SUPREME JUDICIAL COURT OF MASSACHUSETTS. SUFFOLK. CRANNEY'S CASE. IN RE HOTEL ESSEX. IN RE EMPLOYERS' LIABILITY ASSUR. CORPORATION, LIMITED.* MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT -DEATH IN "COURSE OF EMPLOYMENT”-KILLING OF HEAD WAITER. Where head waiter of hotel was killed, while in hotel eating lunch under his contract of employment, by waiter whom he had discharged in interests of hotel company, and acting under its authority, death was in "course of employment," entitling dependent widow to compensation. (For other cases, see Master and Servant, Dec. Dig. § 373.) (For other defintons, see Words and Phrases, First and Second Series, Course of Employment.) Appeal from Superior Court, Suffolk County. Proceeding under the Workmen's Compensation Act (St. 1911 c. 751, amended by St. 1912 c. 571) by Mary E. Cranney, for compensation for the death of Charles W. Cranney, the employee opposed by the Hotel Essex, the employer, and the Employers' Liability Assurance Corporation, Limited, the insurer. Compensation was awarded, the award affirmed by the superior court, and the employer and insurer appeal. Decree of the superior court affirmed. Sawyer, Hardy, Stone & Morrison, of Bosston (Gay Gleason, of Boston, of counsel), for appellant insurer. Jas. H. Cline, of Boston, for appellee. BRALEY, J. The case was heard in the first instance by a single member whose decision for the claimant was affirmed on review by the full board. While the insurer concedes that there was some evidence to support most of the findings of fact, we are satisfied upon reading the evidence, which includes the statement of Zacharachi who shot and killed the employee, that all of the findings were warranted. The findings are as follows: "The employee * * * was shot and killed on August 28, 1916, by one Stellianos Zacharachi; that the deceased was head waiter at the Hotel Essex and had been such for 22 years prior to the shooting; that the deceased employee had been employed as a waiter and as head waiter at the hotel for about 16 years; that his duties as head waiter embraced the hiring and discharging of waiters, their control while on duty and the maintenance of discipline among them; that Zacharachi, the assailant, had been employed as a waiter at the hotel for about 20 years; that prior to the claimant's decedent becoming head waiter Zacharachi had enjoyed special privileges not enjoyed by the other waiters; including a special station and shorter hours; that the deceased in the interest of discipline and to allay dissatisfaction among the other waiters and promote the interests of his employers took these privileges away from Zacharachi; that a few weeks before the shooting Zacharachi had been discharged *Decision rendered, Feb. 26, 1919. 122 N. E. Rep. 266 because he was not a member of the waiters' union and that immediately prior to the shooting the deceased had voluntarily re-employed Zacharachi, but had not given him his old station; that Zacharachi was of an excitable temperament, was made ugly by drinking liquor; that Zacharachi was a habitual drinker for a long period of years and that he habitually carried a pistol; that his drinking habits and the effect of liquor upon him. and the fact that he carried a pistol were generally known at the hotel; that about a month before the shooting a pistol belonging to Zacharachi was taken away from him at the hotel and placed in the custody of the bookkeeper; that on the morning of August 28, 1916, Zacharachi came in to work and did some work; that about 11 a. m. he had some words with the deceased in regard to his work; that he refused to obey the orders of the deceased and was told that he was discharged; that he was very angry and became further inflamed by a couple of drinks which he secured at the hotel bar; that while angry and inflamed by liquor he sought out the deceased employee, had some further words with the deceased in regard to his employment and then shot and killed him; that the shooting occurred while the deceased was eating his luncheon shortly after 2 o'clock; that his luncheon was furnished to him as a part of his contract of employment; that the deceased was free to leave the hotel from 2 o'clock until 5:30 in the afternoon, but that he was subject to call while in the hotel and customarily returned to his place of employment in the dining room after eating his luncheon." It was unnecessary to discuss the questions whether the employer knew of Zacharachi's habits in th use of intoxicating liquors or of carrying a pistol, or that drinking caused him to be ugly, as the decision is put on the ground that the employee "Was shot and killed solely by reason of his performance of his duties as head waiter, and that as it turned out his death resulted from a risk of his employment and flowed from that ource as a rational consequence." The insurer relying on McNicol's Case, 215 Mass 497, 102 N. E. 697, L. R. A. 1916A, 306, contends that compensation cannot be awarded, as the casualty could not have been reasonably foreseen by the employer, and therefore not being a risk of the employment it does not arise out of it. The shooting occurred in the employer's dining room while Cranney was at luncheon. It is manifest that he lost his life, not because of any quarrel of his own with the assailant, but because he faithfully and properly discharged the duty owed to his employer, and thereby incurred the resentment of Zacharachi. "The servant must serve in the master's way as he is directed, or in emergencies as he has reason to believe the master would approve were he present, or as he a faithful servant owing to his master fealty and aid in time of peril ought." It was plainly in the employer's interest and for its benefit that Zacharachi should be discharged, and when Cranney was hired and intrusted with this general authority, which he exercised in a reasonable and suitable way, it was contemplated that whatever befell him when acting strictly within the scope of his employment, even if the time and conditions could not be forecast, was incidental to, and part of the employment. "The rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment and not by some other agency, or there can be no recovery." Madden's Case, 222 Mass. 487, 495, 111 N. E. 379, 383 (L. R. A. 1916D, 1000). It moreover is reasonably within the common experience of mankind that the general nature of what Cranney would have to do in maintaining discipline if a waiter persisted in disobeying orders and the possible anger and desire "to get even," of a waiter discharged under such circum stances could be foreseen in the sense that such incidents are not mere figments of the imagination, but incidents which might occur in the ordinary course of human affairs. * * "That murder resulted instead of a broken bone is of slight, if indeed it is of any significance. This injury was one to which the employee was exposed by reason of his employment. * The causative danger was peculiar to his work. It was incidental to the character of the employment and not independent of the relation of master and servant. Although unforeseen and the consequences of what on this record apears to have been a crime of the highest magnitude, yet now, after the event, it appears to have had its origin in a hazard connected with the employment and to have flowed from that source as a rational consequence. Third by the test in McNicol's Case, 215 Mass. 497, 499 [102 N. E. 697, L. R. A. 1916A, 306], the injury seems to have arisen in the course of the employment." Riethel's Case, 222 Mass. 163, 165, 109 N. E. 951, 952 (L. R. A. 1916A, 304). We are of opinion that so long as the employee while in the performance of the employer's business properly exercises the authority conferred upon him by his contract of employment, injuries received by him resulting from such employment, arise out of the employment, and if death ensues as in the case at bar his dependents are entitled to compensation. McNicol's Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306; Riethel's Case, 222 Mass. 163, 109 N. E. 951, L. R. A. 1916A, 304; Von Ette's Case, 223 Mass. 56, 111 N. E. 696, L. R. A. 1916D, 641; Harbroe's Case, 223 Mass. 139, 111 N. E. 709. The decree should be affirmed. So ordered. SUPREME JUDICIAL COURT OF MASSACHUSETTS. GAVAGHAN'S CASE. IN RE EMPLOYERS' LIABILITY ASSUR. CORPORATION, LIMITED.* MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT -INCAPACITATED DAUGHTER-RIGHT TO SHARE IN AWARD. Daughter of deceased servant, over 18, married and living with her blind husband, she herself being totally blind, and therefore physically incapacitated from earning, was entitled to equal share in death benefit with surviving widow, under Workmen's Compensation Act, § 7 (c), as amended by St. 1914, c. 708, § 3 (c). (For other cases, see Master and Servant, Dec. Dig. § 388.) Appeal from Superior Court, Suffolk County. Proceeding under the Workmen's Compensation Act by Lizzie Gavaghan and Anna F. Mason for compensation for the death of Hugh Gavaghan, the employee, wherein the Employers' Liability Assurance Corporation, Limited, acknowledged liability. From a decree of the superior court, affirming denial of her right to participate in the award, Anna F. Mason appeals. Reversed. * Decision rendered, Feb. 27, 1919. 122 N. E. Rep. 298. Frederick S. Harvey, of Lowell, for appellant. James E. O'Donnell, of Lowell, for widow. PIERCE, J. The following agreed statement of facts filed in the case contains all the evidence: "Hugh Gavaghan, late of Lowell, in the county of Middlesex, deceased, the employee, while working at the Tremont & Suffolk Mills in said Lowell, received a personal injury arising out of and in the course of his employment, on the 11th day of December, 1917, from which death resulted on the 15th day of December, 1917. The employee left surviving him a wife by a third marriage, Lizzie Gavaghan, of said Lowell, with whom he was living at the time of his death, and one child, Anna F. Mason, of said Lowell, by a former wife, who was over the age of eighteen years, but who is physically incapacitated from earning by reason of total blindness, and both the said Lizzie Gavaghan and the said Anna F. Mason have filed claims for compensation. The said Anna F. Mason at the time of the death of her father, the said Hugh Gavaghan was married, and was living with her husband, Arthur Mason, of said Lowell, who is also totally blind. The said Lizzie Gavaghan is entitled to compensation as a person who is conclusively presumed to be wholly dependent for support upon the deceased employee, by virtue of paragraph 'a' of section 7 of the Workmen's Compensation Act (St. 1911, c. 751, pt. 2), as amended by section 3 of chapter 708, St. 1914, and the only question raised by this agreed statement of facts is whether the daughter, the said Anna F. Mason, is also a person conclusively presumed to be wholly dependent for support upon the deceased employee by virtue of that part of paragraph 'c' of section 7 of the Workmen's Compensation Act, as amended by section 3 of chapter 708, St. 1914, which provides, among other things: * Provided, that in the event of the death of an employee who has at the time of his death living child or children by a former wife or husband, under the age of eighteen years (or over said age, but physically or mentally incapacitated from earning), said child, or children shall be conclusively presumed to be wholly dependent for support upon such deceased employee, and the death benefit shall be divided between the surviving wife or husband and all the children of the deceased employee in equal shares, the surviving wife or husband taking the same share as a child.' "The insurer has acknowledged liability, and is ready and willing to pay compensation when this question of dependency has been decided." In the case of a child of a former wife or husband the Legislature considers neither the wealth, poverty, residence nor legal rights to support of that child, and concerns itself only with the question is the child under eighteen years of age, and if over, is he or she "physically or mentally incapacitated from earning.' If under eighteen years of age or physically or mentally incapacitated from earning, the child is conclusively presumed by the terms of the act to be wholly dependent for support on the deceased employee. Bott's Case, 230 Mass. 152, 119 N. E. 755; Holmberg's Case, 231 Mass. 144, 120 N. É. 353. Upon the agreed facts the child is physically incapacitated from earning; it follows that the child Anna F. Mason is entitled to an equal share in the death benefit with the surviving widow. St. 1911, c. 751, part 2, § 7. (c), as amended by St. 1914, c. 708, § 3 (c). Decree reversed. SUPREME COURT OF NEW JERSEY. BURNS EDISON.* 1. QUÆRE. Whether an agreement to pay the statutory compensation for death under the Workmen's Compensation Act (P. L. 1911, p. 139, par. 12; P. L. 1913, p. 305; P. L. 1914, p. 499) should be in writing to satisfy the statute of frauds, in view of the provision that compensation is terminated by death of a dependent or remarriage of a widow, quære. 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-PROCEDURE-SUIT TO ENFORCE AGREEMENT TO PAY STIPULATED SUM. The procedure for recovery of compensation under said act is not applicable to cases where the suit is to enforce the terms of an agreement to pay stipulated sums, made after the accident. (For other gases, see Master and Servant, Dec. Dig. § 394.) 3. MASTER AND SERVANT—OCCURRENCE OF ACCIDENTCOMPENSATION-ESTOPPEL. An agreement to pay. compensation, made after the accident, is evidential of the occurrence of an accident and of the right to recover compensation therefor, but not conclusive evidence nor an estoppel to disprove the accident, if made within a year thereafter; and in a compensation suit it is error to exclude proof in denial of the occurrence of the accident, simply because of the existence of such an agreement. (For other cases, see Master and Servant, Dec. Dig. §§ 404, 405[1].) Proceeding by Esther, Burns against Thomas A. Edison for compensation under the Workmen's Compensation Act. To review award for petitioner, defendant brings certiorari. Reversed and remanded for new trial. Argued November term, 1918, before Parker and Minturn, JJ. Kalisch & Kalisch, of Newark, for prosecutor. PARKER, J. The principal difficulty in this case arises out of the fact that though the petition for compensation counted on a fatal accident alleged to have arisen out of and in the course of the emlpoyment of petitioner's husband, the proof was confined to an alleged agreement for compensation between petitioner and one Henderson, conceded to have been the authorized agent of the employer, prosecutor. Prosecutor's counsel on the hearing undertook to show by testimony that death had not occurred by reason of any such accident as claimed, but by reason of an occupational disease. The court overruled the offer on the ground that the agreement estopped the employer from showing such facts because it had been accepted and acted on and the statutory year had run, so that (as he held) a claim based purely on the accident was barred. It is not quite * Decision rendered, Feb. 18, 1919. 105 Atl. Rep. 717. Syllabus by the Court. |