5 Mass. App. Ct. 826

May 19, 1977

Nothing in the record indicates that it was within the scope of employment of one Pike, a night watchman-custodian, to furnish transportation to a customer who should leave his car for servicing at the garage operated by the defendant, the watchman's employer, about two hours before the garage should open for the day's business. The defendant's motions for directed verdicts were properly allowed. See Stewart v. Worcester Gas Light Co. 341 Mass. 425, 436-437 (1960). Nothing in Konick v. Berke, Moore Co. Inc. 355 Mass. 463, 468 (1969), or in Pridgen v. Boston Housing Authy. 364 Mass. 696, 714-715, n.10 (1974), leads to a different result.

Judgment affirmed.

Home ROBERT T. MOORE'S (dependent's) CASE.

5 Mass. App. Ct. 826

May 20, 1977

Assuming, without deciding, that the single member erred in considering the statements in the death certificate (which was apparently admitted in evidence without limitation and without objection) relative to the cause of the deceased employee's asbestosis (see G. L. c. 46, Section 19, and Commonwealth v. Lannon, 364 Mass. 480, 483-484 [1974]), the error was rendered immaterial by the reviewing board's primary reliance on its determination in prior proceedings (see Moore's Case, 362 Mass. 876 [1972]) that the employee's asbestosis was an injury which arose out of and in the course of his employment by the self-insurer and that the self-insurer was liable to pay compensation to the employee for the resulting disability. Those proceedings settled the question of the liability of the self-insurer for the employee's condition of asbestosis at the earlier time (Kareske's Case, 250 Mass. 220, 226 [1924]) and, coupled with the death certificate, which was evidence that the employee died on November 29, 1972, and that his death resulted from asbestosis, constituted evidence that the employee's death was "the result of the injuries for which he received compensation" (G. L. c. 152, Section 12) and warranted the board's decision. The self-insurer's suggestion, supported by nothing in the record, that the employee's condition may have been aggravated by some subsequent employment and that the subsequent employer, if any, may thus be liable for the dependency benefits now claimed (see Evans's Case, 299 Mass. 435, 437 [1938]; Trombetta's Case, 1 Mass. App. Ct. 102, 104 [1973]) in no way dispels the fact that there is evidence in the record which supports the

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reviewing board's decision. The dependent did not have a burden of negating the possibility of subsequent injuries or aggravations.

Judgment affirmed. Costs of appeal are to be determined by a single justice.