Mandell's Case

77 N.E.2d 308, 322 Mass. 328, 1948 Mass. LEXIS 476
CourtMassachusetts Supreme Judicial Court
DecidedFebruary 2, 1948
StatusPublished
Cited by18 cases

This text of 77 N.E.2d 308 (Mandell's Case) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mandell's Case, 77 N.E.2d 308, 322 Mass. 328, 1948 Mass. LEXIS 476 (Mass. 1948).

Opinion

Ronan, J.

The employee was the president, treasurer and majority stockholder of á corporation bearing his name, which previous to the last war was engaged solely in dealing in floor coverings but, being unable to secure an adequate quantity of rugs and linoleum, began to extend its business to all kinds of house furnishings. His duty as buyer for the corporation required him nearly every month to make trips of a week’s duration to factories located in different [329]*329parts of this country. In the middle of July, 1943, accompanied by his wife, he left Boston on a trip or visit to Mexico. The entire expenses of the trip were paid by the corporation. While in Mexico he purchased $50 worth of furniture for the corporation. During his stay there he suffered a gastrointestinal upset and returned to Boston on August 17, 1943. He was then suffering from polyneuritis which prevented him from following his usual occupation. The single member of the Industrial Accident Board found that the primary cause for making the trip to Mexico was not to purchase merchandise for the corporation, although he intended to make such purchases if he discovered the goods he wanted; that, because of something he had eaten or drunk, he suffered a gastrointestinal upset which caused the polyneuritis; that this disease was not a personal injury peculiar to his employment; and that the employee did not sustain any injury causally connected with his employment. Upon review these findings were affirmed and adopted by the board. The employee appealed from a final decree entered in the Superior Court dismissing his claim.

We assume in favor of the employee, but without deciding, that the contracting of polyneuritis because of something he ate or drank constitutes a personal injury within the workmen’s compensation act. DeStefano v. Alpha Lunch Co. of Boston, 308 Mass. 38.

This brings us to the principal contention of the employee that his visit to Mexico was a business trip undertaken at the direction and for the benefit of his employer. The reviewing board affirmed and adopted the findings of the single member. It becomes necessary to ascertain the findings made by him in order to determine the basis for the decision of the board. Luongo’s Case, 313 Mass. 440. Demetre’s Case, ante, 95. He found that the employee did the buying for the employer; that the employer paid the entire expenses of the trip to Mexico of the employee and his wife; that the employee while in Mexico visited certain dealers; that it was his intention to purchase merchandise for his employer for resale by the latter in the usual [330]*330course of business; and that although he spent several days in Mexico he purchased only $50 worth of furniture. The single member found that the primary purpose of the trip to Mexico was not to purchase merchandise for the employer, but that the employee did intend to buy goods for the employer if he was able to find the goods. We construe this finding to mean that the trip to Mexico was undertaken mainly for pleasure or for some other purpose than in the interest of the employer; that the transaction of any business for the latter was a mere incident of the trip and it would not have been undertaken in the interests of the employer alone; and that the trip would have been cancelled if it were not to serve some purpose unconnected with the employment.

This finding with reference to the purpose of the trip is challenged by a motion to strike out because it is urged that the finding was not supported by the evidence. This motion was denied by the reviewing board. We examine the record to determine whether the evidence, together with all the rational inferences that could be drawn from it, is sufficient to sustain' this finding. The finding is not to be reversed if it is not lacking in evidentiary support unless a different finding was required as matter of law. Griffin’s Case, 315 Mass. 71. Amello’s Case, 320 Mass. 347. Bajdek’s Case, 321 Mass. 325. It is the exclusive function of the single member in the first instance, and of the board if a review is had, to settle questions of fact, and the findings of the reviewing board are to be sustained whenever possible. Zucchi’s Case, 310 Mass. 130, 133. Sawyer’s Case, 315 Mass. 75, 79. Chapman’s Case, 321 Mass. 705, 707.

The burden of proof was upon the employee to establish by a fair preponderance of the evidence that his disability was connected with his employment, Rozek’s Case, 294 Mass. 205, Amon’s Case, 315 Mass. 210; and in the instant case he was required to prove that his work for the corporation necessitated his journey to Mexico, or at least that it was one of the causes which impelled him to make that trip. If this was one of the purposes which brought about the trip, it would not cease to be connected with the [331]*331employment even if the employee and his wife received personal benefit and enjoyment in making the journey. If the trip would not have been made except for the pleasure of the employee and his wife and the employee’s work for the corporation had no real part in creating the necessity of the trip and while in Mexico the employee happened to make a purchase in a trifling amount for his employer, a finding would not be required as matter of law that the trip was made in the interest of the corporation. Each case is to be decided upon its own facts. The test or legal standard to be applied is whether the employment or something else sent the employee on the journey. If the former, the risk of the journey is a hazard of the employment; if the latter, it is the personal risk of the employee. Employers’ Liability Assurance Corp. Ltd. v. Hoage, 69 Fed. (2d) 227. Eby v. Industrial Accident Commission, 75 Cal. App. 280. Gagnebin v. Industrial Accident Commission, 140 Cal. App. 80. Children’s Bureau of Delaware v. Nissen, 42 Del. 209. Wineland v. Taylor, 59 Idaho, 401. Sater v. Home Lumber & Coal Co. 63 Idaho, 776. Boyer Chemical Laboratory Co. v. Industrial Commission, 366 Ill. 635. Murphy v. Flint Board of Education, 314 Mich. 226. Clegg v. Interstate Ins. Co. 130 N. J. L. 307. Marks v. Gray, 251 N. Y. 90. Schwimmer v. Kammerman & Kaminsky, 262 N. Y. 104. Torres v. Criterion Concessions, Inc. 284 N. Y. 615. Ridout v. Rose’s Stores, Inc. 205 N. C. 423. Eyman v. Industrial Commission of Ohio, 58 Ohio App. 287. Munson v. State Industrial Accident Commission, 142 Ore. 252. Bride v. Cathedral Art Metal Co. Inc. 66 R. I. 331. Vitagraph, Inc. v. Industrial Commission of Utah, 96 Utah, 190. Barragar v. Industrial Commission of Wisconsin, 205 Wis. 550.

The purpose of the trip and its relation, if any, to the employment were questions of fact. The payment of expenses by the corporation, although important, was not a decisive factor. Such payment to one who held the principal offices and a majority of its capital stock might properly be regarded in a somewhat different light than a similar payment to one who stood in no other relation to the corporation than that of an employee whose only duty [332]*332was to purchase merchandise for the corporation.

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Bluebook (online)
77 N.E.2d 308, 322 Mass. 328, 1948 Mass. LEXIS 476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mandells-case-mass-1948.