bundle, barrel, or package, and who was required to be at the company's place of business about 9 o'clock each morning, and work there most of the day, but had the right to carry goods for other parties, and whose contract included loading and unleadaing, was an independent contractor, and not an "employee," within Workmen's Compensation Act, when injured while unloading barrels, though the company's employees sometimes assisted with the loading and unloading, and though its foreman sometimes gave directions respecting the unloading of the wagon.

(For other cases, see Master and Servant, Dec. Dig. § 367.) (For other definitions, see Words and Phrases, First and Second Series, Employee; Independent Contractor.)

Appeal from Superior Court, Suffolk County.

Proceedings under the Workmen's Compensation Act by Francis Gallagher for compensation for injuries opposed by the. Viscol Company, employer, and the Travelers' Insurance Company, insurer. Compensation was awarded, and decree therefor entered, and the insurer appeals. Reversed, and decree entered for insurer.

One of the questions before the Industrial Accident Board was whether or not the claimant was an employee or an independent contractor. The member of the board hearing the case found the facts as to the employment as stated in the opinion and further found that he was an employee at the time he received the injury. The insurer requested rulings, which the board member denied, that the claimant was not entitled to compensation, that as a matter of law he was an independent contractor and not an employee, that he was not paid wages within the meaning of the Compensation Act, that there was no evidence upon which the wages earned in his employment could be computed, and that as a matter of law he was doing an express business as an independent contractor. The board, with two members dissenting, adopted the findings of the member hearing the case.

Paul L. Keenan, of Boston for claimant.

Walter I. Badger and Louis C. Doyle, both of Boston, for insurer.

CROSBY, J. The question in this case is whether the evidence warranted a finding that the claimant was an employee of the Viscol Company at the time of receiving his injury on June 9, 1920.

In the month before the injury the claimant bought a horse and wagon, and soon afterwards made a contract with the subscriber to carry merchandise to and from the place of business of the latter at a certain price per bundle, barrel or package so carried, the price depending upon the size of the articles and the distance they were taken. The board member found that the claimant also was given the right to carry merchandise for other parties, but was required to be at the place of business of the subscriber daily, and at such time as the amount of merchandise called for; this made it necessary for him to go there about 9 o'clock in the morning and work for the subscriber most of the day. The foreman and other employees of the Viscol Company helped Gallagher to lead his wagon at the company's place of business, and when he brought goods there they helped him to unload them, sometimes using for that purpose a crane. When this was used, he was directed to fasten the hook to the article to be loaded or unloaded; he had nothing to do with operating the crane. On the day of the accident he brought to the Viscol Company's place of business a load of barrels; the crane was not then in working condition and he was told to roll the barrels out of the wagon to the platform. While he was so engaged, the king pin came out

of the wagon, throwing the front of it up, which caused one of the barrels to fall upon him breaking his leg.

He was injured in the performance of his contract which, as the board member found, included the work of loading and unloading the wagon; and although the subscriber's employees were assisting him at the time he was hurt he was required to do that work under the terms of the contract. The undisputed facts make it plain that he was an independent contractor. He was an expressman, or truckman paid to carry and deliver bundles, packages and barrels in his team at a certain price for each article. He could do work for other persons, under the agreement, and receive compensation therefor. He was not paid any definite sum as wages. The work which he performed included the services rendered by himself and the use of his horse and wagon. The compensation which he received covered not only his own labor but the use of his property. It was remuneration for service, not wages for labor as such, Such payments were not wages for labor under the Workmen's Compensation Act (Laws 1911, c. 751, amentled by Laws 1912, c. 571). It is clear that the claimant was not an employee within the meaning of that act. The arrangement which he had with the subscriber is inconsistent with the relation of employer and employee; otherwise he was an employee of every other person for whom he performed similar services. There was nothing in the contract with the Viscol Company that prevented the claimant from sending another driver in his place to carry and deliver goods for the company. Mt. Pleasant Stable Co. v. Steinberg, 238 Mass. 568, 131 N. E. 295, 15 A. L. R. 749. And he was injured in the performance of his contract, which included loading and unloading goods to be carried; the circumstance that he was sometimes assisted by employees of the company did not render him an employee. The fact that he was given directions occasionally by the foreman or shipper of the subscriber respecting the unloading of the wagon does not constitute such control as to warrant a finding that the relation of master and servant existed.

The conclusion reached is not inconsistent with the decision in Scribner's Case, 231 Mass. 132, 120 N. E. 350, 3 A. L. R. 1178, and in Hogan's Case, 236 Mass. 241, 127 N. E. 892. These cases are readily distinguishable in their facts from those in the case at bar. Brackett v. Lubke, 4 Allen, 138. 81 Am. Dec. 694, is not pertinent to the conditions here presented.

The case is covered in principle by numerous recent decisions. Comerford's Case, 224 Mass. 571, 113 N. E. 460; Centrello's Case, 232 Mass. 456, 122 N. E. 560; Winslow's Case, 232 Mass. 458, 122 N. E. 561: Becker's Case, 233 Mass. 577, 124 N. E. 421; Robichaud's Case, 234 Mass. 60, 124 N. E. 890.

It follows that the entry must be:

Decree reversed.

.Decree to be entered in favor of the insurer.

LEE'S CASE.

(Supreme Judicial Court of Massachusetts. Suffolk. March 2, 1922.) 134 Northeastern Reporter, 268.

1. MASTER AND SERVANT-INJURY WHILE GOING TO TIME CLOCK HELD RECEIVED IN "COURSE OF EMPLOYMENT" WITHIN COMPENSATION ACT.

Where an employee was injured while going from the building in which he worked to another for the purpose of ringing out his time on

the time clock when leaving at noon, the injuries were received in the course of his employment within Workmen's Compensation Act.

(For other cases, see Master and Servant, Dec. Dig. § 375[2].) (For other definitions, see Words and Phrases, First and Second Series, Course of Employment.)

2. MASTER AND SERVANT INJURY CAUSED BY HORSE PLAY OF FELLOW EMPLOYEES HELD NOT ONE "ARISING OUT OF EMPLOYMENT" WITHIN COMPENSATION ACT.

An injury to an employee knocked down while in the course of his employment as a result of fooling, or horse play, of fellow employees, in which one of the other employees was pushed out of a doorway and against compensation claimant, did not arise out of the employment, as such acts, whether done in a spirit of play or from a malicious motive, are outside the scope of the employment of those causing the injury, and have no relation to the employment.

(For other cases, see Master and Servant, Dec. Dig.. § 373.)

Appeal from Superior Court, Suffolk County.

Proceedings under the Workmen's Compensation Act by Francis H. Lee for compensation for injuries, opposed by the Washington & Haywood Chair Company, employer, and the American Mutual Liability Insurance Company, insurer. Compensation was awarded, and decree therefor entered in the superior court, and the insurer appeals. Reversed and decree entered for insurer.

The circumstances under which the injury was sustained are stated in the opinion. The Industrial Accident Board found that the injury arose out of and in the course of the employment; that "the conditions under which the work of registering time was required to be performed called for all employees to ring out at 12 o'clock noon. This meant that a line of employees must form, each anxious to register with the least possible delay. Naturally such a crowd of employees would not look with any appreciable amount of tolerance upon any employee who endeavored to block the line as Wallet did, and a natural incident of such a situation about the time clock was the forcible pushing of Wallet away from his blockading position, and the injury of a fellow employee." One member of the board dissented.

Sawyer, Hardy, Stone & Morrison, of Boston (Gay Gleason, of Boston, of counsel), for insurer.

CROSBY, J. While the employee was on the premises of his employer, and after leaving the building in which he worked was about to enter the one where the time clock was, in order to ring out his time at noon, he was knocked down, by a fellow workman who was pushed out of the doorway of that building by another employee, and received injuries for which he seeks compensation.

The claimant's injuries were the result of fooling or horse play of fellow employees, in which he took no part. The board member found that he "was the innocent victim of a friendly scrap between three other employees, one of whom was thrown out of the doorway, his body striking the claimant and throwing him to the ground, causing the injury to his shoulder and back.”

[1, 2] A he was on his way to the time clock during the noon hour to ring out his time, it is obvious that his injuries were received in the course of his employment. The question remains whether the injuries

arose out of his employment. It has been held by this court that, where an employee is injured as a result of fooling or play by employees in which he participates, such injury does not originate in any risk connected with, and caused by, his employment; and that such injury does not arise out of the employment within the meaning of the Workmen's Compensation Act (Laws 1911, c. 751, amended by Laws 1912, c. 571). Moore's Case, 225 Mass. 258, 114 N. E. 204. The precise question presented by this record is whether an injury received by an employee in the course of his employment, as the result of fooling or play by other employees in which he takes no part, can be said to have arisen out of the employment. While this issue has been decided in other jurisdictions, it has not been directly adjudicated by this court. It is clear that there was no causal connection between the employment and the injury. The injury did not arise because the employee was exposed by the nature of his employment to some peculiar danger, it did not follow as a natural incident of his work, and it does not appear "to have had its origin in a risk connected with the emplpoyment, and to have flowed from that source as a rational consequence.' McNicol's Case, 215, Mass. 497, 499, 102 N. E. 697, L. R. A. 1916A, 306. The interpretation of the Workmen's Compensation Act enunciated in the case last cited when applied to the facts in the present case makes it plain that the injury to the claimant cannot be said to have arisen out of his employment. The pushing of Wallet out of the doorway by other employees and against the claimant, assuming it was a wrongful act, was not within the scope of his employment. Such acts, whether done in a spirit of play or from a malicious motive, have no relation whatever to the employment; and they are wholly outside the scope of the employment of those who caused the injury.

The weight of authority in England and in this country is in harmony with the result we have reached. Armitage v. Lancashire & Yorkshire Railway, [1902] 2 K. B. 178; Fitzgerald v, Clarke & Son, 1 B. W. C. C. 197; Craske v. Wigan, 2 B. W. C. C. 35; Wilson v. Laing, 2 B. W. C. C. 118; Blake v. Head, 5 B. W. C. C. 303; Hulley v. Moosbrugger, 88 N. J. Law, 161, 95 Atl. 1007, L. R. A. 1916C, 1203; Federal Rubber Manuf. Co. v. Havolic, 162 Wis. 341, 156 N. W. 143, L. R. A. 1916D, 968; City of Chicago v. Industrial Commission, 292 Ill. 406, 127 N. E. 49, 15 A. L. R. 586; Tarpper v. Weston-Mott Co., 200 Mich. 275, 166 N. W. 857, L. R. A. 1918E, 507; Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 Pac. 212, L. R. A. 1916F, 1164; Pierce v. Boyer-Van Kuran Lumber & Coal Co., 99 Neb. 321, 156 N. W. 509, L. R. A. 1916D, 970. See Rayner v. Sligh Furniture Co., 180 Mich. 168, 146 N. W. 665, L. R. A. 1916A, 22, Ann. Cas. 1916A, 386.

The cases of Craske v. Head, supra; Plumb v. Cobden Flour Mills Co., Ltd., 7 B. W. C. C. 1; Simpson or Thom v. Sinclair, 10 B. W. C. C. 220, cited in the majority decision of the Industrial Accident Board, are not at variance with the conclusion which we have reached. Willis v. State Industrial Commission, 78 Okl. 216, 190 Pac. 92, and other cases cited in the decision, so far as they are contrary to the result arrived at in the case at bar, we cannot follow.

Cases which hold that an injury resulting from acts of a fellow employee who was known by the employer as a man of dangerous disposition, or who was known to be given to play or fooling, have no application to the present case. McNicol's Case, supra. See, also, Reithel's Case, 222 Mass. 163, 109 N. E. 951, L. R. A. 1916A, Cranney's Case, 232 Mass. 149, 122 N. E. 266, 15 A. L. R. 584; Marshall v. Baker-Vawter Co., 206 Mich. 466, 173 N. W. 191; William Baird & Co., Ltd., v. McGraw, 13 B. W. C. C. 233.

As the evidence did not warrant a finding that the claimant's injuries arose out of his employment, the decree must be reversed and a decree entered in favor of the insurer.

So ordered.

GAVROS' CASE.

(Supreme Judicial Court of Massachusetts. Hampden. Feb. 28, 1922.) 134 Northeastern Reporter, 269.

MASTER AND SERVANT — INJURY IN FIGHT BETWEEN OTHER EMPLOYEES HELD NOT ONE "ARISING OUT OF EMPLOYMENT" WITHIN COMPENSATION ACT.

Where employees of different nationalities, working for a construction company, engaged in a fight over the desire of some of the men to use the same tool day after day, and compensation claimant, who took no part in the fight, except to advise some of the men not to fight, was struck on the head and injured, his injury, if arising in the course of his employment, did not arise out of it, as the danger of such injury was not incidental to the employment in the absence of any previous quarrel, and his act in endeavoring to dissuade his fellow workmen from fighting was likewise not incidental to the employment.

(For other cases, see Master and Servant, Dec. Dig. § 373.) (For other definitions, see Words and Phrases, First and Second Series, Course of Employment.)

Appeal from Superior Court, Hampden County.

Proceedings under the Workmen's Compensation Act by John Gavros for compensation for injuries, opposed by the New England Construction Company, employer, and the Globe Indemnity Company, insurer. Compensation was denied, and the claim dismissed, and the claimant appeals. Affirmed.

The proceeding was heard by a member of the Industrial Accident Board on an agreed statement of facts from which it appeared that the claimant was employed by a construction company repairing railroad tracks, that some other employees engaged in a fight over the tools desired by different employees, and that the claimant was hit on the head and injured. The member of the board ruled that the injury did not arise out of and in the course of the employment, and his findings and rulings were adopted by the board.

Louis C. Henin, of Springfield, for employee.
Archer R. Simpson, of Springfield, for insurer.

CROSBY, J. This case was heard by a single member of the Industrial Accident Board, on an agreed statement of facts, who found and ruled: "That employees of different nationalities got into an altercation which resulted in the injury of the claimant. * * * That the injury as a result of the fracas did not arise out of and in the course of the employment."

The board, on review, affirmed the decision of the single member. It appears from the agreed facts that the claimant, with a large number of other employees, some of whom were Portuguese and some were Greeks, was employed by the New England Construction Company repairing tracks on the Boston & Albany Railroad. The laborers were transported to the place where the work was to be performed, by the railroad company, and upon arrival there they were accustomed to take their tools from the tool car and go to work. On the day the claimant was injured, when the destination was reached a discussion arose as to the possession of certain tools, some of the men desiring to use the same tool day after day. This discussion resulted in a fight in which the claim