Smith's Case
| Decision Date | 20 June 1950 |
| Parties | SMITH'S CASE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued April 5 1950.
L. F. Burke Worcester, E. Burke, Worcester, for Employee.
P. H. Grady, City Solicitor, Worcester, for City of Worcester.
Before QUA, C. J and LUMMUS, WILKINS, WILLIAMS and COUNIHAN, JJ.
This is a claim for compensation under G.L. (Ter.Ed.) c. 152, for an injury received on December 24, 1947. The claimant testified that she was employed by the city of Worcester 'doing housework at the homes' of aged people on welfare--'cleaning and straightening out their houses.' On Monday she would visit the welfare department of the city and receive a list of the places to be visited by her during the week. On Wednesday, the day of her injury, the home to be visited by her was Mrs Petit's at 525 Park Avenue. She left her home that morning at 7 a. m. On leaving the bus in which she had been riding she walked toward her destination, fell on an icy sidewalk, and was injured. She was supposed to be at work at Mrs. Petit's at 8:30 a. m. and was supposed to get through at 4 p. m. She had regular working hours, 8:30 a. m. to 4 p. m. After her injury she was assisted by a passerby and arrived at the Petit home about 8:30 a. m.
The single member made findings of fact substantially in accord with the above testimony and awarded the claimant compensation. His findings and decision were affirmed and adopted by the reviewing board. The case is here on appeal from the decree of the Superior Court which dismissed the claim for compensation. It appears from the record, which states that 'all the material evidence is reported,' that the testimony of the claimant was the only evidence offered concerning the nature and terms of her employment and the occurrence of her fall. There being no evidence by way of contradiction of qualification, she is bound by her testimony. Goodwin v. E. B. Nelson Grocery Co., 239 Mass. 232, 233, 132 N.E. 51; McCarthy v. Simon, 247 Mass. 514, 519, 142 N.E. 806; Howe v. City of Boston, 311 Mass. 278, 281, 41 N.E.2d 1; Noble v. Greenbaum, 311 Mass. 722, 725, 42 N.E.2d 823.
The question for decision is whether the claimant is entitled to compensation under that part of G.L. (Ter.Ed.) c. 152, § 26, as appearing in St. 1943, c. 529, § 8, which provides for payment for an injury 'arising out of an ordinary risk of the street while actually engaged, with his employer's authorization, in the business affairs or undertakings of his employer.' The possibility of falling on an icy sidewalk, such as the one on which the claimant fell, clearly is an 'ordinary risk of the street.' See Donahue's Case, 226 Mass. 595, 116 N.E. 226, L.R.A.1918A, 215. The difficulty is to find any evidence that at the time of the claimant's fall she was actually engaged in her employer's business. The claimant's hours of labor were from 8:30 a. m. to 4 p. m. On the day of her injury she was required to work during those hours at a definite place, Mrs. Petit's at 525 Park Avenue. There is no evidence that she was to be paid for any time other than for those hours when she was to work at Mrs. Petit's. She was injured at some time before 8:30 a. m. when going to her place of work.
The case is governed by the principle of those cases where compensation has been denied to an employee injured while going to or from work. See Fumiciello's Case, 219 Mass. 488, 107 N.E. 349; Rourke's Case, 237 Mass. 360, 129 N.E. 603, 13 A.L.R. 546; Chernick's Case, 286 Mass. 168, 189 N.E. 800.
The fact that the claimant was to work at...
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