Sundine's Case ( 1914 )

Sheddon, J.

It is provided by statute (St. 1911, c. 751, Part III, § 17) that “if a subscriber enters into a contract, written or oral, with an independent contractor to do such subscriber’s work . . . and the association would, if such work were executed by employees immediately employed by the subscriber, be liable to pay compensation under this act to those employees, the association shall pay to such employees any compensation which would be payable to them under this act” if the independent contractor were a subscriber. By the word “association” is meant the Massachusetts Employees’ Insurance Association, Part V, § 2, of the saíne act; and this insurance company is under the same liability that the association would have been. St. 1912, c. 571, § 17. It follows that the petitioner has the same rights against this insurance company as if it had directly insured her employer Olsen.

The insurer does not deny this, but it contends that the petitioner’s injury did not arise “out of and in the course of” her employment within the meaning of Part II, § 1, of the act first referred to. This is because she was injured at about noon, after she had left the room in which she worked for the purpose of getting a lunch, and upon a flight of stairs which, though affording the only means of going to and from her workroom, was yet not under the control either of Olsen, her employer, or of F. L. Dunne and Company, for whose work Olsen was an independent contractor.

The first contention, that she was not in the employ of Olsen while she was going to lunch, cannot be sustained. Her employment was by the week. It would be too narrow a construction of the contract to say that it was suspended when she went out for this merely temporary purpose and was revived only upon her return to the workroom. It was an incident of her employment to go out for this purpose. Boyle v. Columbian Fire Proofing Co. 182 Mass. 93, 102. The decisions upon similar questions under the English act are to the same effect. Blovelt v. Sawyer, [1904] 1 K. B. 271, which went on the ground that the dinner hour, though not paid for, was yet included in the time of employment. Moore v. Manchester Liners, 3 B. W. C. C. 527, where the House of Lords reversed the decision of the Court of Appeal, reported in [1909] 1 K. B. 417, and held, following the dissenting opinion of Moulton, L. J., that a temporary absence by permission, though apparently of longer duration than would have been likely in the case before us, did not suspend the employment, and that an injury occurring during such a temporary absence arose “out of and in the course of” the employment. Gane v. Norton Hill Colliery Co. 2 B. W. C. C. 42, and [1909] 2 K. B. 539. Keenan v. Flemington Coal Co. 40 Sc. L. R. 144. MacKenzie v. Coltness Iron Co. 41 Sc. L. R. 6.

Nor do we regard it as decisive against the petitioner that she was injured while upon stairs of which neither Olsen nor.F. ,L. Dunne" and~Company had control, though they and their employeesThad the right to use them. These stairs~were the only~ means available for going to aHcTfrom the premises where she was employed, the means which she practically was invited by OIsen andljy^.LJ^imne and'Company to use. In this^respecf/tEe case resembles Moore v. Manchester Liners, ubi supra; and that case, decided under the English act before the passage of our statute, must be regarded as of great weight. McNicol’s Case, 215 Mass. 497, 499. It is true that before the passage of St. 1911, c. 751, the petitioner could not have held her employer for this injury. Hawkes v. Broadwalk Shoe Co. 207 Mass. 117. But that now is not a circumstance of much importance; for one of the purposes of our recent legislation was to increase the right of employees to be compensated for injuries growing out of their employment.

It was a necessary incident of the employee’s employment to use these stairs. We are of opinion that according to the plain and natural meaning of the words an injury that occurred to her while she was so using them arose “out of and in the course of” her employment. The decree of the Superior Court must be affirmed.

So ordered.