Bradford's Case , 319 Mass. 621 ( 1946 )

Spalding, J.

The employee was a dishwasher in the Lakeville State Sanatorium. On April 3, 1940, during working hours, he sustained an injury for which he seeks compensation. The injury occurred in these circumstances: The employee was passing through a doorway leading from the kitchen where he worked to an alleyway outside. As he did so he reached into his coat pocket for a cigarette and at the same time closed the door with his left elbow. His elbow went through a glass panel in the door and his arm was badly lacerated. At the time he was injured he was on his way outside to smoke, as smoking was not permitted inside the building. The employee testified that he also went outside to see if any dishes had been brought down in a hand truck from the men’s ward. But the single member found that his only purpose in going outside was to smoke. There was evidence tending to show that it was customary for the employees who worked in the kitchen to go outside to smoke during a lull in their work, and that they were not forbidden to do this by those who supervised their work. There was also evidence from which it could be inferred that this was done only during mealtime and time off. But neither the single member nor the reviewing board made any findings with respect to this evidence.

The single member stated in his decision that “the question turns on what . . „ [the employee] went out for.” After finding that the employee was injured “when going out for a smoke and not when doing the work of his employer,” he concluded that the employee did not prove that he had sustained an injury arising in the course of his employment, and ordered the claim dismissed. The findings and decision of the single member were adopted by the reviewing board.

We think the board erred in ruling that the case turned “on what . . . [the employee] went out for.” It is established by our decisions that an employee, in order to be entitled to compensation, need not necessarily be engaged in the actual performance of work at the time of injury; it is enough if he is upon his employer’s premises occupying himself consistently with his contract of hire in some manner pertaining to or incidental to his employment. Under this principle findings that an employee’s injury arose out of and in the course of his employment were upheld where he was getting fresh air (Von Ette’s Case, 223 Mass. 56, 61), going or coming by stair or elevator (O’Brien’s Case, 228 Mass. 380; White v. E. T. Slattery Co. 236 Mass. 28, 33-34; Nagle’s Case, 310 Mass. 193, 197), resting (Sullivan’s Case, 241 Mass. 9; Holmes’s Case, 267 Mass. 307), attending to a call of nature (Haskins’s Case, 261 Mass. 436), waiting to be transported from his place of employment to his home (Milliman’s Case, 295 Mass. 451), washing his own clothes used in his work (Sylvia’s Case, 298 Mass. 27), eating meals (DeStefano v. Alpha Lunch Co. of Boston, 308 Mass. 38, 40), sleeping in a lodging house (Souza’s Case, 316 Mass. 332), or walking on a parking lot furnished by the employer (Rogers’s Case, 318 Mass. 308). It would appear from the board’s statement of what the case turned on, and from the fact that it made no findings as to what the custom was with respect to smoking outside during' working hours, that it regarded the fact that the employee was on his way outside to smoke as decisive as matter of law on the issue of whether his injury arose out of and in the course of his employment. But this was not necessarily decisive on that issue. It cannot be said as matter of law that where an employee is injured on the premises of his employer while smoking or preparing to smoke he is precluded from recovering compensation. This conclusion is supported in principle by the decisions cited above and by numerous decisions in other jurisdictions. Whiting-Mead Commercial Co. v. Industrial Accident Commission, 178 Cal. 505. Lovallo v. American Brass Co. 112 Conn. 635. Rish v. Iowa Portland Cement Co. 186 Iowa, 443. Haller v. Lansing, 195 Mich. 753. Kaletha v. Hall Mercantile Co. 157 Minn. 290. Chludzinski v. Standard Oil Co. of New York, 176 App. Div. (N. Y.) 87, 90. Dzikowska v. Superior Steel Co. 259 Penn. St. 578.

Whether the employee’s injury arose out of and in the course of his employment was a question of fact to be decided by the board, but in making its decision it was required to apply correct principles of law (see Nagle’s Case, 310 Mass. 193, 196-197). This, as its decision shows, it did not do. The decree of the Superior Court dismissing the claim for compensation is reversed, and a decree is to be entered remanding the case to the Industrial Accident Board for further proceedings not inconsistent with this opinion.

So ordered.