In re King

• Decision Date: 27 February 1915
• Citation: 220 Mass. 290,107 N.E. 959
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: In re KING. In re MASSACHUSETTS BONDING & INS. CO.

220 Mass. 290

107 N.E. 959

In re KING.

In re MASSACHUSETTS BONDING & INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 27, 1915.

Appeal from Superior Court, suffolk County.

Claim by Catherine King, widow of Arthur King, deceased, an employé, against the Boston Brick Company, employer, and Massachusetts Bonding & Insurance Company, insurer. From a decree of the superior court enforcing a decision of the Industrial Accident Board, in favor of the dependent claimant, the insurer appeals. Reversed.

Gaston, Snow & Saltonstall, of Boston (Gasper G. Bacon, of Boston, of counsel), for appellant.

Walter Hartstone and Stephen J. Gilman, both of Boston, for appellee.

BRALEY, J.

The findings of the Industrial Accident Board, that the employé at the time of the accident which caused his death while delivering brick in the course of his employment was the servant of Deguio, a subcontractor of the Boston Brick Company, a subscriber of the insurer, were warranted by the evidence. Morgan v. Smith, 159 Mass. 570, 35 N. E. 101;Driscoll v. Towle, 181 Mass. 416, 418, 63 N. E. 922;Delory v. Blodgett, 185 Mass. 126, 69 N. E. 1078,64 L. R. A. 114, 102 Am. St. Rep. 328;Oulighan v. Butler, 189 Mass. 287, 290, 291, 75 N. E. 726;Haskell v. Boston District Messenger Co., 190 Mass. 189, 193, 76 N. E. 215,2 L. R. A. (N. S.) 1091, 112 Am. St. Rep. 324,5 Ann. Cas. 796;Bowie v. Coffin Valve Co., 200 Mass. 571, 578, 86 N. E. 914. It would follow under St. 1911, c. 751, pt. 3, § 17, and sections 6 and 7 of part 2, that the dependent, the employé's widow, would be entitled to the compensation awarded. But as the accident happened while section 2 of part 5, since amended by St. 1914, c. 708, § 13, was in force, the insurer contends, that not only was the further finding that the employé's service was not casual unwarranted, but the ruling that the burden of proof rested on it to show the scope of his employment was wrong. If it be assumed that ‘the excerpts from the transcript of the evidence’ attached to the decision at the insurer's request state all the evidence on this question, the employment was but for a single day. Under the most favorable interpretation for the dependent there was no agreement or understanding express or implied extending the service beyond the close of the day's work, and the present case cannot be distinguished in principle from Gaynor's Case, 217 Mass. 86, 104 N. E. 339, and Cheevers' Case, 219 Mass. 244, 106 N. E. 861, where it was held that the employment being casual the employé did not come within the statute....