* *

sion of St. 1908, c. 305, that notice shall be given in "actions" imports that notice shall be given in all kinds of actions which any person at common law has "against persons or corporations founded upon the defective condition of the premises * whenever such defective condition is caused by, or consists in part of, snow or ice." Baird v. Baptist Society, supra; McNamara v. Boston & Maine Railroad, supra. So construed the notice required to be given as a condition precedent to the right to maintain an action must appear to have been "given on behalf of the person who brings the suit," Driscoll v. Fall River, 163 Mass. 105, 108, 39 N. E. 1003, and "be given for the purpose of fixing his right of action." Carroll v. New York, New Haven & Hartford Railroad, 182 Mass. 237, 241, 65 N. E. 69.

[9] The notices of Mrs. Erickson cannot be held to have been given on behalf of any other person injured, because such inference is excluded by the statement therein "that Mrs. Erickson proposes to hold you liable in damages for her said injuries. This notice is given at her request and in her behalf, by her attorney. The express limitation of the notice to the claim of Mrs. Erickson distinguishes the case at bar from Merrill v. Paige, 229 Mass. 511, 118 N. E. 862.

* * *

It may be noted that under similar statutory provisions a separate notice by the husband was held to be necessary in an action by him to recover consequential damages for injuries to his wife sustained while travelling on a public highway. McKengue v. Green Bay, 106 Wis. 577, 82 N. W. 708, Sargent v. Gilford, 66 N. H. 543, 544, 27 Atl. 306.

In the first action, upon the allowance of an amendment to the first count to the effect that the accident was due in whole or in part to snow and ice and that due notice thereof was given to the defendant, the exceptions are overruled.

In the second action a verdict should have been directed for the defendant; and the exception to the refusal so to do must. be sustained and judgment be entered for the defendant. St. 1916, c. 236.

So ordered.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

SUFFOLK.

CASHMAN'S CASE.*

1. INSURANCE—INDEMNITY POLICY-EMPLOYEES - PRESIDENT OF CORPORATION.

Where the president of a corporation, its employee under the Workmen's Compensation Act (St. 1911, c. 751, amended by St. 1912, c. 571), * Decision rendered, June 28, 1918. 120 N. E. Rep. 78.

when injured, was engaged in the personal superintendence of the manual and mechanical operations of the corporation, the premium paid the company's insurer being based on a pay roll in which the president's remuneration was not included, he could not recover, not being within the terms of the policy which stipulated it should apply only to injuries sustained by any person or persons in the service of the subscriber under a legal contract of hire, whose entire remuneration was included in the declarations of the policy, and on which its premium was computed, and that, if the subscriber was a corporation, the remuneration of the president, etc., not actually engaged in personal superintendence of the manual or mechanical operations, need not be included; the policy covering such officers, nevertheless.

(For other cases, see Insurance, Dec. Dig. § 435.)

2. INSURANCE-INDEMNITY POLICY-PRESIDENT OF CORPO

RATION.

The president of a corporation, also a director, who owned half the capital stock, must be presumed to have assented to the contract of workmen's compensation insurance made by the company's treasurer, who also owned but one share less than half the stock, where the business was conducted as a partnership owned by the two, brothers.

(For other cases, see Insurance, Dec. Dig. § 435.)

Appeal from Superior Court, Suffolk County.

Proceedings for compensation under the Workmen's Compensation Act by Daniel Cashman, the employee, opposed by the Cashman Bros. Company, the employer, and the Travelers' Insurance Company, the insurer. Compensation was awarded, the award affirmed by the superior court, and from the decree, the insurer appeals. Reversed, and decree entered for the insurer.

W. I. Badger and Louis C. Doyle, both of Boston, for appellant.

N. N. Jones, of Boston, and Peter I. Lawton, of Newburyport, for appellee.

CARROLL, J. Daniel W. Cashman, while superintending the removal of the machinery of the plant of Gray & Davis, in Amesbury, was injured by a heavy weight falling on him when the chain which held it parted. The work was done by Cashman Bros. Company, a corporation of which the petitioner was the president and a director, and of whose capital stock he owned twenty-five shares; his brother, Michael Cashman, was it treasurer and a director, and owned twenty-four shares;. the remaining one share was held by their counsel. The policy of insurance under the Workmen's Compensation Act insured the Cashman brothers both as a corporation and as individuals. The policy provided if the subscriber was a corporation "the remuneration of the president, any vice president, secretary or treasurer not actually engaged in connection with, or in the personal superintendence of, the manual or mechanical operations described in such declarations need not be included." The remuneration received by the plaintiff was excluded in determining the amount of the premium. The Industrial Accident Board found that Daniel Cashman was an employee, and "the fact that the insurer,

for any reason, did not include the earnings of the claimant in its pay roll audit, has no bearing upon the rights of the claimant as an employee." Compensation was awarded him.

[1] Assuming, but not deciding, that Daniel Cashman might have been found to be an employee under the Workmen's Compensation Act, when he was injured he was engaged in the "personal superintendence of the manual or mechanical operations" of the corporation. The premium paid was based on the pay roll in which his remuneration was not included, and as he was not within the terms of the policy, he cannot recover.

[2] The business of Cashman brothers was conducted as a partnership. There was evidence that prior to the issuance of the policy, other policies under the Workmen's Compensation Act. had been taken out in the name of the corporation, in which the income received by the Cashmans had not been included. Michael Cashman had charge of the financial affairs of the concern, and the greater part, if not all, of the conversation regarding the policies was between him and the agents of the insurer. The remuneration of Michael and his brother was expressly excluded because of their objection and representation, their reason being "that they were practically a partnership and owned practically all the business.' Under these circumstances the plaintiff, who was the president and a director of the corporation and the owner of half of its capital stock, must be presumed to have assented to the contract of insurance made by the treasurer of the corporation, who also owned half of its capital stock.

The policy, by its express terms, does not cover the president while doing the work which Daniel Cashman was doing when injured. The policy provided:

"This agreement shall apply only to such injuries so sustained by any person or persons in the service of the subscriber under a legal contract of hire, express or implied, oral or written, and whose entire remuneration is included in the declarations hereinafter contained, and upon which the premium of this policy is computed, such injuries being sustained by reason of the business operations described in said declarations, conducted at the places and in the manner therein described. If the subscriber is a corporation, the remuneration of the president and vice president, secretary or treasurer, not actually engaged in connection with, or in the personal superintendence of, the manual or mechanical operations described in such declarations, need not be included, this policy covering such officers, nevertheless."

The interpretation of this clause under the circumstances here disclosed is that a president, vice president, secretary or treasurer, who is injured while actually engaged in the manual or mechanical operations of the corporation is not included as a beneficiary under the policy, unless his remuneration has been included as the basis of the premium to be paid on the policy, and the Work

men's Compensation Act cannot be construed so as to afford the plaintiff compensation contrary to this agreement.

While insured as an individual, he was an employer and could not claim compensation as an employee. Assuming he was an employee of the corporation of which he was president, his remuneration not being included in the pay roll, it would be manifestly unjust to require the defendant to pay him compensation. See in this connection Monitor Mutual Fire Insurance Co. v. Buffum, 115 Mass. 343. In Cox's Case, 225 Mass. 220, 114 N. E. 281, it was decided that, with certain exceptions there mentioned, the Workmen's Compensation Act does not permit an employer carrying on a business which is in substance one business to become a subscriber as to one part of it and to remain a nonsubscriber as to the rest. The case is not applicable to the case at bar. It follows that the decree must be reversed and a decree entered in favor of the insurer.

ACT-SUSPENSION OF DECREE PENDING APPEAL-DISCRETION OF SINGLE JUSTICE.

Whether a single justice of the Supreme Judicial Court, pursuant to St. 1915, c. 132, should enter an order for suspension pending appeal of decree of the superior court ordering entry of decree for the dependent under Workmen's Compensation Act (St. 1911, c. 751, amended by St. 1912, c. 571) and issuance of execution thereon rested in the discretion of the single justice.

(For other cases, see Master and Servant, Dec. Dig. § 418[32].) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-APPEAL FROM DECREE ON MEMORANDUM OF AGREEMENT.

Workmen's Compensation Act, pt. 3, § 11. expressly provides that there shall be no appeal from a decree of the superior court based on a memorandum of agreement approved by the Industrial Accident Board, and on such an attempted appeal the merits of the decree cannot be examined.

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

* Decision rendered, June 26, 1918. 120 N. E. Rep. 75.

Appeal from Superior Court, Suffolk County.

Appeal from Supreme Judicial Court, Suffolk County.

Proceedings under the Workmen's Compensation Act by Agnes Dempsey for compensation for the death of her husband, Daniel E. Dempsey, opposed by T. Owen Tully, the employer, and the London Guarantee & Accident Company, Limited, the insurer. Compensation was awarded, the widow petitioned for entry of decree and issuance of execution, and from decree of the superior court for her, the insurer appealed, and applied for suspension of decree pending appeal. From an order made by a single justice of the Supreme Judicial Court, the widow appeals. Order affirmed, and insurer's appeal from the decree of the superior court dismissed.

R. H. Smith and Wm. G. Thompson, both of Boston, for plaintiff.
H. S. Avery, of Boston, for insurer.

RUGG, C. J. The material facts disclosed by the pleadings in these records are that Daniel E. Dempsey was an employee of T. Owen Tully, who was a subscriber under the Workmen's Compensation Act. The employee received mortal injuries in the course of and arising out of his employment on November 2, 1916. The widow of the employee and 'the insurer thereafter entered into an agreement for compensation under the act, memorandum of which was filed with, and on May 17, 1917, approved by the Industrial Accident Board, and no appeal was taken therefrom. St. 1911, c. 751, pt. 3, § 4, as amended. Payments were made in accordance with the terms of that agreement up to August 9, 1917, when the insurer, without the assent of the dependent or the employee, and without the approval of the Industrial Accident Board (St. 1916, c. 90, § 1), ceased to make payments. The dependent thereupon filed in the superior court a petition with appropriate allegations setting forth a copy of the agreement and of the approval of its terms by the Industrial Accident Board, and praying for the entry of a decree and the issuance of an execution for the payments due under the agreement. Part 3, § 11, as amended. Decree was entered in accordance with the petition and execution ordered. The insurer appealed. It then filed in the Supreme Judicial Court a petition alleging, in substance, that it had entered into the agreement and had made the payments until August, 1917, when for the first time its attention was called to the decision of Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, Ann. Cas. 1917E, 900, decided in May, 1917, which decision it interprets as holding that the Workmen's Compensation Act has no bearing upon accidents occurring on navigable waters, that the mortal injury to the deceased employee occurred upon the steamship Devonian while lying at the wharf in the navigable waters of Boston Harbor, and that hence it was not liable under the act, and praying that the decree of the superior court be suspended until the merits of its contentions could be decided by this court.