In re Sundine

• Decision Date: 21 May 1914
• Citation: 105 N.E. 433,218 Mass. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: In re SUNDINE. In re F. L. DUNNE & CO. In re LONDON GUARANTEE & ACCIDENT CO., Limited.

218 Mass. 1

105 N.E. 433

In re SUNDINE.

In re F. L. DUNNE & CO.

In re LONDON GUARANTEE & ACCIDENT CO., Limited.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1914.

Appeal from Superior Court, Suffolk County.

Proceeding under the Workmen's Compensation Act to determine the right of Emily Sundine to compensation as an employé of F. L. Dunne & Co. From a decree in favor of the employé, the London Guarantee & Accident Company, Limited, the insurer, appeals. Affirmed.

F. L. Dunne & Co. were merchant tailors, and Edward Olsen made clothing for such company in its workshop, and Emily Sundine was employed by Olsen. F. L. Dunne & Co. was insured by the London Guarantee & Accident Company, Limited, and Olsen was not covered by insurance under the act.

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

Richard J. Lane, of Boston, for appellee.

SHELDON, J.

[1] It is provided by statute (St. 1911, c. 751, pt. 3, § 17) that ‘if a subscriber enters into a contract, written or oral, with an independent contractor to do such subscriber's work, * * * and the association would, if such work were executed by employés immediately employed by the subscriber, be liable to pay compensation under this act to those employés, the association shall pay to such employés any compensation which would be payable to them under this act,’ if the independent contractor were a subscriber. By the word ‘association’ is meant the Massachusetts Employés' Insurance Association (point 5, § 2, of the same act); and this insurance company is under the same liability that the association would have been (St. 1912, c. 571, § 17). It follows that the petitioner has the same rights against this insurance company as if it had directly insured her employer Olsen.

[2] The insurer does not deny this but it contends that the petitioner's injury did not arise ‘out of and in the course of’ her employment within the meaning of point 2, § 1, of the act first referred to. This is because she was injured at about noon, after she had left the roon in which she worked, for the purpose of getting a lunch, and upon a flight of stairs which, though affording the only means of going to and from her workroom, was yet not under the control either of Olsen her employer or of Dunne & Co., for whose work Olsen was an independent contractor.

The first contention, that she was not in the employ of Olsen while she was going to lunch, cannot be sustained. Her employment was by the week. It would be too narrow a construction of the contract to say that it was suspended when she went out for this merely temporary purpose, and was revived only upon her return to the workroom. It was an incident of her employment to go out for this purpose. Boyle v. Columbian Fire Proofing Co., 182 Mass. 93, 102, 64 N. E. 726. The decisions upon similar questions under the English act are to the same effect. Blovelt v. Sawyer [1904] 1 K. B. 271, which went on the ground that the dinner hour, though not paid for, was yet included in the time of employment. Moore v. Manchester Liners, 3 Butterworth's Workmen's Compensation Cases, 527, where the House of Lords reversed the decision of the Court of Appeal, reported in [1909] 1 K. B. 417, and held, following the dissenting opinion of Fletcher Moulton, L. J., that a temporary absence by...