphrey, dated March 5, 1918, was read in evidence. This agreement in substance provided for a partial accounting between the partners and it was agreed that, so far as taking on new deals, the partnership should be dissolved, and that pending operations, including cutting wood on the Sidney White lot, should be completed for the partnership by Frederick Humphrey.)

When the witness entered into this agreement on March 5th, the latter had some men jobbing on the Sidney White lot, and the witness continued on with the same men. Mr. Gould, Mr. Rider, and probably Mr. Goff were working there at that time. They were being paid $2 a cord for cutting tops. The witness continued with that employment and paid the men the same amount of money for the work. The witness paid Mr. Gould for the cutting of the wood and he paid the others.

On cross-examination the witness testified that he and Mr. Gray did not enter into a written contract when they first went into partnership. They began to do business in the latter part of April of 1917. The business was done under the name of Ora S. Gray. When the question of insuring the men came up, Mr. Gray attended to that. The witness has seen the insurance policy, but he never read it. He could not say as to whether it stated that the employer was an individual doing business under the name of Ora S. Gray. The insurance was taken out in the name of Ora S. Gray in September of 1917. They continued to do business as partners until March 5, 1918, at which time they had a partial settlement. At this time Gould was working for Gray on the White lot. The witness is not sure whether Mr. Goff was working there at that time. The witness did not remember seeing Goff on the job until after the accident. Gould was working on this lot previous to the dissolving of the partnership. He was cutting the wood at so much a cord. The witness does not remember paying any wages for the cutting of the wood to Goff. At the time of the accident the witness understood that Goff was working for Gould. The arrangements with Mr. Gould were that he was to cut the wood and get $2 a cord. The witness did not know what Mr. Gould paid Mr. Goff for cutting the wood. Although the witness was always present on the wood lot, he did not direct the men what to do. They knew how the wood had to be cut. The witness considered Gould more in the nature of a foreman to look after the men rather than an independent contractor. There were axes and saws which the business furnished, but the witness could not say whether or not Gould brought his own tools. Gould was paid simply as a foreman and he paid the other men. There was no account on the witness' books that a man named Goff worked there. There were also other men working there about whom the witness did not know. The witness simply told Gould that he would give him so much for cutting off the tops and he (Gould) was to hire his own men. The reason he made these arrangements with Gould was because it was almost impossible at that time to get help, and perhaps men would come around for work when he, the witness, would not be there. He therefore authorized Gould to hire his own men. The witness felt right along that if anything happened to the men on this lot and another lot that they would come under the insurance policy taken out by Gray. It was agreed at the time the deeds were made out that the name of the witness would not appear thereon. All orders would have to be given to Gould and he would give them to the other men. Wood choppers furnish their own axes as a rule. All the tools necessary for the work done, axes and saws, were furnished by the business. Wood choppers get along better usually when they have their own axes.

Harry A. Goff, the claimant, testified on direct examination, that he is 63 years old. He is a farmer in the summer time and in the winter and fall he does wood cutting. Last January he went to work on the Sidney White lot and continued from that time until his accident with the exception of a fewweeks.For cutting the wood he received $2 a cord. He was in what he called a partnership with Mr. Gould and they...