In re Nagle

• Decision Date: 01 November 1941
• Citation: 37 N.E.2d 474,310 Mass. 193
• Parties: NAGLE'S CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

310 Mass. 193

37 N.E.2d 474

NAGLE'S CASE.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 1, 1941.

Proceeding under the Workmen's Compensation Act, G.L.(Ter.Ed.) c. 152, § 1 et seq., by Maurice J. Nagle, employee, opposed by the Economy Umbrella Manufacturing Company, employer, and the Liberty Mutual Insurance Company, insurer. From a decree, the employee and insurer appeal.

Insurer's exceptions dismissed, and decree dismissing claim reversed and case remanded to the Industrial Accident Board.Appeal from Superior Court, Suffolk County; Buttrick, Judge.

Argued before FIELD, C. J., and DONAHUE, DOLAN, and RONAN, JJ.

F. J. Linehan, Jr., of Boston, for claimant.

Joseph G. Leonard of Boston, for insurer.

DONAHUE, Justice.

This case was here before, and a decree entered by a judge of the Superior Court dismissing the claim of the employee was affirmed because there was no evidence that the employee's injury arose out of and in the course of his employment. Nagle's Case, 303 Mass. 384, 22 N.E.2d 475. Thereafter a judge of the Superior Court denied a motion of the insurer for the entry of final decree after rescript, and allowed motions of the employee for a stay of entry of a final decree after rescript, and for the recommittal of the case to the Industrial Accident Board ‘for further hearing on the question whether the injury to the employee arose out of and in the course of his employment.’

On recommittal the Industrial Accident Board referred the case to the single member who had heard it before, ‘for further hearing as to whether the injury to the employee arose out of and in the course of his employment and for decision anew upon the whole record.’ The single member found that the injury of the employee did not arise out of and in the course of his employment and denied his claim for compensation. The reviewing board adopted the findings and rulings of the single member and a judge of the Superior Court entered a decree dismissing the employee's claim. From this decree the employee has appealed. The insurer also appealed.

1. At the second hearing before the single member, after recommittal, the record of the first hearing before him was incorporated by reference into, and made a part of, the record of the second hearing. At the first hearing there was testimony that the employee was a ‘repair man’ in an umbrella factory and that his work was the repairing of umbrellas; that lunch hour at the factory was from 12 to 1 o'clock and that on the day he was injured, which was the day before Christmas, he left the factory, at 12 o'clock, had lunch outside and returned to the factory; that he first went to the second floor, where he worked, and left his coat near his work bench; that he then went to the third floor ‘to visit girls,’ where ‘some of the girls' were having ‘some sort of celebration * * * a small Christmas party’; that he stayed there ‘a few minutes,’ and shortly before 1 o'clock left the third floor with the purpose ‘to go to work’ on the second floor; and that while on a stairway leading from the third to the second floor, and on a step about three steps from the landing on the second floor, he fell and was injured.

At the second hearing before the single member there was additional testimony of the employee which is here summarized: He was acquainted with most of the employees in the factory. ‘He met these people often in the course of his work. At lunch time he visited around the building. There was no rule to prevent it. Nobody ever told him he could not go upstairs.’ It was not unusual for him, during the lunch hour, to go from the second to the third floor. Other employees who worked on the second floor visited on the third floor. ‘As far as he can remember, it was the customary thing for fellows who worked on the second floor and visited on the third floor to use the stairway to come back down to the second floor.’

At the second hearing before the single member, the employee filed a number of requests for findings of fact. The single member allowed certain of those requests. They were to the effect that the employee's usual place of work was on the second floor of the factory; that it was necessary for him in the course of his employment to go to other floors in the factory many times a day and in so doing to pass over the stairway in question many times each day; that ‘water bubblers' available to employees were located on the third and fourth floors of the factory and to reach them it was necessary for employees on the second floor to use the stairway in question; and that the freight elevator in the building was not available for use by employees. The single mumber, in his decision, referred to certain other requests of the employee for findings of fact which, in substance, embodied the evidence of the employee here set out in the preceding paragraph. The single member stated that he did ‘not believe’ that these requests ‘are warranted in their entirety’ on the evidence. But he did not indicate what parts of these requests for findings of fact he believed were ‘warranted’ or what evidence he disbelieved. He further stated that ‘in so far as' these requests ‘are inconsistent with the above findings they are disallowed.’ There is no apparent inconsistency between the ‘above findings' (that is, the findings he made in accordance with the requests of the employee) and the findings requested by the employee to the effect that employees in the factory were accustomed to meet on the third floor in the lunch hour, and that there was no rule or instruction by the employer to the contrary.

The ultimate conclusion of the single member, ‘that the employee's injury did not arise out of and in the course of his employment,’ was based on his ‘opinion that the additional evidence offered by the employee at * * * [the second] hearing is not sufficient to warrant a finding that ‘he was returning by a route which he was expected or allowed to use.’' In this the single member erred, as did the reviewing board, in affirming and adopting his ‘further findings, rulings and decision.’

With the additional testimony of the employee given at the second hearing there was evidence which, if believed, warranted the following conclusions: It was a general practice of employees in the factory to gather on the third floor during noon hours. There was no rule or instruction of the employer to the...