Pigeon v. Employers' Liability Assur. Corp.

• Citation: 102 N.E. 932,216 Mass. 51
• Parties: PIGEON v. EMPLOYERS' LIABILITY ASSUR. CORPORATION, Limited.
• Decision Date: 22 October 1913
• Court: United States State Supreme Judicial Court of Massachusetts

216 Mass. 51

102 N.E. 932

PIGEON v. EMPLOYERS' LIABILITY ASSUR. CORPORATION, Limited.

Supreme Judicial Court of Massachusetts, Hampden.

October 22, 1913

Oct 22, 1913.

COUNSEL

Geo F. Leary, Thos. C. Malley, and Geo. D. Cummings, all of Springfield, for plaintiff.

Brooks & Hamilton, of Springfield, for respondent.

OPINION

RUGG C.J.

This is a proceeding under the Workmen's Compensation Act. St. 1911, c. 751.

1. The Industrial Accident Board have found that Joseph Pigeon came to his death through an injury arising out of and in the course of his employment by Vila A. Shaw. The first point argued is whether the finding that he was in the employ of Shaw at the time of the injury was warranted by the evidence. The finding stands upon the same footing as the finding of a judge or a verdict of a jury. It is not to be set aside if there is any evidence upon which it can rest.

There was evidence tending to show that the decedent was in the general employ of Shaw, who on the day in question had sent him with a horse and cart to work for the city of Springfield. Another horse and cart were sent, but without a driver. There carts were used to clean sweepings from the streets. It was the course of work for the decedent to drive one horse and cart to a dump while the other cart was being loaded, so that he was driving one or the other all the time. His general instructions as to the place and kind of work to be done were given by the superintendent of the city of Springfield. But it was the deceased's duty, under his general employment by Shaw (as testified to by Shaw), 'to water the horse when he had a chance to water him; it was his duty to water the horse when he had a chance,' and that he 'had the care of the horse from the time he took it from the barn until he brought it back at night.' Just before 12 o'clock on the day of the injury the deceased told the man in charge of the street sweepers in substance that he would take one team and go home to dinner, and on the way to dinner would water the horse. The decedent's home was in the direction of the nearest watering trough, but a considerable distance beyond it. He drove away in that direction, but before reaching the watering trough was fatally injured by the running away of the horse. It is not contended that the deceased had a right to use the horse to go home to his dinner. He carried grain for the horses and it was his duty to feed them during the noon cessation of work. This evidence warranted a finding that Shaw did not lend the decedent absolutely and unqualifiedly into the service of the city of Springfield, but that he retained the general direction of his conduct except in so far as it was surrendered to the city, and that this retention of control included the care of the horses, at least to the extent of seeing that they were watered. It was said by Knowlton, C.J., in Shepard v. Jacobs, 204 Mass. 100, 112, 90 N.E. 392, 393 (26 L. R. A. [N. S.] 442, 134 Am. St. Rep. 648): 'In determining whether, in a particular act, he is the servant of his original master or of the person to whom he has been furnished, the general test is whether the act is done in business of which the person is in control as a proprietor, so that he can at any time stop it or continue it, and determine the way in which it shall be done, not merely in reference to the result to be reached, but in reference to the method of reaching the result.' Applying this to the evidence at bar, the finding was warranted that so far as the watering of the horse was concerned the decedent was acting as the agent of his general employer and not of the city of Springfield. It was in the performance of his general duty and not in the transportation of material, as to which alone he worked for the city and was subject to its order. It commonly has been held in cases where a horse and driver have been let by a general employer into the service of another that the driver is subject to the control and therefore is the agent of his general employer as to the care and management of the horse and vehicle. See Shepard v. Jacobs, 204 Mass. 110, 90 N.E. 392, 26 L. R. A. (N. S.) 442, 134 Am. St. Rep. 648, and cases cited; Hussey v. Franey, 205 Mass. 413, 91 N.E. 391, 137 Am. St. Rep. 460; Corliss v. Keown, 207 Mass. 149, 93 N.E. 143; Waldock v. Winfield (1901) 2 K. B. 596; Hunt v. N. Y., N.H. & H. R. R., 212 Mass. 102, 107, 98 N.E. 787, 40 L. R. A. (N. S.) 778. Cases relied on by the Insurance Company, like Hasty v. Sears, 157 Mass. 123, 31 N.E. 759, 34 Am. St. Rep. 267, are distinguishable. In that class of cases no property of the general employer was intrusted to the agent to be used in the service of the new employer.

2. The next point argued is that the evidence did not warrant a finding that the injury resulting in the decedent's death arose out of and in the course of his employment by Shaw. As has been pointed out, there was evidence to the effect that it was the decedent's duty to water the horse and that he was on his way to perform that duty at the time of the injury. Though he may have had at the same time the purpose to do something else not within the scope of his employment after watering the horse, that fact does not prevent the service actually rendered at the moment from being in the course of his employment. His custody of the horse for the purpose of relieving his thirst was in the performance of the business of his general employer. His service in doing this was not destroyed by his unexecuted intention to abandon his master's business after performing this duty and to take the horse for his own convenience on a journey of his own. This branch of the case is covered by Hayes v. Wilkins, 194 Mass. 223, 80 N.E. 449, 9 L. R. A. (N. S.) 1033, 120 Am. St. Rep. 549, and Reynolds v. Denholm, 213 Mass. 576, 100 N.E. 1006. See Fleischner v. Durgin, 207 Mass. 435, 93 N.E. 801, 33 L. R. A. (N. S.) 79, 20 Ann. Cas. 1291.

3. A question is raised as to the admissibility of evidence received at the hearing. Although a proceeding under the Workmen's Compensation Act is not an equity cause, the practice, speaking broadly, follows that prevailing in equity and not that in law. Gould's Case, 102 N.E. 693.

It is plain from sections 7 and 10, part 3, of the act, as amended by St. 1912, c. 571, §§ 12 and 13, that the Commission on Arbitration shall make rulings of law and that such rulings of law shall be subject to review by the Industrial Accident Board, whose decisions in turn shall be subject to review by the court, and that after the entry of a decree in the superior court all proceedings shall be the same as though rendered 'in a suit duly heard and determined by said court,' except that there shall be no appeal upon findings of fact. Part 3, § 11, of the act. In this respect the procedure marked out by the act more nearly conforms to the practice where the hearing is before the court than to that where it is by a master. It was said in Knowles v. Knowles, 205 Mass. 290, at page 292, 91 N.E. 213, that 'it is the general rule that objections to rulings made by a single judge at the hearing of an equity...