286 Mass. 593 | Mass. | 1934
This is an action of tort to recover damages for the death and conscious suffering of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant. The defendant and the intestate were fellow employees of a common employer, the William B. Whiting Coal Company, and the injuries were received on the premises of the latter. The intestate was a general
The rights of the parties to the present action must be determined in the light of the provisions of the workmen’s compensation act. The common employer was insured under that act and the plaintiff has received the benefits afforded by that act. The plaintiff brings this action under G. L. (Ter. Ed.) c. 152, § 15. Its relevant words are these: “Where the injury for which compensation is payable was caused under circumstances creating a legal liability in some person other than the insured to pay damages in respect thereof, the employee may at his option proceed either at law against that person to recover damages or against the insurer for compensation under this chapter, but not against both. If compensation be paid under this chapter, the insurer may enforce, in the name of the employee or in its own name and for its own benefit, the liability of such other person; and in case the insurer recovers a sum greater than that paid by it to the employee, four fifths of the excess shall be paid to the employee.”
At common law and apart from the workmen’s compensation act, the plaintiff might maintain an action to recover
The precise question here presented for decision is whether one employee who, acting negligently in the course of his employment, injures a fellow employee of an insured common employer whereby such injured fellow employee receives compensation from the insurer under the workmen’s compensation act, is "some person other than the insured” within the meaning of those words in G. L. (Ter. Ed.) c. 152, § 15, already quoted, so that the insurer may enforce his liability in accordance with that section.
The plaintiff’s intestate was injured by the tort of the defendant committed while each was acting within the scope of his employment by the common employer. The employer was required by accepting the workmen’s compensation act to protect the plaintiff’s intestate from the consequences of such conduct by the defendant. It was then an incident to the employment of both the plaintiff’s intestate and the defendant that there should be protection against such injury by the insurance of the employer under the workmen’s compensation act. It was held in White v. George A. Fuller Co. 226 Mass. 1, that a general contractor, insured under the workmen’s compensation act, was not subject to an action at law by the employee of an uninsured subcontractor injured through the negligence of an employee of the general contractor, and that the remedy of such injured person was solely under the act. In Bindbeutel v. L. D. Willcutt & Sons Co. 244 Mass. 195, the insurer of a subcontractor, who had paid compensation under the act to an employee of such
The principle of these decisions governs the case at bar. One purpose of the workmen’s compensation act was to sweep within its provisions all claims for compensation flowing from personal injuries arising out of and in the course of employment by a common employer insured under the act, and not to preserve for the benefit of the insurer or of the insurer and those injured liabilities between those engaged in the common employment which but for the act would exist at common law. That is the broad ground underlying the decisions already cited. It is equally applicable to the case at bar. An individual employee stands on the same footing with respect to such liability as a contractor or subcontractor.
The other questions argued need not be considered.
Exceptions overruled.