its roads a cart, pair of horses, and himself for undivided price of $6 a day, held an "independent contractor," not entitled to compensation for injuries while driving, under St. 1913, c. 807, § 1, amending the Workmen's Compensation Law.

(For other cases, see Master and Servant, Dec. Dig. § 367.)

(For other definitions, see Words and Phrases, First and Second Series, Independent Contractor.)

Appeal from Superior Court, Suffolk County.

Proceeding for compensation for injury under the Workmen's Compensation Act by George Winslow, the employee, opposed by the Town of Mansfield, the employer and self-insurer. Compensation was awarded, the award affirmed by the Superior Court, and the employer and insurer appeals. Decree of the superior court reversed, and decree directed to be entered in favor of employer and insurer.

Henry F. Wood, of Boston, for appellant.
John R. Halliday, of Mansfield, for employee.

PER CURIAM. The claimant was engaged in the business of stable keeper, teaming and jobbing. He let, to work for the town on its roads, a cart, pair of horses and himself as driver for the single and undivided price of $6 per day. His work was principally driving, but as occasion required he got off and shoveled and raked. The matter of handling the horses was left entirely to him and he managed them in his own way. He had used a cart of his own most of the time, but on the day of his accident he furnished a cart which he did not own. The accident occurred while he was driving off the road to dump his cart and was caused by the giving way of the king bolt. The town was liable under St. 1913, c. 807, § 1, for injuries received by "such laborers, workmen and mechanics employed by it as receive injuries arising out of and in the course of their employment," in general according to the provisions of the Workmen's Compensation Act (St. 1911, c. 751).

The facts show plainly that the claimant was an independent contractor. He furnished the team and driver for one price. The duty of the care and management of the horses and cart rested upon him as such contractor. His injury occurred in connection with the performance of that duty. The case is covered in principle in every particular by Centrello's Case, 122 N. E. 560, just decided.

It follows that the claimant does not come within the terms of St. 1913, c. 807, § 1, on which alone liability of the town can be based. Decree reversed.

Decree to be entered in favor of town.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

SUFFOLK.

KEOHANE'S CASE.

IN RE MCCARTHY.

IN RE MASSACHUSETTS BONDING & INS. CO.*

1. MASTER AND

SERVANT-WORKMEN'S

COMPENSATION ACT-MOTION FOR PERMISSION TO FILE LATE CLAIM FOR REVIEW.

Where insurer failed, within seven days after decision of committee of arbitration was filed, to file a claim for review as required by Workmen's Compensation Act, pt. 3, § 7, as amended by St. 1912, c. 571, § 12. as amended, industrial accident board had no authority to grant insurer's motion for permission to file late its claim for review.

(For other cases, see Master and Servant, Dec. Dig. § 416.)

2. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT APPEAL TO SUPREME JUDICIAL COURT-FINAL DECREE.

Workmen's Compensation Act requires a final decree of the superior court from which the party aggrieved can appeal to the Supreme Judicial Court.

(For other cases. see Master and Servant, Dec. Dig. § 418[2].) 3. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-MANDATORY ORDER OF SUPERIOR COURT — INTERLOCUTORY CHARACTER.

Mandatory order of superior court that proceedings for compensation for death of employee be remitted to industrial accident board for entrance of finding that board had no jurisdiction, and for dismissal of claim, held not contemplated by Workmen's Compensation Act, and to be treated as interlocutory, and not as a final order, from which employee's administratrix could appeal.

(For other cases. see Master and Servant, Dec. Dig. § 418[2].) COMPENSATION

4. MASTER AND SERVANT-WORKMEN'S

ACT-APPEAL TO SUPREME JUDICIAL COURT.

Where superior court ordered that claim for compensation be remitted to industrial accident board for finding, board had no jurisdiction, and board so found and dismissed claim, and superior court entered final decree affirming board's decision, under Workmen's Compensation Act, pt. 3, § 11, case is properly before Supreme Judicial Court on employee's administratrix's appeal from such decree of superior court.

(For other cases. see Master and Servant, Dec. Dig. § 418[2].)

Under Workmen's Compensation Act, pt. 5 § 2, cl. 1, administrator or executor, if an employer of labor, may become a subscriber, instead of

*Decision rendered, March 27, 1919. 122 N. E. Rep. 573.

Vol. III-Comp. 38.

remaining under the common law subject to the disadvantages imposed by the statute.

(For other cases, see Master and Servant, Dec. Dig. § 361.)

Appeal from Superior Court, Suffolk County; William Cushing Wait, Judge.

Proceedings for compensation under the Workmen's Compensation Act by Julia Keohane, administratrix of the estate of John Keohane, the employee, opposed by Timothy J. McCarthy, Ellen A. McCarthy being substituted as his administratrix, the employer, and the Massachustts Bonding & Insurance Company, the insurer. Claim for compensation was dismissed by the industrial accident board, the board's order was affirmed by the superior court and from its decree the administratrix of the estate of the deceased employee appeals. Decree affirmed.

John J. O'Hare and C. J. Muldoon, Jr., both of Boston, for appellant. Gaston, Snow & Slatonstall, of Boston (Rupert L. Mapplebeck, of Boston, of counsel), for appellee.

BRALEY, J. [1, 2] The intestate, John J. Keohane, a teamster, had been in the employ of one Timothy J. McCarthy to whom under St. 1911, c. 751, as amended, the insurer issued a policy dated March 3, 1916, to run for one year, protecting him as a subscriber from liability on account of injuries or death sustained by his employees. But McCarthy having died testate June 15, 1916, his executrix without being empowered by will, or authorized by decree of the court of probate, continued after his death in the business for the benefit of the estate and retained Keohane as an employee. See St. 1910, c. 411, § 1; Hines v. Levers & Sargent Co., 226 Mass. 214, 115 N. E. 252. The committee on arbitration found that on August 14, 1916, Keohane received a personal injury in the course of and arising out of his employment, "by being thrown from and run over by the team which he was employed to drive, and that he died on the same day as a result of the injury,” and ordered the insurer to pay compensation to the adminstratrix in the amount stated in the record. St. 1911, c. 751, pt. 2, §§ 6, 13. The decision was filed October 9, 1917, and the insurer having failed within seven days thereafter to file a claim for review as required by St. 1911, c. 751, pt. 3, § 7, as amended (St. 1912, c. 571, § 12), the industrial accident board rightly decided on January 12, 1918, that it had no authority to grant the insurer's motion for permission "to file late its claim for review." The procedure thereafter was as follows: The insurer January 21, 1918, presented to the superior court certified copies of the decision of the industrial accident board and the findings of the committee on arbitration and of all papers in connection therewith, stating that it intended to appeal to this court from the decision of the board. The administratrix however could not enforce the decision of the committee on arbitration except by a decree of the superior court and it is to be inferred, although the record does not so state specifically, that she presented and asked for the entry of the decree recited in the record. But the presiding judge on February 11, 1918, made an order on the above decree that

"After hearing I am satisfied that no contract of insurance existed at the time of the injury; that in consequence there was no jurisdiction in the accident board and the motion for decree is denied."

The administratrix March 1, 1918, appealed to this court from the order. The case thereafter was remitted to the industrial accident board under an order the material recitals of which are as follows:

"And now comes the Massachusetts Bonding & Insurance Company an alleged insurer in the above-entitled matter and moves that the matter be dismissed for want of jurisdiction of the same by the industrial ac

cident board and a decree was presented to the court upon which the following order was made, to wit: After hearing I am satisfied that no contract of insurance existed at the time of the injury. That in consequence there is no jurisdiction in the accident board and the motion for decree is denied. * * And on the 15th day of said February, 1918, after due hearing the court ordered that said cause be remitted to the industrial accident board for the entrance of a finding that the board had no jurisdiction in the matter and the dismissal of the claim."

While the question whether the case presented by the record was as matter of law within the statute was before the court the procedure adopted was irregular. The statute requires a final decree from which the party aggrieved can appeal to this court. Gould's Case, 215 Mass. 480, 483, 102 N. E. 639, Ann. Cas. 1914D, 372; Pigeon's Case, 216 Mass. 51, 54, 55, 102 N. E. 932, Ann. Cas. 1915A, 737; Young v. Duncan, 218 Mass. 346, 106 N. E. 1; Cowden's Case, 225 Mass. 66, 68, 113 N. E. 1036; Humphrey's Case, 226 Mass. 143. 115 N. E. 253; Brown's Case, 228 Mass. 31, 38, 116 N. E. 897; Dempsey's Case, 230 Mass. 583, 120 N. E. 75.

[3-6] A mandatory order in the form shown by the record is not contemplated by the statute and a decree should have been entered dismissing the claim for reasons subsequently stated. Brown's Case supra. See Pattee v. Stetson, 170 Mass. 93, 95, 48 N. E. 1022. It is plain notwithstanding the insurer's contention to the contrary, that the order should be treated as interlocutory and there was no final decree from which the administratrix could appeal. The board upon receiving the order March 11, 1918, decided April 12, 1918, that

“In accordance with the order of the superior court the industrial accident board finds that they have not jurisdiction of the matter and dismiss the claim for compensation."

The case thereupon again came before the superior court and a final decree having been entered affirming the decision the case is properly before us on her appeal. St. 1911, c. 751, pt. 3, § 11; Gould's Case, supra. The decree must be affirmed. The contract of insurance was solely between the testator and the insurer. The company undertook by the terms of the policy to indemnify him personally as a subscriber, and even if he died during the year the policy cannot be extended to include claims for injuries suffered by the employee's of the executrix who is an employer of labor in the business, which she is personally conducting. People's Ice Co. v. Employers' Liabality Assurance Corp., 161 Mass. 122, 36 N. E. 754; Imperial Fire Ins. Co. of London v. Coos County, 151 U. S. 452, 14 Sup. Ct. 379, 38 L. Ed. 231. The administratrix however contends that under St. 1911, c. 751, pt. 5. § 2, cl. 1, which says that "employer" shall include the legal representative of a deceased employer, the executirx being the legal representative of the testator is covered by the policy. But the preceding words of this section are, that the following words and phrases as used in this act shall unless a different meaning is plainly required by the context have the meaning we have just quoted. The definition simply means, that in the construction of the act, an administrator or an executor if an employer of labor, may become a subscriber, instead of remaining under the common law, subject to the disadvantages imposed by the statute.

Decree affirmed.

SUPREME COURT OF MICHIGAN.

BORCK
V.

SIMON J. MURPHY CO. (No. 1.)*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-INJURY IN COURSE OF EMPLOYMENT-QUESTION OF LAW OR FACT.

The question whether a workman is injured by an accident arising out of and in the course of his employment entitling him to compensation under the Workmen's Compensation Act may be a question of law, or one primarily of fact, or a mixed question of law and fact.

(For other cases, see Master and Servant, Dec. Dig. § 417[7].)

2. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-INJURY NOT IN COURSE OF EMPLOYMENT-SUFFICIENCY OF EVIDENCE.

Evidence held sufficient to sustain finding of Industrial Accident Board that injured employee, watchman at one building, had gone to another building of his employer, where he was injured by falling down the elevator shaft, on business of his own, not that of his employer, so that he was not injured by accident arising out of and in course of employment entitling him to compensation under Workmen's Compensation Act.

(For other cases, see Master and Servant, Dec. Dig. § 405[4].)

Certiorari to Industrial Accident Board.

Proceedings for compensation for injuries under the Workmen's Compensation Act (Pub. Acts 1912 [Ex. Sess.] No. 10) by Otto C. Borck, the employee, opposed by the Simon J. Murphy Company, the employer. Compensation was denied by the Industrial Accident Board, and the employee brings certiorari. Affirmed.

Argued before Bird, C. J., and Ostrander, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ.

Carl B. Grawn, of Detroit, for appellant.

Keena, Lightner, Oxtoby & Hanley, of Detroit, for appellee.

OSTRANDER, J. The respondent owns several buildings in Detroit, among them the Telegraph building, on the southeast corner of the intersection of Congress and Shelby streets, and the Marquette building on the southeast corner of Congress and Wayne streets-one block east of the Telegraph building. Claimant was employed by the respondent during the week as janitor of the Telegraph building, and on one Sunday in each month as watchman of the same building. He seems to have acted, too, during the week, more or less, as an utility man doing errands, etc., when directed to do so. On these Sundays when he was watchman he swept the hall of the building, a performance which occupied very little time. He was paid by the month. He was on duty as watchman on Sunday, July 29, 1917. Some time in the morning he left the Telegraph building and went to the Marquette building and into it, and was injured * Decision rendered, April 3, 1919. 171 N. W. 470.