Milliken v. A. Towle & Co.
| Decision Date | 08 January 1914 |
| Citation | 103 N.E. 898,216 Mass. 293 |
| Parties | MILLIKEN v. A. TOWLE & CO. Appeal of TRAVELERS' INS. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W. I. Badger W. H. Hitchcock, and L. C. Doyle, all of Boston, for appellant.
W. H Sullivan, of Boston, for appellee.
This is an appeal from a decree of the superior court based on a decision of the industrial accident board ordering the insurer to pay $1,950 for the death of Frank T. Milliken. The facts found by the board were these:
Milliken at the time of his death in October, 1912, and for some 27 years before that time, had been a driver in the employ of A Towle & Co., the insured, who were teamsters. Some 4 or 5 years before his death Milliken, in the course of his employment, fell from his wagon, striking on his head. This caused inter alia an impairment of memory. One afternoon in July, 1912 (three months before his death), Milliken lost his memory while driving his employer's wagon in Boston, and for half an hour was unable to remember where he was or to identify the streets in which he was driving, although they were streets with which he was 'thoroughly familiar.' During the day of October 8, 1912, from a similar failure of memory Milliken did not call for packages, as his duties required, and reported (contrary to the fact) that he had not received them because they were not ready. Thereupon he was directed to drive his wagon to his employer's stable in Charlestown to be put up for the night. Driving his wagon to the stable for the night was part of Milliken's regular work. This order was given to Milliken about 5 o'clock in the afternoon at his employer's Boston office in Matthews street, near Post Office Square. 'At some place between Post Office Square and the stable in Charlestown he was seized with such a loss of memory and mental faculties that he was unable to recognize streets and places, and on account of such disordered mental condition he became lost and unable to direct the horse to the stable.' About 11 o'clock that night Milliken was seen driving the wagon in a private way in Burlington and was helped back to the public highway, whereupon he drove away in the direction of Lowell. At this time Milliken would not speak. At about 6 o'clock the following morning Milliken was found lying in a swamp in Woburn and--with the exception of his head--covered with mud and water. His hat was found on the 'adjacent road' some 200 yards away, and the horse and wagon were found 'by the side of said road about half a mile distant in the direction of Boston.' Milliken was taken to a hospital at Woburn, where he died on October 14th, without recovering his memory. He 'spoke in a delirium only of looking for his horse.' The cause of his death was pneumonia, brought on by cold and exposure while lying in the swamp.
The industrial accident board found: 'That the loss of memory with which the employé, Milliken, was seized was not in itself a fatal disorder, and that he would not have met his death as he did but for the horse and wagon and his effort to get them to the stable.'
The dependent's contention is that Milliken's death was caused by penumonia brought on by his falling into the swamp and lying there all night; that, under these circumstances falling into the swamp and lying there all night was a personal injury which caused his death; and for this she relies...
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