In re Indrisano
| Decision Date | 10 December 1940 |
| Citation | 30 N.E.2d 538,307 Mass. 520 |
| Parties | INDRISANO'S CASE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Proceeding under the Workmen's Compensation Act by Carmine Indrisano, claimant, opposed by Thomas D. Russo Company, employer, and the compensation insurer. From a decree for compensation, pursuant to award by a reviewing board, the insurer appeals.
Affirmed.Appeal from Superior Court, Suffolk County; Brogna, Judge.
Argued before FIELD, C. J., and DONAHUE, LUMMUS, QUA, and DOLAN, JJ.
H. B. White, of Boston, for insurer.
G. A. Cataldo, of Boston, for employee.
The evidence warranted a finding of the following facts. The employee was a foreman in the employ of Thomas D. Russo Company, which was building the concrete foundation of a new building on its land on Florence Street in Roslindale. He had charge of the concrete work, and at the time in question no superior was present. On September 21, 1938, as he and the men under him finished their work shortly after six o'clock in the afternoon, and were about to lock up their tools in the shed and go home, the hurricane described in the opinion in Caswell's Case, Mass., 26 N.E.2d 328, caused a branch, seven or eight inches in diameter and ten or twenty feet long, of a large tree on the Russo land, to break off and block the sidewalk and street in front of that land. The employee testified without objection that it was his duty as foreman to leave the streets and everything clean when leaving the job. The superintendent for his employer testified without objection that the employee had orders to leave the sidewalks clean. As soon as the branch fell, the employee directed the man under him to saw the branch and clear it away, and helped them in the work. While on the sidewalk working on the branch, the employee was struck and injured by another large branch of the same tree, which was torn off by the continuing hurricane.
The insurer objected before the single member to the admission of oral testimony that some ‘building law,’ not cited, forbade any obstruction of a sidewalk and required a builder to remove any obstruction, whatever its cause. This objection, however well founded, cannot avail the insurer in this court, for three reasons.
1. The record fails to show that the objection was relied on before the reviewing board, the decision of which superseded and made unimportant that of the single member. DiClavio's Case, 293 Mass. 259, 261, 199 N.E. 732;Schenck's Case, 293 Mass. 526, 530, 200 N.E. 266;Ricci's Case, 294 Mass. 67, 200 N.E. 568;D'Amato's Case, 294 Mass. 297, 1 N.E.2d 188;Filosa's Case, 295 Mass. 592, 595, 4 N.E.2d 439;Mozetski's Case, 299 Mass. 370, 372, 13 N.E.2d 10. At the time when it was said in Duprey's Case, 219 Mass. 189, 193, 106 N.E. 686, that objection must be made before the board in order to bring to this court questions of evidence in workmen's compensation cases, there was no such thing as a hearing before a single member sitting alone, and the reviewing board must have been meant. Fountaine's Case, 246 Mass. 513, 141 N.E. 594. A question of evidence is not brought to the Superior Court or to this court unless shown to have been raised before the reviewing board. Minns's Case, 286 Mass. 459, 467, 190 N.E. 843; Di Clavio's Case, 293 Mass. 259, 261, 199 N.E. 732;Wnukowski's Case, 296 Mass. 63, 67, 5 N.E.2d 3. See also Akins's Case, 302 Mass. 562, 565, 566, 20 N.E.2d 453;Gustafson's Case, 303 Mass. 397, 401, 21 N.E.2d 961.
2. Objection, even before the reviewing board, is not enough. There must be an exception. Korobchuk's Case, 277 Mass. 534, 537, 179 N.E. 175;Phillips's Case, 278 Mass. 194, 196, 179 N.E. 691. See also Hess v. Boston Elevated Railway, Mass., 24 N.E.2d 550;Okin v. Sullivan, 307 Mass. 227, 29 N.E.2d 762. The exception required, looked at historically, is not the common law exception traced in Endicott, petitioner, 24 Pick. 339, and Tyndale v. Stanwood, 186 Mass. 59, 71 N.E. 83, made applicable to equity cases in this court, the Superior Court, and the Land Court by the breadth of our statute (G.L.Ter.Ed.) c. 231, §§ 113, 114, 144; Dorr v. Tremont National Bank, 128 Mass. 349; Pigeon's Case, 216 Mass. 51, 55, 102 N.E. 932, Ann.Cas.1915A, 737), and presented to this court by a bill of exceptions. Gould's Case, 215 Mass. 480, 102 N.E. 693, Ann.Cas. 1914D, 372. It is rather the exception known to equity practice, the creature of no statute, familiar when taken to a master's report, defined as ‘the act of appealing from rulings appearing of record, and nothing more’ (O'Brien v. Keefe, 175 Mass. 274, 276, 56 N.E. 588), and presented to this court as part of the record on appeal. As applied to questions of the admission or exclusion of evidence in equity cases heard by a judge, this latter sort of exception lay dormant in this Commonwealth for many years until brought into activity by St.1913, c. 716, § 4 (G.L. (Ter.Ed.) c. 214, § 25). It was however, in use in equity cases in other jurisdictions. Eden v. Earl of Bute, 1 Brown Parl.Cas. 465, 466, 467; Gilbert v. Endean, 9 Ch.D. 259, 267; Maryland Stat. 1832, c. 302, s 5. Harwood v. Jones, 10 Gill & J., Md., 404, 414, 32 Am.Dec. 180;Binford's Adm'r v. Dement, 72 Ala. 491;Corn v. Sims, 3 Metc. Ky. 391, 397;Dodge v. Griswold, 12 N.H. 573, 576;Pederson v. Ullrich, 50 Wash. 211, 96 P. 1044;Brockett v. Brockett, 3 How., U.S., 691, 692, 11 L.Ed. 786. Compare Jacker v. International Cable Co. Ltd. 5 T.L.R. 13; Redman v. Hurley, 89 Me. 428, 434, 36 A. 906;Burrill v. Giles, 119 Me. 111, 109 A. 390;Skidmore v. Harris, 157 Ky. 756, 761, 164 S.W. 98;Smith v. Newland, 40 Ill. 100;McKee v. Downing, 224 Mo. 115, 135, 124 S.W. 7. In workmen's compensation cases in this Commonwealth the exception of equity practice enabled questions of evidence to be taken up on appeal even before the statute of 1913, and bills of exception have been unknown. Pigeon's Case, 216 Mass. 51, 102 N.E. 932, Ann.Cas.1915A, 737, in which the Industrial Accident Board had made its decision before the enactment of that statute. See also Mackintosh, Petitioner, 246 Mass. 482, 141 N.E. 496;Jenkins v. Jenkins, 304 Mass. 248, 23 N.E.2d 405.Corbett's Case, 270 Mass. 162, 164, 165, 170 N.E. 56. 3. Independently of G.L.(Ter.Ed.) c. 231, § 132, but in accordance with general equity...
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... ... Furthermore, if the employee thought that the point was worth raising, he should have done so before the member or the reviewing board, and it is too late to raise it for the first time in this court. Wnukowski's Case, 296 Mass. 63, 5 N.E.2d 3;Indrisano's Case, 307 Mass. 520, 30 N.E.2d 538. It is finally urged that the loss of the use of his right hand by one whose only occupation was that of a butcher renders him totally and permanently disabled and entitles him to further payment under G.L.(Ter.Ed.) c. 152, 34A, as inserted by St.1935, c. 364 ... ...
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