319 Mass. 110 | Mass. | 1946
These actions are brought in the name of an injured employee by an insurer which has paid him compensation under the workmen’s compensation law, G. L. (Ter. Ed.) c. 152, to enforce for his and its benefit, under the provisions of § 15 of that chapter, the common law liability of the defendants to the employee. After a verdict for the plaintiff in each case, the judge entered verdicts for the defendants under leave reserved. The plaintiff and the defendants have filed bills of exceptions. The plaintiff complains of the entry of verdicts for the defendants under leave reserved. The defendants complain that if they were not entitled to directed verdicts in their favor at the trial, at least they were entitled to have the jury pass upon the question whether the work being performed by them at the time of the accident was ancillary and incidental to the business of the insured. See § 18.
General Laws (Ter. Ed.) c. 152, § 15, grants to an insurer which has paid compensation under this chapter the right to enforce in the name of the injured employee the liability of a “person other than the insured.” Section 18, which must be read with § 15, provides in part that, if an independent contractor enters into a contract with an insured person to do such person’s work, the insurer shall pay to employees of the independent contractor or of any subcontractor under him any compensation that would be
The words “person other than the insured” in § 15 have been held to mean a person, whether contractor, subcontractor, or employee, who is not protected by the insurance of the principal contractor or so called “common employer.” It results that in the ordinary case where the employee has given no notice to preserve his common law rights in accordance with § 24, no action at law can be brought for a compensable injury by the employee, or by an insurer in the right of the employee, against a contractor, subcontractor, or employee engaged in the “common employment.” Clark v. M. W. Leahy Co. Inc. 300 Mass. 565.
The following are set forth as facts in both bills of exceptions or appear in exhibits referred to therein: C. Reppucci & Co., hereinafter called Reppucci, were general contractors engaged in laying cast iron pipe under a contract with the town of Northbridge which required Reppucci to furnish the pipe. Reppucci purchased the pipe from Warren Pipe Company of Massachusetts, Inc. The Warren company had a contract with the defendant Walter C. Benson Co. Inc. whereby the Benson company agreed for a period of a year to transport pipe for the Warren company from the latter’s plant in Everett to destinations determined by it. The invoices from the Warren company to Reppucci for the pipe read “F. O. B. Whitinsville, Mass.” “via Benson Transfer.” Uniform “straight” bills of lading were attached. The plaintiff was a common laborer in the employ of Reppucci. The defendant Tomaszewicki was an employee of the Benson company, the carrier.
Bencivengo was injured as the result of the fall of a pipe which was being unloaded at the scene of the job from a truck of the Benson company. It is .agreed that there was
The defendants contend that they were engaged in a “common employment” with the injured employee; that all were under the “shadow” (300 Mass. at page 568) of the insurance of the general contractor, Beppucci; and therefore that they are exempt from these actions.
We think the defendants’ contention is not sound. In our opinion the facts disclosed and the evidence are inconsistent with the idea that when Beppucci bought pipe from the Warren company, to be delivered by the latter, the contract of sale, purchase, and delivery was a contract by the Warren company to do Beppucci’s work, even though Beppucci had contracted to furnish the pipe. No part of Beppucci’s work was accomplished by the mere delivery of pipe at the job. Beppucci could have removed the pipe and used it elsewhere, if he substituted other pipe. If a surplus of pipe was delivered it belonged to him. Neither do we think that this contract could be found on any evidence in this case to be “part of or process in, the trade or business carried on by” Beppucci. It was merely a contract to buy, sell and deliver pipe. Title to the pipe did not pass to Beppucci until delivery was complete. G. L. (Ter. Ed.) c. 106, § 21, Rule 5. The Benson company was transporting
The decided cases do not support the defendants’ contention. In Clark v. M. W. Leahy Co. Inc. 300 Mass. 565, and Carlson v. Dowgielewicz, 304 Mass. 560, upon both of which the defendants strongly rely, there was no sale. In the Clark case the general contractor simply hired the defendant to transport pipes from the railroad to the work. A finding that this was within the “common employment” was held warranted on the evidence. In the Carlson case the general contractor had employed another to deliver “aggregate” to a machine for laying concrete paving on the job. The opinion states (page 563) that this contract was part of or process in the trade or business carried on by the insured. It was not intended to imply that this statement rested upon the other facts stated in the opinion. Reference to the original record of that case shows that the statement rested upon facts in evidence, substantially admitted in the plaintiff’s brief, to the effect that the general contractor himself operated a mixing plant about two and one half miles from the job, where he mixed the aggregate, and whence he procured it to be transported to the
If we assume, without deciding, that the evidence as to the customary manner of unloading had some tendency to disclose the boundaries established by understanding of the parties between the work of Reppucci and that of the Warren company or its carrier the Benson company, still that evidence had no tendency to show that by the contract of sale and delivery between the Warren company and Reppucci the carrying on of any part of Reppucci’s trade or business had been entrusted to the Warren company. The facts stated as such in the bills of exceptions required a ruling that § 18 did not apply.
In each case the plaintiff’s exceptions are sustained, and the defendants’ exceptions are overruled. The verdicts entered by the judge under leave reserved are set aside. Judgments are to be entered for the plaintiff on the verdicts of the jury.
So ordered.