Goff's Case

Rugg, C. J. The plaintiff was injured in the course of and aris- I ing out of his employment as a woodchopper. His compensation I was at the rate of $2 per cord. The finding that he was an employee I and not an independent contractor was not erroneous as matter of • I law. McAllister’s Case, 229 Mass. 193. The case upon this point I is distinguishable from Centrello’s Case, 232 Mass. 456, and Winslow's Case, 232 Mass. 458. There also was evidence to support the finding that the claimant I was a fellow workman with one Gould and not a partner with him. I There was evidence that the latter,was a foreman for the employer. I The finding of the board on this point must stand. I Apparently it is not in dispute between the parties that the I claimant at the time of his injury was working for a copartnership H composed of Ora S. Gray and Fred J. Humphrey. Although there I is no express finding upon the point, seemingly the partnership busi- H ness was conducted under the name of Ora S. Gray; confessedly II that partnership existed when the employment of the claimant J began. There was evidence that shortly before the injury to the D claimant, Gray and Humphrey had a partial accounting, agreed fl that the partnership should be dissolved, so far as concerned new ■ business, and that unfinished operations, including that upon ■ which the claimant was employed, should be completed for the H partnership by Humphrey. This warranted the conclusion that ■ the partnership continued as to the lot upon which the claimant ■ was chopping. D The chief argument of the insurer is that there can be no M recovery because the claimant was working for the= partnership ■ composed of Gray and Humphrey and that the subscriber was H Ora S. Gray alone. That point, however, is not open upon this B record. The trial of the case heretofore as disclosed on the record fl has not proceeded on that footing.' The findings and decision of the B Industrial Accident Board contain this statement: “Questions: B [121] (1) Whether the claimant was an employee of the subscriber at the time of the injury, May 3,1918, or whether he was an independent contractor. (2) Whether or not the claimant’s left eye is so injured as to entitle him to specific compensation.” The record is bare of any indication that the insurer did not accept this as a complete and accurate statement of the issues then raised and presented for decision. There is no finding as to the form of the insurance policy. It does not seem to have been produced in evidence. Whether it was in the name of Gray alone or of the partnership doing business under the name of Ora S. Gray cannot be determined on the evidence reported. It would be manifestly unjust to permit the case to turn now upon a contention not raised at the trial and as to which evidence was not directed. Mallory’s Case, 231 Mass. 225. The second question considered by the Industrial Accident Board has not been argued and appears now to present no point of law. Decree affirmed.