Boyle v. Mahoney

Shumway, J.

The law places under the Workmen’s Compensation Act, all employers who regularly employ five or more persons. It would seem at first glance that in order to ascertain the number of persons employed by any employer, all that need be done was to count them, and as so determined, the number of employees at any given time would be purely a question of fact, if the fact of employment be granted; and therefore the finding of the Compensation Commissioner would be conclusive.

But one of the questions presented by appellants is whether some of the persons employed were in their employ or in the employ of an independent contractor; and, if in their employ, whether they were “casual” employees. It is conceded by the appellants that Webb Clark, John Bone, and Boyle at the time of his death, were in their employ, but they claim that some of them at least were “casual” employees.

If the nature of the business which the appellants were carrying on is considered, it will be seen that the business did not require the constant daily service of all of them. Clark repaired the boats and kept the machinery in order whenever called upon; Boyle kept the boats in operation when needed; and Bone was the watchman to care for the property. All of them drew pay from the appellants, and none of them having any other occupation, nothing more need be added to make it clear that their employment was not of a casual nature and that they were not otherwise employed than for purposes of their employers’ business.

The appellants further contend that the musicians employed to lead the dancing were not employees of the appellants, but were in fact employees of their leaders, who were independent contractors. The providing of a place to dance and musicians to lead the dances, was as much a part of the appellants’ business as running the boats, and while the appellants very likely did not control the actual production of music by the orchestra, yet the duration of the employment each day and the place where the musicians were to play were under the direction and control of the appellants, and it appears that the musicians were regularly paid by them. These facts sustain the finding of the Commissioner that the musicians were in the employ of the appellants, even though the leader furnished the musicians and stipulated the amount of compensation they should receive.

Among the reasons of appeal, one, that the deceased Boyle committed suicide, is abandoned in this court. It is, however, contended that Boyle’s death did not arise out of and in the course of his employment. It is insisted the evidence does not justify the finding and ruling of the Commissioner, that after Boyle had fallen into the water and began to swim upon his back toward the stem of the boat, such act was not a departure from the course of Ms employment. An examination of the evidence shows that it was just as reasonable to infer that Boyle was attempting to get into the boat, as that he was making an exMbition of Ms sMll as a swimmer, of wMch he had just previously been boastmg.

There is no error.

In tMs opirnon the other judges concurred.