the time of the injury that the use of this rope for this purpose was prohibited by their employer. The claimant in response to an inquiry, "Did the men working around there generally know that they were not supposed to go up and down that rope?" said, .“Yes, sir." As to whether the claimant was actually at work and at the time was going up the rope in the furtherance of his master's business, and by so doing did not place himself outside the scope of his employment is in this case a question of mixed law and fact, and is to be etermined upon the following considerations: The claimant's own reason for doing what he acknowledges he knew was forbidden was, as stated by him: "I wanted to go up stairs and see how many different cottons there was up there. It was kind of late, almost the end of that day, and I thought to go the shortest way. That's how the accident happened." A stairway was provided for the use of the employees in going from the upper floors to the basement, and the claimant used this means when he went into the basement on that afternoon to do his work. The question of the liability of employers under Compensation Acts for injuries to employees received when in some place they were prohibited from entering, or in the performance of some act they were prohibited by rules or positive orders from doing, has been the subject of much consideration by the courts in the different jurisdictions, and no little confusion has arisen as to the principles upon which the various cases have been distinguished. Some of the Compensation Acts contain provisions that in cases of serious and willful misconduct on the part of the employee which contributes to the injury the employee is not entitled to compensation. Deliberate violations of. rules or orders of the employer made to safeguard the employee against injury have frequently been held to be such serious and willful misconduct as to bar the employee from compensation under such provisions. United States Fidelity & Guaranty Co. v. Industrial Accident Com. of Cal. (1917) 174 Cal. 616, 163 Pac. 1013; Nickerson's Case, 218 Mass. 158, 105 N. E. 604, Ann. Cas. 1916A, 790. In other instances where this question has arisen, attempts have been made to distinguish the cases by denying compensation when the violation of the rules or orders took the employee out of the sphere of his employment, and allowing compensation when the violation was only of rules dealing with the conduct of the employee within the scope of his employment. Elliott on Workmen's Compensation (7th Ed.) p. 50; Dietzen Co. v. Industrial Board of Ill., 279 Ill. 11, 16, 116 N. E. 684, Ann. Cas. 1918B, 764; Barnes v. Nunnery Colliery Co., 5 B. W. C. C. 195; Kolaszynski v. Klie, 91 N. J. Law, 37, 102 Atl. 5; Macechko v. Bowen Mfg. Co., 179 App. Div. 573, 166 N. Y. Supp. 822. There is no provision in the Maine Compensation Act exempting the employer in case the injury resulted from serious and willful misconduct; hence this phase of it does not concern us. Where the violation of the rules has clearly taken the employee out of the sphere of his employment, as in the case of an employee employed in the boiler rooms of an electric plant entering the transformer room of the plant, where by the rule of the company, which he knew, he was forbidden to enter, and where he had no business (Northern_Ill. Light & Traction Co. v. Ill. Industrial Board, 279 I11. 565, 117 N. E. 95), or where the rule, violated clearly related to the conduct of the employee within the scope of his employment, as in the case of the workman whose duty it was to oil certain machinery, but it was against the rules or orders of his employer to oil it while in motion (Mawdsley v. West Lehigh Colliery Co., 5 B. W. C. C. 80), or the domestic whose duty it was to kindle the kitchen fire, but was ordered not to use for the purpose kerosene, or anything similar, but used wood alcohol (Kolaszynski v. Klie, supra), this rule is sufficiently clear in its application. It does not, however, clearly indicate the underlying principle upon which such cases must finally be distinguished and upon which we think such rule itself actually rests. The Compensation Act of this state (Rev. St. c. 50, §§ 1-48) permits recovery only in cases of accident "arising out of and in the course of the employment," and all cases of whatever nature must be reduced to these terms. To say that the violation of one rule took the employee out of the sphere of his employment and another rule only relates to his conduct within the scope of his employment is only another way of saying that in the one case by reason of the rule the accident did not happen in the course of his employment, which in the other it did occur in the course of his employment, because he was at the time actually engaged in doing the work he was engaged to do, though doing it in a forbidden way. [1] Here lies the real test. The phrase "in the course of the employment" is too frequently lost sight of, and is seldom discussed. It is often clear that the accident did not "arise out of" because it did not occur "in the course of," but only the former reason is assigned for the decision. One is just as essential a condition of the right to compensation as the other. If an accident does not occur "in the course of," it cannot "arise out of," the employment. In this particular class of claims the determining factor is, we think, whether the accident occurred in the course of the employment. To discuss spheres of employment and rules of conduct only obscures the real issue. The words "in the course of the employment" relate to the time, place, and circumstances under which the accident takes place. An accident arises in the course of the employment when it occurs within the period of the employment at a place where the employee reasonably may be in the performance of his duties and while he is fulfilling those duties or engaged in doing something incidental thereto. Westman's Case, 118 Me. 133, 142, 106 Atl. 532; Larke v. John Hancock, etc., Ins. Co., 90 Conn. 303, 97 Atl. 320, L. R. A. 1916E, 584; Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458; Dietzen Co. v. Industrial Board, 279 Ill. 11, 18, 116 N. E. 684, Ann. Cas. 1918B, 764. [2] If, then, the employee is in a place where he is prohibited from being by positive orders of his employer by reason of the danger, or has taken a certain course in going from one place to another which he is prohibited from taking by his employer for the same reason, notwithstanding it is within the period of his employment, and his purpose in going to the other place is to perform some of his duties he is engaged to perform, he cannot be said, while in the forbidden place or while going by the forbidden route or means, to be acting in the course of his employment within the meaning of the Compensation Act, because he is not in a place where he reasonably may be in the performance of any of his duties. Nelson R. Construction Co.-v. Indus, Com., 286 Ill. 632, 637, 122 N. E. 113; Powell v. Brynder Colliery Co., 5 B. W. C. C. 124; Barnes v. Nunnery Colliery Co., 5 B. W. C. C. 195, Borin's Case, 227 Mass. 452, 116 N. E. 817, L. R. A. 1918A, 217; United Disposal Co. v. Indus. Com., 291 Ill. 480, 486, 126 N. E. 183; McDard v. Steel, 4 B. W. C. C. 412. Of course, if he went to the forbidden place for a purpose not connected with his duties, a fortiori would be outside the course of his employment. If, however, he is in the place where his duties are intended to be performed, and where, of course, he reasonably may be, and is engaged in the performance of them and only violates some rule relating to his conduct while in such performance, he is still acting in the course of his employment, even though he performs them recklessly and knowingly exposes himself to danger in violation of orders, and, unless the injury can be said to have been inflicted by "willful intention," may recover compensation. The claimant in this case was not in a place where he reasonably might be when the accident occurred. He had taken a forbidden way. He was as much in a forbidden place where he could not reasonably be, when he was dangling at the end of a swinging rope between the floors of the building where he was working, as he would have been had he, in order to save time in going to some part of his employer's premises where his next duties were to be performed, passed through a transformer chamber full of high-tension wires, which he was forbidden to enter. He took the forbidden course for his own convenience, and not that of the master. The case does not show his employer had required the work he was doing to be finished that day. It is clear, we think, that the accident did not arise in the course of the employment of the claimant, although within the period of it. The ruling, therefore, that in going up the rope he did not place himself outside the scope of his employment, was erroneous. Entry will be: Appeal sustained. Decree of sitting justice reversed. MACDONALD'S CASE. (Supreme Judicial Court of Maine. April 4, 1921.) MASTER AND SERVANT-COMPENSATION COMMISSIONER'S DECISION ON QUESTIONS OF FACT FINAL. Where the evidence in workmen's compensation proceeding is sufficient, if true, to sustain the commissioner's findings of fact, his decision thereon is final. (For other cases, see Master and Servant, Dec. Dig. § 417[7].) Appeal from Supreme Judicial Court, Androscoggin County, in Equity. Proceedings under the Workmen's Compensation Act (Rev. St. c. 50) by Basil MacDonald for compensation for injuries, opposed by the Bates Manufacturing Company, employer, and the American Mutual Liability Insurance Company, insurer. From a decree sustaining award of the Industrial Accident Commission to claimant, the employer and insurer appeal. Appeal dismissed and decree affirmed. JJ. Argued before Cornish, C. J., and Spear, Dunn, Wilson, and Deasy, B. L. Berman, of Lewiston, for plaintiffs. Andrews & Nelson, of Augusta, and W. T. Gardiner, of Gardiner, for defendant. PER CURIAM. Appeal from decree sustaining decision of the Industrial Accident Commission awarding claimant damages for an injury alleged to have been sustained by him on May 15, 1920, while employed by the Bates Manufacturing Company. Two issues are involved: First, whether the claimant sustained an injury; and, second, whether the employer or his agent had knowledge of the accident. Both are questions of fact. On both the Commissioner has found in favor of the claimant, and the record contains evidence upon which, if deemed true, the findings could be based. The question of credibility was for the Commissioner, and his decision thereon was final. Appeal dismissed, with costs. Decree of sitting Justice affirmed. JAKUTIS' CASE. (Supreme Judicial Court of Massachusetts. Suffolk. April 7, 1921.) 130 Northeastern Reporter, 637. 1. MASTER AND SERVANT-COMPENSATION FOR LOSS OF THUMB AND PARTS OF FINGERS LIMITED TO 25 WEEKS. The statute creating the right of the employee to specific compensation for traumatic amputation of his thumb and parts of all the other fingers of his right hand limits payments therefor to 25 weeks, except where the hand is rendered permanently incapable of use. (For other cases, see Master and Servant, Dec. Dig. § 385 [12].) 2. MASTER AND SERVANT-FINDING OF ACCIDENT BOARD, SUPPORTED BY EVIDENCE, NOT REVIEWABLE. The finding of the Industrial Accident Board that the injury to the employee did not render his hand permanently incapable of use, being supported by evidence, was final, and cannot be reviewed by the Supreme Judicial Court under Workmen's Compensation Act, pt. 3, § 11, as amended by St. 1912, c. 571, § 14, and St. 1917, c. 297, § 7. (For other cases, see Master and Servant, Dec. Dig. § 417[7].).—. 3. MASTER AND SERVANT WORKMEN'S COMPENSATION; WEEKLY PAYMENTS NOT REDEEMABLE, EXCEPT AFTER 6 MONTHS, ETC. Under Workmen's Compensation Act, pt. 2, § 22, as amended by St. 1914, c. 708, § 8, an injured employee being of age, his weekly payments cannot be redeemed by payment of a lump sum, except after they have been continued for not less than 6 months, and except by agreement of the parties and the determination of the Industrial Accident Board that it is for the best interest of the employee. (For other cases, see Master and Servant, Dec. Dig. § 385[20].) Appeal from Superior Court, Suffolk County. Proceeding for compensation under the Workmen's Compensation Act by Peter Jakutis, employee, opposed by the Somerville Auto Wheel & Body Company, employer, and the Travelers' Insurance Company. Compensation was awarded, the award affirmed by the superior court, and the employee appeals. Decree affirmed. Walter 1. Badger and Louis C. Doyle, both of Boston, tor insurer. Peter Jakutis, pro se. JENNEY, J. The employee in person has argued fully and with much earnestness that he is aggrieved by the decree of the superior court following and establishing the findings of the Industrial Accident Board. The entire record has been examined with care. The questions claimed to be involved relate to the contentions of the employee (1) that the specific compensation to which he had been entitled because of the traumatic amputation of his thumb and parts of all the other fingers of his right hand has been discontinued wrongfully; (2) that he is entitled to double compensation because his injury was caused by serious and willful misconduct for which his employers were responsible; and (3) that he is entitled to have his weekly installments "redeemed by the payment of * a lump sum." [1-3] The first of these claims is untenable because the statute creating the rights of the employee to specific compensation limits the payments therefor to 25 weeks except. where the hand is rendered permanently incapable of use. Floecher's Case, 221 Mass. 54, 108 N. E. 1032; Lacione's Case, 227 Mass. 269, 116 N. E. 485. The findings of the board that the injury to the employee did not render his hand permanently incapable of use, being supported by evidence, was final. It cannot be reviewed by this court. t. 1911, c. 751, pt. 3, § 11, as amended by St. 1912, c., 571, § 14, and St. 1917, c. 297, § 7; Herrick's Case, 217 Mass. 111, 104 N. E. 432; Amodio's Case, 233 Mass. 104. 123 N. E. 335. For the reason last given, the second claim cannot prevail. Nor can the third ground be sustained; as the employee is of age, his weekly payments cannot be redeemed by the payment of a lump sum except. after they have been continued for not less than 6 months and except by agreement of the parties and the determination of the board that it is for the best interests of the employee. St. 1911, c. 751, pt. 2, § 22, as amended by St. 1914, c. 708, § 8; McCarthy's Case, 226 Mass. 444, 115 N. E. 764. Here there has been no agreement to redeem the payments and that lack forbids action. Decree affirmed. LATTER'S CASE. (Supreme Judicial Court of Massachusetts. Suffolk. April 7, 1921.) 130 Northeastern Reporter, 637. MASTER AND SERVANT-INJURY WHILE USING ELEVATOR IN PREMISES LEASED TO EMPLOYER HELD COMPENSABLE "INCIDENT AND HAZARD OF EMPLOYMENT.” Where, by clear implication and the obvious intent of lease to an employer, as against the landlord the employer and his employees had right to use an elevator for purposes properly connected with the occupancy of the leased premises while maintained by the landlord, though the elevator was not the only means of access provided, an employee had a right to use it as against the landlord and the employer, could have been found to have authorized its use, and risk of injury while using the elevator was an incident and hazard of the employment within the Workmen's Compensation Act. 6 (For other cases, see Master and Servant, Dec. Dig. § 373.) Vol. VIII-Comp. |