SUPREME JUDICIAL COURT OF MASSACHUSETTS. HAMPDEN PEROTTI'S CASE.* 1. MASTER AND SERVANT—WORKMEN'S COMPENSATION ACT-DEPOSITIONS-REVIEW-PRESENTATION OF QUES TIONS. Where the claimant for compensation under the Workmen's Compensation Act, though attention was called to the subject of depositions, chose to go to hearing before the single member of the Industrial Accident Board without asking for the taking of depositions, the question whether there was an unreasonable refusal by the board to make request for the taking of depositions, under part 3, § 3, of the act, as amended by St. 1915, c. 275, is not presented. (For other cases, see Master and Servant, Dec. Dig. § 417[4].) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-MOTIONS TO TAKE DEPOSITIONS -AVERMENTS. Averments in the motions to take depositions in proceedings under the Workmen's Compensation Act for death of a servant are not evidence, and cannot be taken as true. (For other cases, see Master and Servant, Dec. Dig. § 406.) 3. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-PRESUMPTION OF DEPENDENCY-WIDOW OF FOREIGN SUBJECT. An alien's widow, residing in a foreign country, is not entitled to the benefit of the conclusive presumption of dependency established by the Workmen's Compensation Act, but the extent of her dependency on his wages is a question of fact. (For other cases, see Master and Servant, Dec. Dig. § 388.) 4. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-DECISION OF BOARD ON QUESTIONS OF FACTREVIEW. The decision of the Industrial Accident Board is final on questions of fact, as the extent of dependency, where no presumption applies, and is not open to revision. (For other cases. see Master and Servant, Dec. Dig. § 417[7].) Appeal from Superior Court, Hampden County. Proceeding under the Workmen's Compensation Act by Angela Perotti for compensation for the death of Angelo Perotti, the employee, opposed by John Schena, the employer, and the Employers' Liability Assurance Corporation. Compensation was awarded, the award affirmed by the superior court, and from its decree the claimant appeals. Decree affirmed. Silvio Martinelli, of Springfield, for appellant. Sawyer, Hardy, Stone & Morrison, of Boston (Gay Gleason, of Boston, of counsel) for appellee. *Decision rendered, June 25, 1919. 123 N. E. Rep 776, RUGG, C. J. This is an appeal from a decree of the superior court entered in accordance with the findings and decision of the Industrial Accident Board, affirming and adopting those of the single member. It is conceded that the employee, a subject of Italy, received fatal injuries in the course and arising out of his employment by a subscriber under the act. This proceeding is brought by his widow, a resident of Italy. At the hearing before the Industrial Accident Board a motion was made in behalf of the widow that depositions of witnesses be taken in Italy. This was denied. The reasons are not stated, but in that connection it is stated that at the hearing before the single member the insured objected that the testimony of the claimant should be taken by depositions. The single member overruled the objection and proceeded with the hearing. A motion was made in the superior court which, although quite informal, is treated as in substance a motion to recommit to the Industrial Accident Board in order that depositions of witnesses in Italy might be taken. [1] It is provided by St. 1915, c. 275, amending part 3, § 3, c. 751, St. 1911, as theretofore amended, that "upon the written request of the board or of any member thereof," filed with the clerk .of the superior court, commission to take depositions shall issue. The natural inference from the words of this statute is that ordinarily the decision whether such depositions ought to issue or not rests with the board or any member of it. See Derinza's Case, 229 Mass. 435, 438, 118 N. E. 942. It is not necessary to determine whether under any circumstances an unreasonable refusal by the board to make such request is reviewable. That question is not presented on this record. The claimant, although attention was called to the subject of depositions, chose to go to hearing before the single member without asking for the taking of depositions. [2] There is nothing on the record except bald denials of the motions for the taking of depositions. The averments in the motions are not evidence, nor can they be taken as true. There is nothing to indicate that there was any real reason in their support or that they were not denied rightly. [3, 4] The findings of the single member and of the board on review as to the extent of dependency involve no question of law. Manifestly the widow, under the circumstances disclosed, was not entitled to the benefit of the conclusive presumption of dependency established by the act. Nelson's Case, 217 Mass. 467, 105 N. E. 357. The extent of her dependency upon the wages of the deceased employee was a question of fact. Gorski's Case, 227 Mass. 456, 460, 116 N. E. 811. No ruling of law appears to have been made and none was requested. The decision of the board is final on questions of facf and not open to revision. Pass' Case, 232 Mass. 122 N. E. 642, and cases there collected. Decree affirmed. SUPREME COURT OF MICHIGAN. ROWE ET AL. V. LEONARD WAREHOUSES, INC., ET AL. (No. 47.)* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION -INJURY ARISING OUT OF AND IN COURSE OF EMPLOYMENT EVIDENCE. Where the evidence established that it was a part of the duty of deceased to frequently run elevator, and record does not show that condition of elevator was such as to require services of an electrician or a report to "elevator people," contention that deceased, killed while investigating elevator rope which "did not work right," was guilty of willful and intentional misconduct and sustained no accident which arose out of or in the course of his employment, will be overruled. (For other cases, see Master and Servant, Dec. Dig. § 380.. Certiorari to Industrial Accident Board. Proceedings for compensation by Sarah Rowe and another, opposed by the Leonard Warehouses, Incorporated, employer, and the Travelers' Insurance Company, insurer. Award for claimants, and the insurer brings certiorari. Award affirmed. Argued before Bird, C. J., and Ostrander, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ. Vandeveer & Foster, of Detroit, for appellants. MOORE, J. This is certiorari to review the action of the Industrial Accident Board in awarding compensation of $10 a week to Sarah R. Rowe, the widow, and Marjorie Rowe, the dependent child, of Herman Rowe, who was killed while in the employ of the Leonard Warehouses, Incorporated. [1] The defendant insurance company is contesting the claim, contending that deceased sustained no accident which arose out of and in the course of his employment, and that deceased was guilty of intentional and willful misconduct. This contention is based upon the claim that it was no part of Mr. Rowe's duty to make repairs upon the elevator, and that he was doing so when killed. There appears in the return of the Industrial Accident Board the following: "He claimed the rope was tight and did not work right. the elevator. "Q. How far were you from him? A. I was feet away from him. about five or six "Q. And you raised the gate? Was that the gate that let in upon the floor from the elevator? What did you have to do; raise it with your hands? A. Raise with my hands. I just kept the door about three or four feet with my hands. *Decision rendered, July 17, 1919. 173 N. W. Rep. 187. "Q. What did he do? A. Then he looked down to see what is the matter with that rope. "Q. Did you see the elevator coming? A. Before I turned around, before I just turned around, the elevator was then about two inches before me. It was coming down right on him." The testimony shows that the deceased was using the elevator. Said witness again testified: "Q. If the rope was fastened, would he have to unfasten it at all? A. No; he used the elevator five or six times. "Q. That day? A. Yes; we was up and down about five or six times. He claimed that the rope must be caught and did not work right; can't start the elevator. "Q. So then he went to unfasten or unhitch the rope, I suppose? A. I did not ask him. He did not tell me. He just tell me to raise up the gate, hold the gate." And again: "Q. After the foreman went into the office, Mr. Rowe walked over to the elevator? A. Yes; he was standing about a couple of minutes. Then he says, 'I can't see what is the matter with the rope.' "Q. You and he walked over? A. I went right with him, and he told me to raise up the gate. "Q. After he raised up the gate did he raise the guard up? A. The guard up 22 or 2 feet from the ground. "Q. Then he laid down on his stomach with his head to the elevator shaft? A. And tried to get the rope loose to see what is the matter with it. I don't know what he done." The testimony also shows that it was the usual thing for the deceased to use the elevator. There cannot be any doubt in this matter but that the accident did arise out of and in the course of the employment, and that it killed this man, and that he was not guilty of willful and intentional misconduct. It may be well to quote some of the testimony given by the foreman who had been in the defendant's employ several years and who testified Mr. Rowe had been his helper for more than a year: "Q. Again, what floor was it that his body was on? on the first floor in the warehouse. A. It was A. Oh, yes; "Q. Did his duties take him up on that elevator? we were working at the present time on that floor about 20 feet from the elevator. "Q. What disposition had Mr. Rowe shown before the accident? A. Good. He was in high spirits that morning. We were joking all the morning. We had both bought a Liberty Bond; joking about it in the morning. * * * "Q. What type man was Mr. Rowe? A. Finest in the land; fine. "Q. As to health? "Mr. Vandeveer: I object. "A. As far as his health he never complained. That I cannot say. "Q. What age was he? A. I think he told me he was 53." Counsel cite in support of their contention Bischoff v. American Car & Foundry Co., 190 Mich. 229, 157 N. W. 34, and Lobuzek v. American Car & Foundry Co., 194 Mich. 533, 161 N. W. 139, and claim they are controlling because of the following testimony of the foreman: "Q. Just before this accident happened you were in the rear of the building rolling rugs, with Mr. Rowe and Mr. Rosenberg, were you not? A. Before the accident; yes. "Q. You had occasion to leave those two men there and went into the front office to get some tags? A. No; some checking. "Q. Checking? A. Yes; that is, to tag the rugs on and number them. (He testified the elevator had been running smoothly, apparently in good working order and nothing out of repair or anything that needed adjustment.) “Q. Had not given either of the men any orders to use the elevator while you had left the room? A. No, sir. "Q. Had you? A. No, sir. "Q. Occasionally when adjustments were needed upon the elevator you would always notify the Otis people? A. Yes; the Otis people. "Q. And they would come and repair it? A. Yes. "Q. You had never requested Mr. Rowe to do that? A. No. "Q. And it was not a part of his duties? A. No; not to repair. "Q. Make repairs or adjustments? A. No. "Q. Or to test it in any way? A. No. Mr. Rowe's duties were those of a helper in handling furniture in the storeroom? A. Yes. "Q. That is the trucking and the carting of it? A. Well, not cartage; no. "Q. I mean handling it by truck? A. Oh, yes. "Q. But not going out on any of the wagons? A. Not outside; no. "Q. You had an electrician there? A. Yes. "Q. And the electrician took care of the motor? A. Yes. "Q. And the oiling such incidents as that as to the operation of the elevator? A. Yes. “Q. And you never knew Mr. Rowe to make any repairs or adjustments upon the elevator? A. No. "Q. And it was not any part of his duty to do it? A. No. "Q. And you never requested him to do it? A. No; never asked him to do anything like that. "Q. He was not engaged as a mechanic? A. No, "Q. If he attempted to do that, he would be doing something that was not within the scope of his employment? A. If he did. "Q. I say if he did? A. Yes. "Q. He would not be doing anything within the scope of his employment? A. No. "Q. Mr. Rowe's employment was to handle the furniture and to move it from one point to another in the warehouse and packing and things of that character? A. Of course, he would operate the elevator, up and down. "Q. In moving furniture up and down? A. Yes. "Q. But what I am speaking of is to make repairs and things of that kind? A. Oh, no. "Q. That was something that the electrician of the Otis Elevator people attended to? A. Yes." [2] It is not clear as to how much of this testimony was competent, as Mr. Rowe could not give his version of the situation. See Zoladtz et al. v. Detroit Auto Specialty Co., 206 Mich. 349, 172 N. W. 549, and Hanna v. Michigan Steel Castings Co., 204 Mich. 139, 170 N. W、 6. But if we regard the testimony as competent it does not bring the instant case within the cases cited by counsel for appellant. The foreman testified that four minutes before the accident the elevator was running well. The evidence establishes beyond a doubt that it was part of the duty of the deceased to frequently run the elevator. The record does not show that it was in such a condition as to require the services of an electrician or that a report be made to the Otis Elevator people. The most that can be said of it that the rope which operated it stuck. Suppose the gate or a door to an elevator stuck; could not the operator try to make it open? It would not tend to efficiency on the part of the employee if, when so simple a thing as happened occurred, he might not investigate. Some of the cases The question involved is not new in this court. |