In re Souza

• Decision Date: 02 June 1944
• Citation: 316 Mass. 332,55 N.E.2d 611
• Parties: SOUZA'S CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

316 Mass. 332

55 N.E.2d 611

SOUZA'S CASE.

Supreme Judicial Court of Massachusetts, Suffolk.

June 2, 1944.

Proceeding under the Workmen's Compensation Act by Frank M. Souza, claimant, opposed by the Cooper-Bessemer Corporation, employer. From a decree of the Superior Court denying compensation, claimant appeals.

Decree reversed, and entry of a decree granting compensation ordered.Appeal from Superior Court, Suffolk County; Brogna, Judge.

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, RONAN, WILKINS, and SPALDING, JJ.

S. B. Horovitz and B. A. Petkun, both of Boston, for claimant.

W. I. Badger, Jr., of Boston, for insurer.

QUA, Justice.

The deceased employee lost his life in a fire, in the early morning of January 30, 1942, while asleep in a rooming house in New Bedford, where he was spending the night. The question is whether his injury and death arose out of and in the course of his employment. G.L.(Ter.Ed.) c. 152, § 26, as amended.

Findings of the board and facts not in dispute are these: The deceased was employed by the Cooper-Bessemer Corporation, whose business was the manufacture and sale of Diesel marine engines. This corporation had an office in Gloucester, which was the headquarters of the deceased. The home of the deceased was in that vicinity. His work was that of a ‘service man’ in connection with the installation and repair of his employer's engines. His work was not confined to Gloucester, but called him to various places up and down the Coast and required him from time to time to be away from home nights. When he was away from Gloucester his employer was in touch with him. It knew where he could be reached when he was in New Bedford. He worked ‘on a basis' of forty-four hours a week, but neither he nor the company adhered to this schedule. He was required to work ‘whenever he was called upon’ and was ‘expected to expend as much time as the work in hand required.’ ‘In any emergency, whether during or after regular hours, he was expected to put in as much of his time and attention as in his judgment the situation required.’ He ‘had no stated or definite hours of work each day, and, in the event of necessity or emergency, was, even after the regular hours, subject to the company's call at any time.’ His employment was ‘of a continuous nature.’ He was paid a salary, and in addition, when away from home, he was paid his expenses for room, board, and transportation. Although he was free to select his own lodging place, it was his custom, when in New Bedford, to lodge at the place where he met his death. His employer knew this. There was much evidence that this place was convenient to the vessels upon which he would have occasion to work, and that he could come there in his working clothes. It was ‘a proper place’ for him to lodge. The deceased had gone to New Bedford on January 29. According to the evidence there was work to be done on several vessels. The deceased was required to spend the night and to resume work the next day. He was where his employer could communicate with him during the night if occasion arose. He was subject to such a call at any time, and his employer would have reasonably expected to find him in his room in the lodging house if the occasion had arisen. The evidence shows clearly the necessity of keeping the vessels using the employer's engines in operating condition without regard to hours of work, and that calls upon the employee for work at odd hours were not uncommon.

Staying at the lodging house in New Bedford involved a degree of risk from fire. The question is not whether that risk was greater than the similar risk at some other place where the employee might have stayed, or at his own home, if his employment had not called him away from home. The question is whether his employment brought him in contact with the risk that in fact caused his death. The correctness of this statement is illustrated by cases where compensation has been allowed for injuries sustained on the employer's own premises or the approaches to these premises by reason of slipping upon stairs or floors or coming in contact with objects of a familiar kind which might equally well be encountered in other places. In such cases the inquiry has not been whether the danger was greater where the employee was injured than at his own home or at some other place where he might have been if he had not been where he was. The inquiry has been whether his employment exposed him to the risk, whatever it was, which actually caused the injury. See, for example, Sundine's Case, 218 Mass. 1, 105 N.E. 433, L.R.A.1916A, 318; Cox's Case, 225 Mass. 220, 114 N.E. 281; O'Brien's Case, 228 Mass. 380, 117 N.E. 619;Hallett's Case, 230 Mass. 326, 119 N.E. 673;Id., 232 Mass. 49, 121 N.E. 503;Sullivan's Case, 241 Mass. 9,34 N.E. 406;Crown's Case, 254 Mass. 496, 150 N.E. 299;Doyle's Case, 256 Mass. 290, 152 N.E. 340;Cusick's Case, 260 Mass. 421, 157 N.E. 596;Sullivan's Case, 265 Mass. 463, 164 N.E. 392; and Holmes' Case, 267 Mass. 307, 166 N.E. 827.

And in Caswell's Case, 305 Mass. 500, 26 N.E.2d 328, this principle was held to apply even when the wall of the building in which the employee was at work was caused to fall upon him by the violence of a hurricane. In that case we said: ‘It [the injury] need not arise out of the nature of the employment. An injury arises out of the employment if it arises out of the nature, conditions, obligations or incidents of the employment; in other words, out of the employment looked at in any of its aspects.’ 305 Mass. at page 502, 26 N.E.2d at page 330. In that case many illustrations are given of cases where the employee had been injured by contact with some tangible object pertaining to his place of work and was allowed compensation, even though the contact had not been brought about by the nature of the employment itself but had been caused by the operation of such forces as disease of the employee, the fall of a wall on adjoining land crushing the roof of the building in which the employee worked, lightning, a cyclone, or an earthquake. It seems to us that injury and death in a fire in a building, whether from flames, smoke gases, the falling of objects, or the falling of the employee himself are to be treated as if arising from contract with some part of the premises, and that it is not necessary to show the precise nature of the contract or the cause of the fire.

Another established principle is that the employee, in order to be entitled to compensation, need not necessarily be engaged in the actual performance of work at the moment of injury. It is enough if he is upon his employer's premises occupying himself consistently with his contract of hire in some manner pertaining to or incidental to his employment. This principle has been applied in instances where the employee was resting (Sullivan's Case, 241 Mass. 9, 134 N.E. 406;Holmes's Case, 267 Mass. 307, 166 N.E. 827), attending to a call of nature (Haskins' Case, 261 Mass. 436, 158 N.E....