In re Higgins

• Decision Date: 01 November 1933
• Citation: 284 Mass. 345,187 N.E. 592
• Parties: HIGGINS' CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

284 Mass. 345

187 N.E. 592

HIGGINS' CASE.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 1, 1933.

Appeal from Superior Court, Suffolk County; Whiting, Judge.

Proceeding under the Workmen's Compensation Act by Eric Higgins, claimant, opposed by employer and insurer. From a decree awarding compensation, the insurer appeals.

Affirmed.

A. P. Sleeper, of Boston, for claimant.

G. Gleason, of Boston, for insurer.

LUMMUS, Justice.

The first question is whether the claimant was an ‘employee’ under ,G. L. (Ter. Ed.) c. 152, § 1, or an independent contractor. He was hired by Sears, Roebuck and Company to install oil burners in the houses of their customers. Some customers paid Sears, Roebuck and Company for installation, and others received installation free. Sears, Roebuck and Company paid the claimant, upon presentation of his account, at the rate of $3 a burner and $2 a coil. One Levy, acting for Sears, Roebuck and Company, told him where to go to do work. The claimant was required to have his own automobile with which to travel to jobs at his own expense. He was one of several ‘service men’ working for Sears, Roebuck and Company, some of whom worked on a salary basis but with similar duties. As often as three or four times a week the claimant was sent out to do service work on burners that he had not installed. On C. O. D. orders he collected money and turned it in. Whenever he finished a job, he telephoned Levy for further directions or returned to the store. Rarely he did a little incidental work for a customer, not included in the installation, and received pay from the customer ‘on his own,’ but he had little time for such work. On these facts the finding of the Industrial Accident Board that the claimant was an employee and not an independent contractor cannot be pronounced wrong. McAllister's Case, 229 Mass. 193, 118 N. E. 326. See, also, McDermott's Case (Mass.) 186 N. E. 231.

The injury in the present case, however, occurred not while the claimant was working on a job, but while he was traveling on the highway in his automobile on March 5, 1932, from a finished job to the store of Sears, Roebuck and Company, in pursuance of his duty to return to the store when not otherwise assigned. His automobile caught fire without apparent reason, and that caused him to lose control of the automobile and to run into a tree, which resulted in serious bodily injury. Prior to the amendment to G. L. c. 152, § 26, introduced by St. 1930, c. 205 (now forming part of the last sentence of G. L. [Ter. Ed.] c. 152,§ 26), a person in the position of the claimant, while operating his own automobile on the highway, was deemed an independent contractor and not an employee with reference to that operation, although he might have been an employee with respect to other parts of his work; but under that amendment the claimant remained an employee while operating his automobile ‘with his employer's general authorization or approval, in the performance of work in connection with the business affairs or undertakings of his employer.’ See Manley's Case, 280 Mass. 331, 182 N. E. 486.

Yet it is not enough, to entitle the claimant to compensation, to show that he remained an employee while operating his automobile. The original Workmen's Compensation Act, St. 1911, c. 751, part 2, § 1, gave compensation to an employee only for a personal injury ‘arising out of and in the course of his employment’; and these words still remain the principal test of a compensable injury. G. L. (Ter. Ed.) c. 152, § 26. Compensation has often been denied an employee sustaining an injury while at work at his station, because of a lack of causal relation between the employment and the injury. Harbroe's Case, 223 Mass. 139, 111 N. E. 709, L. R. A. 1916D, 933;Sanderson's Case, 224 Mass. 558, 113 N. E. 355;Murphy's case, 230 Mass. 99, 119 N. E. 657;Dougherty's Case, 238 Mass. 456, 131 N. E. 167, 16 A. L. R. 1036;Lee's Case, 240 Mass. 473, 134 N. E. 268, 20 A. L. R. 870;Feldman's Case, 240 Mass. 555, 134 N. E. 251;Cinmino's Case, 251 Mass. 158, 146 N. E. 245, 37 A. L. R. 769. In McNicol's Case, 215 Mass. 497, 498, 499, 102 N. E. 697, L. R. A. 1916A, 306, the court said: ‘In order that compensation may be due the injury must both arise out of and also be received in the course of the employment. Neither alone is enough. * * * 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 is required to be performed and the resulting injury. * * * The causative danger must be peculiar to the work and not common to the neighborhood. * * * 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.' In Sponatski's Case, 220 Mass. 526, 531, 108 N. E. 466, 468, L. R. A. 1916A, 333, the court further said: ‘It is of no significance whether the precise physical harm was the natural and probable or the abnormal and inconceivable consequence of the employment. The single inquiry is whether in truth it did arise out of and in the course of that employment.’ See, also, Reithel's Case, 222 Mass. 163, 165, 109 N. E. 951, L. R. A. 1916A, 304;Belanger's Case, 274 Mass. 371, 174 N. E. 497.

Where an employee works in the street, as a teamster does, a causal connection between his employment and a risk of the street is not hard to find. Keaney's Case, 232 Mass. 532, 122 N. E. 739;Moran's Case, 234 Mass. 560, 125 N. E. 591, explained in the dissenting opinion in Cook's Case, 243 Mass. 572, 578, 137 N. E. 733, 29 A. L. R. 114, which became substantially the prevailing opinion in Colarullo's Case, 258 Mass. 521, 155 N. E. 425, 51 A. L. R. 508;Gardner's Case, 247 Mass. 308, 310, 142 N. E. 32, 32 A. L. R. 804. See, also, Mannix's Case, 264 Mass. 584, 163 N. E. 171. If an employer, in performance of one of the express or implied terms of the employment, furnishes vehicular transportation to an employee, an injury during that transportation has been held to arise ‘out of and in the course of his employment.’ Donovan's Case, 217 Mass. 76, 104 N. E. 431, Ann. Cas. 1915C, 778;Gilbert's Case, 253 Mass. 538, 149 N. E. 412;Vogel's Case, 257 Mass. 3, 153 N. E. 175;Johnson's Case, 258 Mass. 489, 493, 155 N. E. 460;Lee's Case, 279 Mass. 357, 181 N. E. 198. See, also, Ross v. John Hancock Mutual Life Ins. Co., 222 Mass. 560, 111 N. E. 390;White v. E. T. Slattery Co., 236 Mass. 28, 127 N. E. 597. The street risk cases in which compensation has been denied go on the ground that an employee in an employment that requires travel in the street, when injured by a street risk to which travelers not so employed are equally exposed, fails to show a causal connection between his employment and his injury. Colarullo's Case, 258 Mass. 521, 155 N. E. 425, 51 A. L. R. 508, and cases cited; Carlstrom's Case, 264 Mass. 493, 162 N. E. 893;Wamboldt's Case, 265 Mass. 300, 163 N. E. 910;Morse's Case, 270 Mass. 276, 170 N. E. 60; In Hewitt's Case, 225 Mass. 1, 113 N. E. 572, L. R. A. 1917B, 249, compensation was denied to a salesman injured by the overturning of an automobile in which he was riding. Plainly, the claimant would not have been entitled to compensation under the law as it existed prior to the amendment of 1927.

St. 1927, c. 309, § 3 (now part of G. L. [Ter. Ed.] c. 152, § 26), inserted in the statute, as an additional class of compensable personal injuries to an employee, those ‘arising out of an ordinary risk of the street while actually engaged, with his employer's authorization, in the business affairs or undertakings of his employer, and whether within or without the commonwealth.’ The present case turns upon the construction of the amendment of 1927. Its legislative history is not significant, for the language of the amendment as enacted was substituted in the Senate (Senate Bill No. 298, § 3) for a bill (House Doc. No. 999; Senate Bill No. 239, § 2) which contained no particular reference to street risks but provided for compensation whenever an employee receives personal injury ‘while actually engaged * * * in the business affairs or undertakings of his employers.’ The insurer contends that the risk which caused the injury in the present case was not ‘ordinary,’ but extraordinary and unusual, and not within the amendment of 1927 as construed in the opinion in Morse's Case, 270 Mass. 276, 170 N. E. 60, with the result that the rule allowing no compensation for injury resulting from risks of travel in the street, illustrated by Colarullo's Case, 258 Mass. 521, 155 N. E. 425, 51 A. L. R. 508, still applies to preclude compensation. But there are grave objections to such a construction of the amendment of 1927. In the first place, it would open in cases falling within the amendment a troublesome and novel question as to the frequency and likelihood of occurrence of such an injury, whereas as under the original act the only test is actual causal relation. Furthermore, since the amendment of 1927 clearly had the general purpose of getting rid of the rule allowing no compensation for injury resulting from risks of travel in the street, illustrated by Colarullo's Case, 258 Mass. 521, 155 N. E. 425, 51 A. L. R. 508, a legislative intent to preserve any remnant of that rule appears unlikely. The very risks of travel which were declared noncompensable in that case were sometimes described, prior to the amendment, as ‘ordinary’ risks of the street. See Cook's Case, 243 Mass. 572, 574, and (dissenting opinion) 577, 137 N. E. 733, 736, 29 A. L. R. 114. We think that the word ‘ordinary’ in the amendment of 1927 was not intended to restrict the street risks made compensable thereby to...