In re Von Ette

• Decision Date: 29 February 1916
• Citation: 111 N.E. 696,223 Mass. 56
• Parties: In re VON ETTE. In re CASUALTY CO. OF AMERICA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

223 Mass. 56

111 N.E. 696

In re VON ETTE.

In re CASUALTY CO. OF AMERICA.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 29, 1916.

Appeal from Superior Court, Suffolk County.

Proceedings by Clara C. Von Ette against the Globe Newspaper Company and the Casualty Company of America for compensation under the Workmen's Compensation Act for the death of her husband, an employé. An award of the committee of arbitration in favor of claimant being approved by the Industrial Accident Board, the insurer appealed, and, from a decree of the superior court affirming the award, the insurer appeals. Affirmed.

Peabody, Arnold, Batchelder & Luther and S. H. Batchelder, all of Boston, for appellant.

C. L. Carr, of Boston, for appellee.

CROSBY, J.

This is an appeal from a decree entered in the superior court under the workmen's compensation act. The facts as disclosed by the evidence are briefly as follows:

George C. Von Ette, the deceased, was in the employ of the Globe Newspaper Company, in Boston, as a compositor. He met his death on the night of June 21, 1914. He went to work on the evening of June 21st, and his employment for that night would have been finished at 1:45 o'clock the next morning. He was last seen alive about 11 o'clock. His dead body was found the next morning at 3:45 o'clock upon the ground six stories below the floor where he worked. The injuries which caused his death resulted from failling from the roof of the building adjoining the room in which he worked. When the deceased left his home to go to work that night, he told his wife that he would be at home on the 2 o'clock car the next morning. He was apparently in good health; he was cheerful in disposition, and there was no evidence tending to show any trouble between him and his wife. He was apparently contented and happy. He made an appointment with one of his fellow workers to visit the new fish pier on the next day. He also made arrangement to attend a recital on the following Monday evening to be given by his sister. It was a common practice of the workmen employed in the room with the deceased to go upon the roof of a building on the employer's premises for the purpose of getting fresh air, the compositors' room where the men worked being very warm, in the summer time, the temperature sometimes being 110 degrees, and warmer than the temperature outside.

The committe of arbitration finds:

‘That on the morning of the 22d of June the employé went from the room in which he was working to the roof, it being a hot night and he being in need of fresh air; and while on the roof he accidentally slipped and fell to the ground below where he met his death. * * * From the room to the roof below there is a stairway of iron as used in ordinary fire escapes.’

There was an iron railing which extended along the edge of a part of the roof, but there was no railing on that side of the roof at the place above where the body of the deceased was found.

The committee further finds:

‘That on the night the employé met with the injury, following the custom which had prevailed in the establishment, he went upon the roof; that it was a hot night; that the ventilation in the room where he worked was poor and he went out to get the fresh air; that the building adjoining the roof on which the employé went was the property of the employer. There is no evidence in the case pointing to any other reason for his going upon the roof except * * * to get away from the heat and get into the fresh air, and we further find that in so doing he was within the scope of his employment, and that the injury arose out of and in the course of his employment.’

The Industrial Accident Board took two views of the premises, one in the daytime and the other at night, and made a decision based upon their observations taken at the views, upon the evidence heard by the committee of arbitration, and upon other evidence presented at the hearing on review. The record contains all of the evidence presented to the committee and to the board.

One of the office rules of the employer posted on the premises was as follows:

‘No employé shall leave the composing room during working hours except on office business without permission of the man in charge.’

The board finds that there was an established custom among the employés, known to the employer, to go upon the roof for the purpose of obtaining fresh air, and that it was an incident of the employment of the deceased to go upon the roof. The board also finds as follows:

‘That some time towards midnight of June 21st or early in the morning of June 22d the employé went from the room in which he was working, the room being hot and the work being slack, to the roof of the Devonshire Street building, which is a part of the Globe premises, he being in need of fresh air and it being customary to use this roof for that purpose, and that while on this roof he accidently walked over the edge or became dizzy and slipped off into the areaway and fell to his death. We find that on going upon said roof he was acting within the scope of his employment and that his death was the result of injuries arising out of and in the course of his employment. We find that he did not commit suicide and that he was not under the influence of liquor.’

The insurer contended that the findings made by the committee and by the board were not warranted, and requested the board to rule that, as matter of law, no compensation could be awarded. Whether this ruling should have been given depends upon the questions: (1) Did the deceased voluntarily take his own life or was his death the result of a condition of intoxication or was it due to his accidentally falling from the roof? (2) If the injury and death resulting therefrom was due to an accident, did the injury arise out of and in the course of the employment of the deceased?

If the deceased met with his injury by reason of his serious and willful misconduct, no compensation can be awarded, and it may be conceded that if he...