R. R. Co. vs. Winfield, 244 U. S. 147, 37 Sup. Ct. 546, 61 L. Ed. 1045, Ann. Cas. 1917D, 1139), that court deciding that the liabilities of interstate railroad companies to make compensation for personal injuries to their employees engaged in interstate commerce are regulated both inclusively and exclusively by the Federal Employers' Liability Act, and that no field remains for state legislation on this subject "even in respect of injuries occurring without fault, as to which the Federal act provides no remedy.' It is therefore needless to discuss the subject, and it must be held that our state Workmen's Compensatoin Act does not extend to cases where workmen engaged in interstate commerce are injured in the course of their employment without their employer's fault. Reversed and remanded, with instructions to enter judgment for defendant. All the Justices concurring.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

SUFFOLK.

IN RE MCALLISTER.*

1. WORKMEN'S COMPENSATION-CONTRACT OF EMPLOYMENT.

The contract of employment not having been reduced to writing, its terms are to be ascertained from the evidence reported by the committee on arbitration and the cross-examination of the alleged employee in regard to his work and relation to the alleged employer introduced at the hearing on review.

2. WORKMEN'S COMPENSATION ACT—“EMPLOYEE.”

A journeyman paper hanger, hired by the foreman of a department store's wall paper department, and directed by the foreman, whenever such work was required by a purchaser to go to the purchaser's residence and hang paper, was an "employee" of the department store, entitled to recover compensation under the act (St. 1911, c. 751) for injuries in the course of his employment, though his name did not appear on the store's pay roll of employees, as he was paid by the roll of wall paper at varying prices, with expenditures for car fares and paste, receiving a check weekly for the amount, since the decisive test as to employment is whether the claimed employer retained authority to direct or control the work or gave it to claimant.

Appeal from Superior Court, Suffolk County.

Proceedings for compensation under the Workmen's Compensation Act by Frank S. McAllister, the employee, opposed by the Jordan Marsh Company, the employer, and the American Mutual Liability Insurance Company, the insurer. Compensation was awarded, the award affirmed

* Decision rendered, Jan. 5, 1918. 118 N. E. Rep. 326.

1

by the superior court, and from the decree the insurer appeals. Decree ordered affirmed.

Sawyer, Hardy, Stone & Morrison, of Boston (E. C. Stone, of Boston, of course!), for Appellant.

Fredk. W. Mansfield and Edmund R. Mansfield, both of Boston, for Appellee.

BRALEY, J.

[1] The injury complained of was caused by a fall from a stepladder while the claimant was at work in the store of Jordan Marsh Company, a subscriber, hanging paper by direction of the foreman. The insurer contends that the claimant was an independent contractor within the meaning of St. 1911, c. 751, pt. 3, § 17, which confers on the employees of a contractor who has engaged "to do the subscribers's work," the same right to compensation as if they had been immediately employed by the subscriber, but makes no provision for the contractor where he performs the work himself. The question for decision therefore is whether at the time of the accident the claimant was an employee of the company. The contract of employment not having been reduced to writing, its terms are to be ascertained from the evidence reported by the committee on arbitration, and the "cross-examination of the alleged employee in regard to work and relation to the alleged employer," which was introduced at the hearing on review. Carnig vs. Carr, 167 Mass. 544, 46 N. E. 117, 35 L. R. A. 512, 57 Am. St. Rep. 488.

[2] It appears that the claimant, a journeyman paper hanger, was hired by the foreman of the company's wall paper department, and whenever such work was required by a purchaser the foreman who "gave claimant all his orders and instructions" and "approved his bills," directed him to go to the purchaser's residence, and hang the paper. But his name did not appear on the company's pay roll of employees, as he was paid by the roll at a varying price, with all expenditures for car fares and paste, and received weekly by mail a check for the amount. The terms and mode of payment, however, are not the decisive test. Morgan vs. Smith, 159 Mass. 570, 584, 35 N. E. 101. It is whether the employer retained authority to direct and control the work, or had given it to the claimant. Forsyth vs. Hooper, 11 Allen, 419, 421, 422. While the claimant testified that while at work "he was his own boss," his services manifestly formed part of the company's regular business conducted by itself, and the placing of the paper by his skill and labor inured to its benefit. The time and place of labor was not constant, but were determined by the employer as required by the demands of customers. If while the work was in process dissatisfaction arose, or damage was being done, the customer would be obliged to resort not to him, but to the company for further directions or redress. It cannot be said on the record as matter of law, that the Industrial Accident Board was not warranted in finding, that the parties never intended the

claimant should have the absolute right to hang the paper when and as he pleased regardless of any supervision by the company, which alone would be responsible in damages for unperformed or imperfect work. And that whenever and wherever necessary the power to direct what should be done in satisfaction of the purchaser's contract, the parties contemplated and understood was lodged with, or retained by the company, whose orders given through the forenian the claimant uniformly obeyed and executed. Coughlan vs. Cambridge, 166 Mass. 268, 277, 44 N. E. 218; Samuelian vs. Am. Tool & Machine Co., 168 Mass. 12, 46 N. E. 98; Driscoll vs. Towle, 181 Mass. 416, 419, 63 N. E. 922; Wakefield vs. Boston Coal Co., 197 Mass. 527, 83 N. E. 1116; Bowie vs. Coffin Valve Co., 200 Mass. 571, 577, 578, 86 N. E. 914; Clancy's Case, 228 Mass. 316, 117 N. E. 347. The decree awarding compensation should be affirmed. St. 1911, c. 751, pt. 2, § 1.

So ordered.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.
SUFFOLK.

IN RE O'TOOLE.*

1. WORKMEN'S COMPENSATION ACT—INJURY “ARISING OUT OF AND IN COURSE OF EMPLOYMENT.”

Where decedent, employed by the city of Boston to spread cracked stone on the roads, was fatally injured when the engineer of a steam roller, which was hired by the city at $15 a day for work on its highways, called decedent up to the roller to talk about personal matters. decedent stepping on the roller because he was getting wet. the engineer starting it up to blow off some steam. and it running over a sidewalk when certain gears came out, crushing decedent, the injury to decedent did not result from his employment, did not rise out of or in the course of it, so that his widow could not recover compensation under the act (St. 1911, c. 751.)

2. WORKMEN'S COMPENSATION ACT-INJURY IN EMPLOYMENT.

If the employee is injured in going to or returning from his work on the master's premises, or on premises available for the purpose, or if during intervals of leisure which occur in the course of the employment, still he may be within the scope of the employment and entitled to the benefits of the act.

Appeal from Superior Court, Suffolk County.

Proceedings for compensation under the Workmen's Compensation Act by Bridget O'Toole widow and alleged dependent of Patrick J. O'Toole, deceased, the employee, against the City of Boston. the employer. Compensation was awarded by the Industrial Accident Board, the award * Decision rendered, Jan. 7, 1918. 118 N. E. Rep. 303.

affirmed by the superior court, and the employer appeals. Decree reversed, and decree directed to be entered for the employer.

Walter J. O'Malley, Asst. Corp. Counsel, for Appellant City of Boston. Reardon & Mignault, of Boston, for Appellee Bridget O'Toole.

CARROLL, J.

[1] There was evidence that the City of Boston hired a steam roller at $15 a day for work on its highways, the contractor who owned it furnishing "engineer, coal, wood and steam." The employees of the city at different times helped the engineer, Gilbert Pelocoin, roll up the curtains, put coal in the bunkers and fill the tank. Patrick J. O'Toole was employed for the defendant city, in spreading cracked stone on the roads. The engineer testified that the only time this employee helped him around the roller, was when he helped him roll up the curtains, though the employee "had ridden with him before on the steam roller and had asked him to teach him [the employee] how to run it." On two occasions before the accident, O'Toole operated the roller a short distance, while being taught. At another time he rode on the roller. On the day of the accident the men stopped work between 12 and 1 o'clock. It was raining very hard, and while the roller was at rest the engineer called O'Toole, saying: "Come here, Pat; I want to speak to you." They engaged in conversation. The "conversation was just social and had nothing to do with the work," O'Toole speaking of a transfer to another department. They "spoke a few words." O'Toole said he was getting wet and stepped on the roller. The engineer started the machine "to blow off some steam." After going up and down the street, he stopped on top of the hill. The roller started to coast down the hill and when the engineer took hold of the throttle, the "gears came up, that the pin which holds the gears had come out * * and the machine crossed over the sidewalk." O'Toole was caught between the piazza of the house and the wheels of the roller. He was injured about "ten minutes to one or twenty minutes to one." He died as a result of these injuries.

These controlling facts show that while O'Toole was on the roller, he was speaking to the man in charge about his own affairs and his presence there, related solely to his own interests. His occupation did not require him to be there. He was there discussing his own prospects and his transfer to another department, or matters "just social and had nothing to do with the work." He was not called by the engineer to perform any work or to aid in any way in carrying on the business of the employer. The testimony that Pelocoin said after the injury that O'Toole was his helper, does not contradict these essential facts; indeed, there was no evidence to contradict them or to show that when injured the employee was occupied in the work for which he was hired and in which, the city was engaged. It follows from this that the injury to the employee did not result from his employment and

did not arise out of or in the course of it, and there can be no recovery. Joseph W. Savage's Case and cases cited, 222 Mass. 205, 110 N. E. 283.

[2] There are cases which hold that an employee is protected by the Workmen's Compensation Act, although not at the time. actually engaged in the work for which he was hired. If the employee is injured in going to or returning from his work upon the master's premises, or on premises available for the purpose, or if during intervals of leisure which occur in the course of his employment he is injured, he may still be within the scope of his employment and entitled to the benefits of the act. Sundine's Case, 218 Mass. 1, 105 N. E. 433, L. R. A. 1916A, 318; Blovelt vs. Sawyer, 6 B. W. C. C. 16. But the principle of these cases is not applicable where the servant leaves the sphere of his employment for some purpose of his own, entirely disconnected with and not in any way incidental to the employment.

The decree is to be reversed.

A decree is to be entered for the employer.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

SUFFOLK.

IN RE RIPLEY.*

1. WORKMEN'S COMPENSATION ACT-DUTY OF INSURANCE CORPORATION TO FURNISH MEDICAL AND HOSPITAL SERVICES.

If the Employers' Liability Assurance Corporation had made arrangements with a hospital for medical attendance to an injured employee, Workmen's Compensation Act (St. 1911 c. 751) pt. 2, § 5, as amended by St. 1914, c. 708, § 1, requiring the association to furnish reasonable medical and hospital services, would have been complied with in that respect.

2. WORKMEN'S COMPENSATION-ARRANGEMENT WITH HOSPITAL FOR TREATMENT OF INJURED EMPLOYEE— SUFFICIENCY OF EVIDENCE.

Evidence that notices had been posted on the employer's premises where his employee was at work, to the effect that the employee, if injured, could be treated at the city's relief hospital, supported a finding by inference that the Insurance Company had arranged with the hospital for such treatment, thus complying with the Workmen's Compensation Act. 3. WORKMEN'S

COMPENSATION-DUTY

BOARD TO MAKE FINDING.

OF

INDUSTRIAL

The Industrial Accident Board was not required as matter of law to find on evidence warranting the finding by inference that the Insurance

* Decision rendered, Jan. 21, 1918. 118 N. E. Rep. 638.