Howard's Case , 218 Mass. 404 ( 1914 )

Hammond, J.

Upon this statement of agreed facts the Industrial Accident Board might have found that Howard, the employee, received his injury while engaged in trimming a tree; that in this trimming he was acting under the order of Kennedy; that Kennedy in giving the order was acting under the order of Mattau, the superintendent of the electric company, and that Mattau was acting as such superintendent in giving the order “with the backing of the company,” or in other words that at the time Howard received his injury he was acting in obedience to the order of the electric company given to him through Mattau and Kennedy, its duly authorized officers or agents; that the town of Stoughton was in no way engaged in this work, that there was no “lending” of Howard to the town by the company, and that Howard when hurt was doing work as an employee of the company and that he so supposed.

The insurer contends that, even if Howard was acting as an employee of the company, still the business of trimming this tree was casual and not in the usual line of his work. In support of this it is urged that he was employed as a tree trimmer of the company; that the purpose of the company in employing men to trim trees “was to keep its wires clear,” and that the company had no interest in trimming trees except those through which its wires were run.

By St. 1911, c. 751, Part V, § 2, the statute under which the compensation is claimed, the word employee is defined to “include every person in the service of another under any contract of hire, express or implied, oral or written, except one whose employment is but casual, or is not in the usual course of the trade, business, profession or occupation of his employer.” In the present case Howard was employed to trim trees and was to receive his orders from the company through Kennedy. It was no part of his business to inquire into the right of the company to trim any particular tree. He was to receive his orders from Kennedy and to obey them. At the time he was hurt he was doing what he had been hired to do. The work was not casual.

Nor was it outside the “usual course of the trade, business, profession or occupation” of the company. These words in the statute must be construed reasonably, and we are of opinion that they should be held inapplicable to a case like this, where the employee is engaged in the business for which he was hired and has no reason to think there is any change in the business, and where there is no change of employer.

Decree affirmed.