LeBlanc's Case

Ronan, J. This is an appeal from a decree awarding compensation to the dependent mother of Robert LeBlanc [335] who was crushed to death between the platform of an elevator and one of the floors of a large department store where he had been employed as a stock boy. The store occupied a corner building and also an adjoining building known as the Jefferson Building which was separated from the corner building by an alleyway, known as Norfolk Place. The main store was located in the corner building. Both buildings were connected by bridges over Norfolk Place. A freight elevator known as elevator numbered 3 was located in the Jefferson Building. It was used to take food stuffs to the employees’ cafeteria which was located on the sixth floor of this building and to remove the garbage from the cafeteria, but its principal duty was to receive the incoming merchandise at its Norfolk Place entrance and bring it up to the marking room on the third floor where the goods were sorted and price tags attached and the goods then placed in that part of the third floor known as the stock room. This elevator had a regular operator but it was usually operated only about four or five hours a day during the period when the bulk of incoming freight was received, which was usually within the first few hours in the morning. The elevator with the lock engaged was left at the Norfolk Place entrance for the receipt of any further goods that might arrive. The lock consisted of a clamp which prevented the movement of the shipper cable sufficiently to start the elevator. The lock could be released by pushing in the clamp by one in the elevator. The duties of stock boys were to keep replenished the merchandise in the departments to which they were assigned in accordance with the instructions given to them by the heads of the respective departments. LeBlanc was assigned to the women’s and children’s shoe departments which were located in the corner building and below the level of the stock room. The proper and convenient way for LeBlanc to take shoes for the children’s department from the stock room was to go to the rear of the stock room, cross over the bridge spanning Norfolk Place, and take elevator numbered 5 in the main building, and, if going to the women’s depart [336] ment, to go to the front of the stock room, cross over the bridge nearest the front of the main building, and then descend by elevator numbered 15. Both of these elevators had operators and were available for the use of the stock boys. At the time he was hired and on two subsequent occasions — once when he was operating a freight elevator under the immediate supervision of a licensed operator and once when he was preparing to use elevator numbered 3 for the transfer of merchandise to one of the departments in the store — he was warned that he was not permitted to operate the elevator. About 1:30 o’clock on the afternoon of March 27, 1951, his dead body was observed on elevator numbered 3, crushed between the platform of the elevator and the third floor. The upper part of the body was on the floor of the elevator and his legs hung in the well. His body was a short distance from the elevator lock. So far as the record goes the accident was unwitnessed and unexplained. We do not know who started the elevator. If it had an operator on it as it approached the third floor there was no evidence that it was anyone other than LeBIane. We do not know whether he was attempting to get off or to get on the elevator at the time he was fatally injured. We do not know in which direction the elevator was moving. There was no merchandise near the place of the accident that LeBIane might be conveying to the shoe departments, nor were there any empty receptacles that he might be returning to the stock room. The record sheds no light as to the purpose he was intending to accomplish by being on the elevator. We cannot accept the inference of the single member adopted by the board that LeBIane might have been caught by the elevator as he was looking down or up into the elevator shaft trying to locate the elevator for that rests on conjecture and surmise. The insurer contends that the death of the employee did not arise out of and in the course of his employment. The burden is, of course, upon a claimant to prove both elements before she is entitled to receive compensation. [337] Barrette’s Case, 312 Mass. 697. Flaherty’s Case, 316 Mass. 719. The Legislature, however, has furnished a statutory presumption in aid of a claimant by G. L. (Ter. Ed.) c. 152, § 7A, inserted by St. 1947, c. 380, which in so far as material provides that where the employee is killed or unable to testify "it shall be presumed, in the absence of substantial evidence to the contrary, that the claim comes within the provisions of this chapter . . .That section has been frequently construed by this court. Goddu’s Case, 323 Mass. 397. Woloshchuck’s Case, 325 Mass. 10. Lapinsky’s Case, 325 Mass. 13. Stepner’s Case, 328 Mass. 230. Lysaght’s Case, 328 Mass. 281; S. C. 331 Mass. 451. Ramos’s Case, 330 Mass. 686. The statute does not mean that the death of an employee which occurs at the place of his employment and during his working hours, and which there is substantial evidence tending to show is disconnected from and unrelated to his employment, is compensable. Where, as here, such evidence exists, the statutory presumption disappears and the decision is to be based upon the entire evidence. Lapinsky’s Case, 325 Mass. 13, 16. Lysaght’s Case, 328 Mass. 281, 284-285. The difficulty with the claimant’s case is that the employee at the time of his death was in a place where all the evidence shows he had no right to be. He was forbidden to operate a freight elevator. The particular elevator upon which he was at the time he was killed was in the Jefferson Building, and it did not lead to the women’s or children’s shoe departments in connection with which the decedent was employed. It was not impossible to use elevator numbered 3 and cross the open Norfolk Place and go into the corner building where these departments were located, but there was no evidence that any such indirect route had ever been followed by any stock boy especially where the employer had furnished ample and direct means of access from the stock room to freight elevators, equipped with regular operators, which were located in the corner building and which went directly to the departments with which the [338] decedent was connected. In the next place, in view of the evidence, there is no basis for the operation of the statutory presumption that his presence on the elevator was connected either directly or indirectly with his employment. We are of opinion that said § 7A does not apply as there was substantial evidence tending to show that his death was not caused by the performance of any duties he was hired to do or anything incidental thereto. Stepner’s Case, 328 Mass. 230. Lysaght’s Case, 328 Mass. 281; S. C. 331 Mass. 451. The final decree is reversed and a decree is to be entered dismissing the claim. So ordered.