1911, c. 751, and acts in amendment thereof); but we are unable to agree with this contention. While it is provided by section 2 of part 1, that "the provisions of section one shall not apply to actions to recover damages for personal injuries sustained by domestic servants and farm laborers," it does not follow that all other employees who may be injured in the course of their employment are within the terms of the act. Undoubtedly the rules of law declared by this court relating to persons injured while in the employ of charitable institutions may be changed by the Legislature, still that such change was made by the Workmen's Compensation Act is not to be inferred in the absence of a plain intention on the part of the Legislature to that effect. [3] It has often been held that certain persons or classes of persons are excepted by implication out of a statute expressed in general words, the rule being that where the words of a law in their common and ordinary significance are sufficient to include such persons or classes of persons "the virtual exception must be drawn from the intention of the Legislature, manifested by other parts of the law; from the general purpose and design of the law; and from the subject matter of it.' Bradford v. French, 110 Mass. 365, 367; McCall v. Parker, 13 Metc. 372, 381, 46 Am. Dec. 735. It never has been held in this Commonwealth that a charitable institution was liable for negligence; on the other hand, it has been expressly held that such institutions are not liable for the negligence of their servants or agents. McDonald v. Mass. General Hospital, 120 Mass. 432, 21 Am. Rep. 529; Farrigan v. Pevear, supra, and cases cited. In Com. v. Rumford Chemical Works, 16 Gray, 231, at page 232, this court said: "But it is never to be presumed that the Legislature intended to make any innovations upon the common law further than is absolutely required upon a just interpretation of the provisions of its positive enactments. And this, it is said by Chancellor Kent, has been the language of the courts in every age. 1 Kent, Com. (6th Ed.) 464. In the decisions of our own, it has often been recognized as an established rule that the statute is not to be construed as a repeal of the common law unless the intent to alter it is clearly impressed." [4] For many years prior to the enactment of St. 1911, c. 751, this court in numerous decisions had uniformly held that a charitable institution was not liable for personal injuries due to the negligence of its servants or agents; and it is to be assumed that the Legislature had the existing law in mind when the statute was passed. We are of the opinion that, considering the statute as a whole together with its manifest purpose and the objects sought to be accomplished by it, it is not intended thereby to change the law as it previously stood and include employees of charitable institutions. Hyde v. Gannett, 175 Mass. 177, 55 N. E. 991. The cases cited by the plaintiff were decided under the English Workmen's Compensation Act and cannot affect the question whether St. 1911, c. 751, applies to a valid public charity. [5] The presiding judge submitted to the jury certain questions to be answered by them, the fourth of which was as follows: "Was the danger in operating a buzz planer without a guard an obvious danger, that could be seen by reasonable observation on the part of the plaintiff ?" The answer was in the affirmative. This finding makes it plain that the plaintiff is precluded from recovery, either under the Employers' Liability Act or at common law, apart from the fact that the defendant is a charitable corporation. As the jury have found that the danger of operating the planer without a guard was obvious and could be seen by reasonable observation on the part of the plaintiff, he must be held to have assumed the risk, even though he was unable to speak or understand the English language and was inexperienced. It is clear that any instructions or warning of the danger would not have informed him of anything which was not plainly to be seen; he was a carpenter, and there is nothing in the record to show that he was not a man of average intelligence. Chmiel v. Thorndike Co., 182 Mass. 112, 65 N. E. 47; Sullivan v. Simplex Elec. Co., 178 Mass. 35, 59 N. E. 645; Robinska v. Lyman Mille, 174 Mass. 432, 54 N. E. 873, 75 Am. St. Rep. 364; Stuart v. West End St. Ry., 163 Mass. 391, 40 N. E. 180. Although the plaintiff is not entitled to recover for the reasons previously stated, we do not mean to intimate that the defendant could be held liable for its negligence, or for the negligence of its servants or agents-these questions need not be considered in view of the conclusions reached. Exceptions overruled. SUPREME JUDICIAL COURT OF MASSACHUSETTS. MURPHY'S CASE. IN RE EMPLOYERS' LIABILITY ASSUR. CORP.* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-CAUSE OF DEATH. To entitle an employee's dependent to payment of compensation for his death under the Workmen's Compensation Act (St. 1911, c. 571), it * Decision rendered, May 22, 1918. 119 N. E. Rep. 657. must be found affirmatively that the injury which caused the death of the employee arose out of and in the course of his employment. (For other cases, see Master and Servant, Dec Dig. § 374.) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT—INJURY IN EMPLOYMENT—BURDEN OF PROOF. In proceedings for compensation under the Workmen's Compensation Act for death of an employee, the burden rests on the dependent to prove by a preponderance of the evidence that the injury which caused the death arose out of and in course of the employment. (For other cases, see Master and Servant, Dec. Dig. § 403.) 3. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-FINDING-SUPPORTING EVIDENCE. The finding of the Industrial Accident Board that injury to a deceased employee did not arise out of and in the course of his employment was a finding on a question of fact, and cannot be set aside if there was any evidence to support it. (For other cases, see Master and Servant, Dec. Dig. § 417[7].) 4. MASTER AND SERVANT-WORKMEN'S ACT-DIRECT EVIDENCE. COMPENSATION The facts required to establish a dependent's claim to compensation under the Workmen's Compensation Act need not necessarily be proved by direct evidence, but may be established by reasonable inferences drawn from facts shown to exist. (For other cases, see Master and Servant, Dec. Dig § 405[1].) 5. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-CAUSE OF DEATH-SUFFICIENCY OF EVIDENCE. In a widow's proceeding for compensation for death of her husband under the Workmen's Compensation Act, evidence held to justify the finding of the Industrial Accident Board that the cause of death was doubtful and could not be determined, not requiring finding that the death was the result of a personal injury due to the inhalation of poisonous chemical fumes. (For other cases, see Master and Servant, Dec. Dig. § 405[4].) Appeal from Superior Court, Norfolk County. Proceeding for compensation under the Workmen's Compensation Act by the dependent widow, of John T. Murphy, the employee, opposed by the Employers' Liability Assurance Corporation, the insurer. Compensation was denied, the denial affirmed by the superior court, and the dependent appeals. Decree affirmed. G. W. Abele, of Boston, for appellant. Sawyer, Hardy, Stone & Morrison, of Boston (Gay Gleason, of Boston, of counsel), for appellee. CROSBY, J. It is the contention of the claimant that the employee died on March 2, 1913, as the result of a personal injury arising out of and in the course of his employment-by poisoning from fumes of chemicals used in experimental work at a place where he was employed. He was a carpenter by trade, thirty-five years old, and was employed to help around generally "dding odd jobs, with no regular hours, subject to call at all times including Sundays and evenings." His employment began about August 19, 1912, and there was evidence that during the early part of the week ending Saturday, March 1, 1913, work at the factory was temporarily discontinued; that on the Saturday morning above referred to he went to work as usual, and was told by his employer that after doing certain things that had to be done he could go home and return when necessary to care for the furnaces, as there was nothing else for him to do. The evidence shows that he did not go home afterwards; that the next morning the employer went to the factory about 10:30 o'clock and found Murphy sitting on a box in front of the furnace; that he complained of feeling ill; that a physician was sent for and arrived about 11:20 o'clock; that at that time Murphy "was in a semi-conscious state, frothing at the mouth, and stiffening up on one side.'; that he was sent to a hospital and died soon afterwards. The Industrial Accident Board found that: "It was shown that the employee had been in good health prior to his death and that he had been engaged to perform carpenter work and help his employers to perfect a certain moving picture film. Certain chemicals were used in preparing this film, the testimony showing however, that these were not dangerous nor was there any risk of suffocation or poisoning from their use, or contact with them. The employee had assisted in making repairs on the tank into which the preparation of chemicals was placed, being inside about ten or fifteen minutes on each occasion." The physician who attended him at the factory testified that he could not state the cause of death. Dr. Magrath, medical examiner for Suffolk county, examined the body on July 7, 1913; he testified that he was unable to state the cause of death. And Dr. Jones, medical examiner for the Quincy district, testified to the same effect. The committee of arbitration found that they "are unable to determine what was the cause of Murphy's death, this being wholly a matter of conjecture, and, therefore, are unable to find that John T. Murphy's death on March 2, 1913, arose out of his employment." This finding has been adopted and affirmed by the board. [1-3] To entitle the dependent to the payment of compensation under the Workmen's Compenastion Act, it must be found affirmatively that the injury which caused the death of the employee arose out of and in the course of his employment-the burden rests upon her to prove that fact by a preponderance of evidence. The finding of the board that the injury did not arise out of and in the course of his employment, was a finding upon a question of fact, and cannot be set aside if there was any evidence to support it. Sponatski's Case, 220 Mass. 526, 108 N. E. 466, L, R. A. 1916A, 333; Sanderson's Case, 224 Mass. 558, 113 N. E. 355. [4,5] It is true, as counsel for the clamant argues, that the facts required to establish her claim to compensation under the act need not necessarily be proved by direct evidence, but may be established by reasonable inferences drawn from facts shown to exist. Von Ette's Case, 223 Mass. 56, 59, 60, 111 N. E. 696; Sponatski's Case, supra. Although there was evidence that the employee had been overcome on at least two occasions while working in the mixing tank, and that no other occasions during his employment he had complained of feeling ill, and at times had not appeared to be well, still upon all the evidence we cannot say that the Industrial Accident Board was required to find that his death was the result of a personal injury due to the inhalation of poisonous fumes from chemicals, as the claimant contends; there was no direct evidence to support that contention and we do not think it could reasonably be inferred that death was the result of that cause. In view of the medical and other testimony, it would seem that the finding of the board that the cause of death was doubtful and could not be determined, was amply justified. While the widow and children of the deceased are entitled to sympathy, we are constrained to hold that the cause of the employee's death is wholly conjectural and speculative. The contention that it arose out of the employment does not rest on a sound basis in view of the evidence as recited in the record. Sanderson's Case, supra; Milliken's Case, 216 Mass. 293, 103 N. E. 898, L. R. A. 1916A. 337; Marshall v. Owners of S. S. Wild Rose, [1910] A. C. 486; Barnabas v. Bersham Colliery Co. 3 B. W. C. C. 216. Because of the conclusion reached, we need not consider whether the dependent's claim for compensation is barred for failure to give the notice required by St. 1911, c. 751, pt. 2, § 15, or whether under pt. 2, § 18, the dependent would be entitled to compensation even if such notice had been given. Decree affirmed. SUPREME JUDICIAL COURT OF MASSACHUSETTS. BOTT'S CASE. IN RE EMPLOYERS' LIABILITY ASSUR. CORP., LTD.* 1 MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-ASCERTAINMENT OF DEPENDENTS-TIME. Under Workmen's Compensation Act (St. 1911, c. 761) pt. 2, § as * Decision rendered, May 24, 1918. 119 N. E. Rep. 755. |