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tort at common law and under the Employers' business with respect to all those in his servLiability Act did not give the measure of ice under any contract of hire. All the protection against injuries and relief for terms of the act are framed upon the basis accidents which present economic conditions that the employer is either wholly within or demand, Its general adoption throughout altogether outside its operation. There is no the commonwealth was the legislative aim. suggestion or phrase warranting the inferYoung v. Duncan, 218 Mass. 346, 349, 106 N.ence that there can be a divided or partial E. 1. This would be frustrated to a certain insurance. extent if employers might be insured under The practical administration of the act renthe act as to a part of their employees and ders it highly desirable that a single rule of remain outside the act as to others.

liability should apply throughout any single [6, 7] A critical examination of the statute business. Otherwise difficult and troublediscloses no purpose to permit partial in- some questions often might arise as to liasurance by employers. On the contrary, its bility or nonliability dependent upon classiframework and its details manifest a design fications of employees and scope of their duto treat the employer wholly within or wholly ties. Litigation as to the line of demarcawithout the act. "Subscriber” means "an tion between those protected by the act and employer who has become a member of the those not entitled to its benefits would be association” or insured under the act, while almost inevitable. Instead of being simple, "employee" includes "every person in the plain and prompt in its operation, such divi. service of another under any contract of hire, sion of insurance would promote complicaexpress or implied, oral or written." Partstions, doubts and delays. 5, § 2. It is provided by part 4, § 20, that (9, 10] The terms of the policy apparently "every subscriber shall, as soon as he secures applying only to the factory at Framingham a policy, give notice,

to all persons are not of much significance so far as the under contract of hire with him that he has employee is concerned. The Workmen's Comprovided for payment to injured employees”; pensation Act fixes the scope of the insurance by section 21, that “every subscriber shall so far as the rights of the employee are afgive notice

to every person with fected. If the employer becomes a subscribwhom he is about to enter into a contract of er, then the rights of the employee cannot hire that he has provided for payment to be narrowed by contract between the employinjured employees. If an employer ceases to er and the insurer. Gould's Case, 215 Mass. be a subscriber he shall

give notice 480, 483, 102 N. E. 693, Ann. Cas. 1914D, 372. thereof

to all persons under con- It may be that the terms of the contract of tract with him

;" and by section 22, insurance might be so narrow as not to bring that "if a subscriber * is required the employer within the act. But the presby any judgment of a court

to pay ent is not such a case. The obligation of the to an employee any damages on account of policy is "to pay the compensation personal injury,

the association provided for by The Workmen's Compensashall pay to the subscriber the full amount of tion Act

to any person such judgment." By part 3, § 17, if a sub- to whom such compensation;

shall scriber enters into a contract for the doing become due." The insurer, therefore, has of its work the employees of such contractor assumed an obligation as broad as the act, or his subcontractor are protected by the and the employer was a subscriber. This act and entitled to its benefits. By part 2, proceeding does not relate to the rights and § 1, every employee who has not given notice duties between the insurer and the employer. of his intention to retain his common-law Decree affirmed. rights, who receives an injury arising out of and in the course of his employment, shall be

(225 Mass. 228) paid compensation "if his employer is a subscriber.” By part 1, $ 3, it is provided that

WATERHOUSE v. WATERHOUSE. the limitation of certain defenses in actions

(Supreme Judicial Court of Massachusetts by employees for personal injuries shall not

Suffolk. Nov. 28, 1916.) apply to actions "for personal injuries sus

DIVORCE 162 - DECREE - CONTINUANCE tained by employees of a subscriber"; and by

STATUTE, section 4, that the Employers' Liability Act

Rev. Laws, c. 152, § 17, providing that the "shall not apply to employees of a subscrib-court may, without entering a decree, cause the er"; while by section 5, “an employee of a libel to be continued upon the docket, make orsubscriber shall be held to have waived his” ders relative to the temporary separation, cus

tody of minor children, etc., does not confer upon common-law rights unless he gives certain the judge, after he has heard the libel and found notices.

that a statutory ground for livorce has been [8] It is clear from those provisions that proved, and that counter charges against the the act is not designed to be accepted in part libelant are not proved, power or discretion to re

fuse to enter a decree and to continue the case and rejected in part. If an employer be- indefinitely. comes a subscriber he becomes a subscriber

[Ed. Note. For other cases, see Divorce, Cent. for all purposes as to all branches of one Dig. § 527; Dec. Dig. Ow162.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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Report from Superior Court, Suffolk Coun-choice or preference of what ought to be ty; John D. McLaughlin, Judge.

done. The decision turns upon the true conSuit for divorce by Lillian D. Waterhouse struction of R. L. C. 152, § 17.2 This section against Martin V. B. Waterhouse. On report does not confer upon the judge, after he has from the Superior Court of a decree continu- heard the libel and decided that the libellant ing the case on the docket, and relevant to is entitled to a decree, power to refuse to custody and support of minor children at the enter a decree and to continue the case indefrequest of petitioner. Decree reversed and a initely. A proceeding for divorce is not acdecree ordered, granting a divorce with such cording to the common law. It is in this provision as to custody and support of minor commonwealth entirely the creature of statchildren as the court may direct.

ute. Robbins v. Robbins, 140 Mass. 528, 530, H. T. Richardson, of Boston, for libellant. 5 N. E. 837, 54 Am. Rep. 488. The instant

section was not intended to render the grant.

ing of libels in all cases entirely discretionary RUGG, C. J. This is a libel for divorce. with the court. When a case has been heard There was a finding in the superior court that and a finding made that the libellant bas cruel and abusive treatment, one of the caus- proved a case for divorce and has not been es for divorce alleged in the libel, was sus- guilty of marital infidelity, then the granting tained by evidence of acts committed by the of the divorce is not discretionary. It is libelee in and prior to 1913, when a separa- quite inconsistent with the general tenor of tion occurred; that thereafter the libellant

our statutes relating to divorce, and the escondoned this cause upon condition that, upon tablishment of several causes as absolute her returning to live with him, he would treat grounds for divorce, to construe this section her properly; and that in 1914 the libellee

as conferring a wholly unrestrained volition committed a breach of the condition on which upon the judge to refuse to grant a divorce the libellant had condoned the previous mis- when every prerequisite prescribed by the conduct of the libellee; and that thereupon Legislature for obtaining a divorce has been her right to prosecute the libellee for cruel (proved to his satisfaction. Such an interpreand abusive treatment was revived. The tation would be substituting the preferences libellee filed an answer alleging by way of lof men for a rule of law. This section is not recrimination that the libellant was guilty of susceptible of that meaning. Without underadultery. While finding against this allega- taking to state more specifically than is necestion, the judge found that in her behavior sary for the decision of this case the scope toward another man she had been regardless of section 17, it is enough to say that it of ordinary propriety. There are two young does not apply to a case like the present. In children, one of whom is now in the custody vlew of the findings made by the judge, the of the mother, and the other of he father. A decision in De Ferrari v. De Ferrari, 220 decree was entered, which is printed in a Mass. 38, 107 N. E. 404, affords no support for footnote. 1

the decree which here was entered. The question presented is whether, when In accordance with the terms of the report, it has been found that a statutory ground the decree may be reversed, and a decree for divorce has been proved, and counter entered granting the divorce on the ground charges against the libellant are not proved, of cruel and abusive treatment, together with the judge has a right to refuse to grant the such provision as to the custody and support divorce and continue the libel from time to of the minor children as the court may direct. time without final action simply upon his own So ordered.

1 "This case came on to be heard at this sitting, 1 "Section 17. The court may, without entering a and was argued by counsel, and thereupon, upon decree of divorce, cause the libel to be continued consideration thereof, it is ordered, adjudged and upon the docket from time to time, and during such decreed that said libel be continued on the docket continuance may make orders and decrees relative of sald court, and that the libellant have the care to a temporary separation of the parties, the sepand custody of their minor child Donald, and that arate maintenance of the wife and the custody and the libellee have the care and custody of their minor support of minor children. Such orders and dechild Richard; tbat both libellant and libellee bave crees may be changed or annulled as the court may the right to see the child not in their respective determine, and shall, while they are in force, supercare and custody at any reasonable time; that sede any order or decree of the probate court unthe libellee pay to the libellant within thirty days der the provisions of section thirty-three of chapfrom the date hereof nine dollars ($9), and in ad- ter one hundred and afty-three, and may suspend dition the sum of four dollars ($4) per week on each the right of sald court to act under the provisions Saturday, beginning July 1, 1916."

of said section."

(225 Mass. 203)

part of the record, the finding of the Committee In re CARROLL,

of Arbitration that, after some correspondenco

and interviews with claimant's counsel and the In re AMERICAN MUT. LIABILITY office of the Industrial Accident Board, she INS. CO.

filed a claim for compensation on a given date,

was without support in evidence, since any such (Supreme Judicial Court of Massachusetts. documentary evidence could not be acted upon Suffolk. Nov. 28, 1916.)

by the committee or the board without being 1. MASTER AND SERVANT 398 WORK

formally put in evidence. MEN'S COMPENSATION ACT – DATE OF “Oc

(Ed. Note.-For other cases, see Master and

Servant, Dec. Dig. Om 105(1).]
CURRENCE.
Where petitioner testified that she felt

Appeal from Superior Court, Suffolk something snap in her back when she lifted a

County. heavy box, a subsequent date, when she became incapacitated to do any work on account of the

Proceedings under the Workmen's Compeninjury, was not the date of its "occurrence,” sation Act by Mary Carroll for compensation and her claim for compensation should have for personal injuries, opposed by the Ameribeen brought within six months from the first occurrence of her injury, as required by Work- can Mutual Liability Insurance Company, men's Compensation Act (Laws 1911, c. 751) pt. the insurer. Compensation was awarded, the 2 % 15.

award confirmed by the Superior Court, and (Ed. Note.-For other cases, see Master and from the decree the insurer appeals. Decree Servant, Dec. Dig. 398.

reversed, and petition recommitted to the For other definitions, see Words and Phrases, Industrial Accident Board for further hearSecond Series, Occurrence.)

ing. 2. MASTER AND SERVANT Om398—WORKMEN'S COMPENSATION ACT FAILURE TO CLAIM

Sawyer, Hardy, Stone & Morrison, of BosCOMPENSATION—"MISTAKE.

ton (E. C. Stone, of Boston, of counsel), for When the immediate result of a personal injury, to an employé is apparently slight, so appellant. Thos. F. Higgins, of Fall River, that she elects not to present a claim for com- for appellee. pensation, and later on serious results caused by the injury come into existence, it may be LORING, J. This is an appeal by the in. found that failure to claim compensation within six months of the injury was occasioned by ourer from a decree directing it to pay to "mistake," within Workmen's Compensation one Mary Carroll the sum of $111.21 being Act, pt. 2, § 23, as added by St. 1912, c. 571, one-half her average weekly wages from 15, providing that failure to make claim within April 7, to September 27, 1915; and in adsix months shall not bar proceedings under the dition to pay her $4.50 a week from Septemact if occasioned by mistake.

[Ed. Note.-For other cases, see Master and ber 27, 1915, until this order is revised unServant, Dec. Dig. m398.

der St. 1911, c. 751, pt. 3, § 12. For other definitions, see Words and Phrases, Mary Carroll was an employee of a manuFirst and Second Series, Mistake.]

facturing company of which the respondent 3. MASTER AND SERVANT Om398-W02KMEN'S | insurance company was the insurer. On Oc

COMPENSATION ACT FAILUXE TO CLAIM tober 21, 1912, she hurt her back by lifting
COMPENSATION-MISTAKE-TIME FOB SUBSE-
QUENT FILING OF CLAIM-STATUTE.

a box weighing some 200 pounds. The CommitUnder the Workmen's Compensation Act, tee of Arbitration found that this was an inpt. 2, § 23, providing that failure to claim com jury arising out of and in the course of her pensation within six months of occurrence of injury shall not bar proceedings under the act, employment. She went home and was unif occasioned by mistake, or other reasonable able to do any work for four weeks. On the cause, the claim must be filed within a reason. expiration of that time, namely, on November able time after the mistake is discovered, and, 18, 1912, she returned to work. Thereafter in deciding what

is a reasonable time, all the she continued to work for her employer until circumstances, including the insurer's rights, as well as those of petitioner, are to be taken into April 7, 1915. During this period from time account.

to time she was not able to work and in this (Ed. Note. For other cases, see Master and way she lost 112 days in all. On April 7, Servant, Dec. Dig. 398.)

1915, she found she was no longer able to 4. MASTER AND SERVANT 415_WORKMEN'S

work. She then left her employment and COMPENSATION ACT-EVIDENCE-REPORT OF EMPLOYÉ.

since then has done no work. At no time did The Industrial Accident Board has the she file a written notice of her injury. But right to act on the statement of an injured em- the manufacturing company sent a report of ploye's average wages made in the report of the the accident to the Industrial Accident Board accident by the employer to it; any report on file with the board may be acted upon either by on the day after the accident, namely, on it or the Committee of Arbitration without be- October 22, 1912. She filed a claim for coming formally put in evidence.

pensation on July 6, 1915. [Ed. Note.-For other cases, see Master and

It appeared from her testimony (and both Servant, Dec. Dig. Om415.)

the Committee of Arbitration and the In5. MASTER AND SERVANT Ow405(1) - WORK dustrial Accident Board gave credit to her

MEN'S COMPENSATION ACT EVIDENCE
CORRESPONDENCE.

story) that when she lifted the box something Where the evidence before the Committee of cracked in her back, the sight left her eyes Arbitration did not disclose that there was any and she became dizzy and faint and that correspondence or interviews between claimant's counsel and the office of the Industrial she had to lean on a fence in order to walk Accident Board, no such papers being made a to the car which took her home. When she

ProFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

got home she immediately went to bed. Dur-, ployer had knowledge of the injury and that ing the four weeks she was away from the the claim for compensation was filed and mill she was in bed for a day and a half and made seasonably within the requirements of every day had to lie in bed more or less on part 3, 88 15 and 16." We assume that by account of pain in her back. Her husband this is meant within the requirements of was sick and she had only one boy then at part 2, § 15. The board then affirmed and work. Under these circumstances she tes adopted the findings and decision of the Comtified there was nothing left for her to do mittee of Arbitration "with this exception, but to go to work when she did. She gave that we find that the average weekly wages various reasons for not making a claim for of the employee were $9.50 as shown by the compensation which are not now material. report of the injury." By their decision they The claim for compensation was heard by a found that there was due to the employee Committee of Arbitration on September 27, the sum of $111.21, being one-half the average 1915. The findings of the committee were in weekly wages from April 7, 1915, to the date substance these: On April 7, 1915, when the of the hearing on September 27, 1915, and petitioner finally stopped work, she was no that a weekly payment of $4.50 should conlonger able to work; "her back trouble, at- tinue from that date until the order was retacks of nausea, loss of weight and strength vised under St. 1911, C 751, pt. 3, & 12. which caused her to give up her work on The finding "that the employer had knowl. April 7, 1915, were the result of the injury edge of the injury” was based on a report sustained on October 21, 1912, probably due made to the Accident Board by the manufacto the effect of a dislocated right kidney in turing company on October 22, 1912. In the a somewhat weakened condition, though not report the description of the injury was in troubling her before said injury." The re these words: port of the committee ended in these words: “Mrs. Carroll was attempting to put a truck

“The committee rules that her claim for com- she wanted to use over a piece of shafting that pensation was filed and made seasonably on had been left on the floor which caused the July 6, 1915, because made within a reasonable strain to her back." time following the period when her practical As to the nature of the injury the report disability began resulting from the injury on stated: April 7, 1915; that she thereafter made her claim as soon as she learned from her physician

“Dr. Blanchette is attending Mrs. Carroll and counsel as to the cause of her disabled now and will report his findings to us later." condition which compelled her finally to aban Her average weekly earnings are stated in don work."

that report to be $9.50. In an earlier part of the report the com It is not clear what the grounds are on mittee made this finding: In April, 1915, which the committee and the board proceeded her physician “diagnosed ber trouble as a in ruling that the claim iled July 6, 1915, movable or dislocated kidney caused by the based on an injury sustained on October 21, injury of October 21, 1912. After some cor- 1912, "was filed and made seasonably within respondence and interviews following this the requirements" of the act, to quote the with her counsel and the office of the Indus- terms of the finding made by the board upon trial Accident Board, she filed her claim for this point. In addition to this special findcompensation on July 6, 1915.” With re ing the board affirmed and adopted the findspect to the two weeks beginning November 4 ings and decision of the Committee of Arbi. and ending November 18, 1912, the committee tration.

This general finding and adoption made this finding:

of the findings of the committee do not add “She did not claim compensation for the brief to the specific finding mentioned above. We time she was out of work immediately following the injury, a compensation period of two weeks, have already stated the findings of the com because she did not care to run the risk of los mittee in this regard. ing her position by so doing, which she believed

[1] The learned counsel for the petitioner to be the case. “Her compensation period immediately following the injury, for a disability has undertaken to uphold this conclusion of of two weeks, was so small that the committed the board on the authority of Johnson's finds that the fact she did not make a claim at Case, 217 Mass 388, 104 N. D. 735. In that the time of this brief incapacity should not prejudice or prevent her rights when her real

case it was held that the date of an injury and practical disability arose on April 7, 1915.” consisting of lead poisoning caused by the

The committee decided that the petitioner absorption of lead in the system was the was entitled to compensation of $5 a week date "when, elimination failing, the poison for total disability (1) from November 4, 1912, stored up manifested itself in the personal to November 18, 1912; and (2) from April 7, injury and the incapacity which resulted 1915, to September 27, 1915; and (3) that therefrom." But this case does not come said weekly payment should continue during within that decision. The injury here occurber disability.

red when the petitioner lifted the box on On appeal the Industrial Accident Board October 21, 1912. In the case at bar the day found that the evidence (stating some of it) (namely April 7, 1915) when the petitioner "all sustain the claim that her condition is became incapacitated to do any work was connected by an unbroken chain of causation not the date of the occurrence of the injury with the injury of October 21, 1912. The evi- but was the date of the final result of the

On the findings made by the board the to act upon statements made in the report conclusion that the claim was seasonably of the accident made by the employer to the brought was as matter of law not correct Industrial Accident Board. We think that and the decree must be reversed.

this is too technical a view of the matter. [2] But we are of opinion that the case The Committee of Arbitration and the Indusshould be recommitted to the board for fur-trial Accident Board are lay boards and the ther hearing. We are of opinion that on the proceedings before them ought not to be evidence before the board a finding could hampered by technicalities. We are of opinhave been made which would have resulted ion that any report which is on file with the in the decision that tbe claim would have Industrial Accident Board may be acted upon been seasonably made if it had been filed as either by the committee or by the board soon as the petitioner found out that she without their formally being put in evidence. was totally incapacitated for work for an in The sum to be paid to the petitioner if a definite period of time; that is to say, if the sum is to be paid her ought to be $4.75 not claim had been filed immediately after April / $4.50 a week. 7, 1915. When the immediate result of a [5] We are however of opinion that the personal injury is apparently slight and for contention of counsel for the insurer is corthat reason the person injured elects not to rect as to the finding of the committee that present a claim under the Workmen's Com- "after some correspondence and interviews pensation Act and later on serious results following this (diagnosis of the petitioner's caused by the injury come into existence it trouble as being a movable kidney caused by well may be found that failure to make a the injury of October 21, 1912) with her coun. claim within six months of the injury was sel and the office of the Industrial Accident occasioned by mistake within part 2, § 23 (as Board, she filed a claim for compensation added by St. 1912, c. 571, 8 5). No such find

on July 6, 1915." The evidence before the ing was made in the case at bar and for that committee does not disclose that there was reason the finding of the committee and of the board that the claim was seasonably counsel and the office of the Industrial Ac

any correspondence or interviews with her made in the case at bar cannot be sustained. But the evidence in this case warranted such cident Board. No such papers (if indeed it a finding.

were possible) are made a part of the record

in this case. This evidence stands on a difIf such a inding were made in the case at bar the petitioner would be met with the ferent footing from the report of the employer further difficulty that her claim was not to the Industrial Accident Board. made immediately after April 7, 1915. Upon

The result is that the decree must be rethe evidence it would seem that she became versed, the petition must be recommitted to aware then that she had a floating kidney the Industrial Accident Board for further and would be totally incapacitated from work hearing on the question whether this case for an indefinite period of time. In place of comes within part 2, § 23, and if it does filing a claim then she did not file one until whether the claim filed on July 6, 1915, was the last day of the next succeeding six duly filed within the act under the rule stated months.

above. At this further hearing further evi(3) The only provision of the act is that dence may be introduced by both parties. the failure to make a claim within six months

It is of the occurrence of the injury "shall not be

So ordered. a bar to the maintenance of proceedings under this act if it be found that it was occa

(225 Mass. 192) sioned by mistake or other reasonable cause." There is nothing in the act which provides

COMMONWEALTH v. MCCARTHY. when a claim must be filed in case it is found

(Supreme Judicial Court of Massachusetts. that the failure to make it within six months

Hampshire. Nov. 28, 1916.) of the occurrence of the injury was occasioned by mistake. Under these circum- 1. LICENSES 13 PLUMBERS “MASTER stances as matter of construction of the act PLUMBER." the claim must be filed within a reasonable carried the stock of materials usual in a plumb

One having a place of business where he time after the mistake is discovered, and in ing shop and necessary for doing the plumbing deciding what is a reasonable time all the business, and employing journeyman plumbers, circumstancces of the case including the with whom he had worked himself, was conrights of the insurer as well as the rights of ducting business as a “master plumber" within

St. 1909, c. 536, § 9, defining “master or emthe petitioner are to be taken into account. ploying plumber" to be “a plumber having a

[4] Counsel for the insurer has contended regular place of business and who himself, or that there was nothing before the board by journeymen plumbers in his employ, per

forms plumbing work." which authorized it to find "that the average

[Ed. Note.- For other cases, see Licenses, weekly wages of the employee were $9.50 as Cent Dig. $ 24; Dec. Dig. Om 13. shown by the report of the injury." He con For other definitions, see Words and Phrases, tends that the Accident Board has no right Second Series, Master Plumber.]

For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes

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