that the employer is either wholly within or altogether outside its operation. There is no suggestion or phrase warranting the inference that there can be a divided or partial insurance.

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 demand. Its general adoption throughout the commonwealth was the legislative aim. Young v. Duncan, 218 Mass. 346, 349, 106 N. E. 1. This would be frustrated to a certain extent if employers might be insured under the act as to a part of their employees and remain outside the act as to others.

The practical administration of the act renders it highly desirable that a single rule of 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 diviservice of another under any contract of hire, sion of insurance would promote complicaexpress or implied, oral or written." Part tions, 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; * 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 paid compensation "if his employer is a subscriber." By part 1, § 3, it is provided that the limitation of certain defenses in actions by employees for personal injuries shall not apply to actions "for personal injuries sustained by employees of a subscriber"; and by 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 subscriber shall be held to have waived his" common-law rights unless he gives certain

notices.

*

*

* shall

(225 Mass. 228)

WATERHOUSE v. WATERHOUSE. (Supreme Judicial Court of Massachusetts. Suffolk. Nov. 28, 1916.)

DIVORCE

STATUTE.

162- DECREE CONTINUANCE

libel to be continued upon the docket, make orders relative to the temporary separation, custody of minor children, etc., does not confer upon the judge, after he has heard the libel and found that a statutory ground for divorce has been proved, and that counter charges against the fuse to enter a decree and to continue the case libelant are not proved, power or discretion to reindefinitely.

[8] It is clear from those provisions that the act is not designed to be accepted in part and rejected in part. If an employer becomes a subscriber he becomes a subscriber [Ed. Note.-For other cases, see Divorce, Cent. for all purposes as to all branches of one Dig. 8 527; Dec. Dig. 162.]

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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 E. 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. Jute. 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 granting 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 has 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 of 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 view of the findings made by the judge, the of the mother, and the other of the 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, "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 said 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; that both libellant and libellee have 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 fifty-three, and may suspend dition the sum of four dollars ($4) per week on each the right of said court to act under the provisions Saturday, beginning July 1, 1916." of said section."

It appeared from her testimony (and both the Committee of Arbitration and the In405(1)-WORK-dustrial Accident Board gave credit to her 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

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the claim for compensation was filed and made seasonably within the requirements of part 3, §§ 15 and 16." We assume that by this is meant within the requirements of part 2, § 15. The board then affirmed and adopted the findings and decision of the Committee of Arbitration "with this exception, that we find that the average weekly wages of the employee were $9.50 as shown by the report of the injury." By their decision they found that there was due to the employee the sum of $111.21, being one-half the average weekly wages from April 7, 1915, to the date of the hearing on September 27, 1915, and that a weekly payment of $4.50 should continue from that date until the order was revised under St. 1911, c. 751, pt. 3, § 12.

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 mill she was in bed for a day and a half and every day had to lie in bed more or less on account of pain in her back. Her husband was sick and she had only one boy then at work. Under these circumstances she testified there was nothing left for her to do but to go to work when she did. She gave various reasons for not making a claim for compensation which are not now material. The claim for compensation was heard by a Committee of Arbitration on September 27, 1915. The findings of the committee were in substance these: On April 7, 1915, when the petitioner finally stopped work, she was no longer able to work; "her back trouble, attacks of nausea, loss of weight and strength which caused her to give up her work on April 7, 1915, were the result of the injury sustained on October 21, 1912, probably due to the effect of a dislocated right kidney in a somewhat weakened condition, though not troubling her before said injury." The report of the committee ended in these words:

"The committee rules that her claim for compensation was filed and made seasonably on July 6, 1915, because made within a reasonable time following the period when her practical disability began resulting from the injury on April 7, 1915; that she thereafter made her claim as soon as she learned from her physician and counsel as to the cause of her disabled condition which compelled her finally to abandon work."

In an earlier part of the report the committee made this finding: In April, 1915, her physician "diagnosed her trouble as a movable or dislocated kidney caused by the injury of October 21, 1912. After some correspondence and interviews following this with her counsel and the office of the Industrial Accident Board, she filed her claim for compensation on July 6, 1915." With respect to the two weeks beginning November 4 and ending November 18, 1912, the committee made this finding:

"She did not claim compensation for the brief time she was out of work immediately following the injury, a compensation period of two weeks, because she did not care to run the risk of los ing her position by so doing, which she believed to be the case. "Her compensation period immediately following the injury, for a disability of two weeks, was so small that the committee finds that the fact she did not make a claim at the time of this brief incapacity should not prejudice or prevent her rights when her real and practical disability arose on April 7, 1915." The committee decided that the petitioner was entitled to compensation of $5 a week for total disability (1) from November 4, 1912, to November 18, 1912; and (2) from April 7, 1915, to September 27, 1915; and (3) that said weekly payment should continue during ber disability.

On appeal the Industrial Accident Board found that the evidence (stating some of it) "all sustain the claim that her condition is connected by an unbroken chain of causation with the injury of October 21, 1912. The evi

The finding “that the employer had knowledge of the injury" was based on a report made to the Accident Board by the manufacturing company on October 22, 1912. In the report the description of the injury was in these words:

"Mrs. Carroll was attempting to put a truck she wanted to use over a piece of shafting that had been left on the floor which caused the strain to her back."

As to the nature of the injury the report stated:

"Dr. Blanchette is attending Mrs. Carroll now and will report his findings to us later." Her average weekly earnings are stated in that report to be $9.50.

It is not clear what the grounds are on which the committee and the board proceeded in ruling that the claim filed July 6, 1915, based on an injury sustained on October 21, 1912, "was filed and made seasonably within the requirements" of the act, to quote the terms of the finding made by the board upon this point. In addition to this special finding the board affirmed and adopted the findings and decision of the Committee of Arbitration. This general finding and adoption of the findings of the committee do not add to the specific finding mentioned above. We have already stated the findings of the committee in this regard.

[1] The learned counsel for the petitioner has undertaken to uphold this conclusion of the board on the authority of Johnson's Case, 217 Mass. 388, 104 N. E. 735. In that case it was held that the date of an injury consisting of lead poisoning caused by the absorption of lead in the system was the date "when, elimination failing, the poison stored up manifested itself in the personal injury and the incapacity which resulted therefrom." But this case does not come within that decision. The injury here occurred when the petitioner lifted the box on October 21, 1912. In the case at bar the day (namely April 7, 1915) when the petitioner became incapacitated to do any work was not the date of the occurrence of the injury but was the date of the final result of the

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