In re McPhee

• Decision Date: 16 September 1915
• Parties: In re McPHEE. In re LONDON GUARANTEE & ACCIDENT CO., Limited.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

222 Mass. 1

109 N.E. 633

In re McPHEE.

In re LONDON GUARANTEE & ACCIDENT CO., Limited.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 16, 1915.

Appeal from Superior Court, Suffolk County.

Proceedings under the Workmen's Compensation Act to obtain compensation for the death of Otis McPhee. Compensation was awarded, and the award was confirmed by the superior court, and the London Guarantee & Accident Company, the insurance company, appeals. Decree affirmed.

Thos. H. Buttimer, of Boston, for employé.

H. S. Avery, of Boston, for insurer.

RUGG, C. J.

The dependent of the deceased employé has suggested a question whether the case is rightly here, because it is provided by the Workmen's Compensation Act as amended by St. 1912, c. 571, § 14:

‘That there shall be no appeal from a decree based upon an order or decision of the board which has not been presented to the court within ten days after the notice of the filing thereof by the board.’

This does not mean that the case must be actually brought to the attention of a judge of the superior court within that time. It is a compliance with the statute if the required papers are presented to the court in the sense of being filed as a part of its records. The case is here rightly.

Otis McPhee was employed in the summer of 1913 as superintendent by the Atlantic Park Company, a subscriber under the Workmen's Compensation Act. The business of his employer was that of operating an amusement resort near Nantasket Beach in the town of Hull. In the performance of his duty as such employé, McPhee organized a fire brigade to protect the property of his employer. He was also a regular member of the fire department of the town of Hull and received for his services in that connection $50 per year, and was liable to a fine of 50 cents for an inexcusable absence from a fire. On the evening of June 22, 1913, fire broke out in a garage distant about 40 feet from the property of the subscriber.

The arbitration committee, whose findings have been confirmed by the Industrial Accident Board, reported that:

‘McPhee, in his capacity as superintendent and as organizer of the volunteer fire department, went to the garage, for the double purpose of extinguishing the fire and protecting the buildings of his employer, the Atlantic Park Company, from the danger caused by said fire. McPhee was a volunteer member of the Hull Fire Department,it is true, but as ground superintendent for the subscriber, the Atlantic Park Company, he was in charge of the volunteer fire department of that company and was subject to the call of duty at the time the fire began, and remained on duty in connection with his work as superintendent of the grounds and buildings, and as director of the park's volunteer fire force, until the fire at the garage was extinguished and all danger of fire at the garage to the property in his care had passed. He, with about a dozen men, took the Atlantic Park Company's chemical engine to the garage, with the approval of the general manager of that company, who stated that it was McPhee's duty to do that. ‘In attempting to put out the fire, I considered that they were doing their duty by me, and acting as my employés in so doing,’ said General Manager Dodge; so that there can be no question as to McPhee being in the performance of the duty for which he was hired when he and his men ran with the chemical to the garage and remained there until the fire was put out. The fact that McPhee, at one time, according to the testimony of several of the volunteer members of the Hull Fire Department, was at the top of a ladder endeavoring to assist in putting out the fire, does not remove him from the sphere of his employment as superintendent and director of the Park's volunteer firemen. They had done all they possibly could with the chemical engine; McPhee had been drenched with water and saturated with smoke; the personal injury...