318 Mass. 373 | Mass. | 1945
The plaintiff, an employee of one Dwyer, transported a gasoline power shovel, owned by the defendant and weighing about twenty tons, from Camp Edwards to Quincy on a trailer owned by Dwyer, and was injured, while the shovel was being unloaded, through the alleged negligence of an employee of the defendant. The judge, subject to the plaintiff’s exception, ordered a verdict for the defendant.
The evidence was sufficient to support findings that the plaintiff was not guilty of contributory negligence and that
Under G. L. (Ter. Ed.) c. 152, § 18, an employee of an independent contractor who is performing a part or portion of the work of the principal employer may, if injured while executing the work, enforce payment of compensation by the insurer of that employer. The purpose of the section is to prevent that employer from escaping the obligation of the compensation act by letting out a part of his work to irresponsible subcontractors or independent contractors. But to come within the statute, the particular activity in which the employees of an independent contractor are engaged must be a “part of or process in” the trade or business conducted by the insured principal and not “merely ancillary and incidental” thereto. The character and nature of the business must be determined, and if the work done by an independent contractor is really a branch or department of that business or a process in the business, it constitutes a part of the business itself. If it is customary for those engaged in a similar business to perform the work by their own employees in the ordinary course of the business or if, whatever the custom is, one so engaged usually has such work performed by his own employees, then such work may be found to be a part of his business. Shannon’s Case, 274 Mass. 92. Canning’s Case, 283 Mass. 196. MacAleese’s Case, 301 Mass. 25. See Hill’s Case, 268 Mass. 491; Fontaine’s Case, 274 Mass. 75. An established practice of those engaged in a business similar to the defendant’s to arrange for the transportation of power shovels by an independent contractor would be material evidence indicating that the transportation was not a part of the business.
One may be engaged in the business of transportation as was the plaintiff’s employer, or one may conduct a business a part of which includes the transportation of materials fabricated for a building which he has undertaken to erect or the carriage of materials and supplies for the accomplishment of a project which he has contracted to perform. Comerford’s Case, 229 Mass. 573. Clark v. M. W. Leahy Co. Inc. 300 Mass. 565. Carlson v. Dowgielewicz, 304 Mass. 560. Dittmar v. Owners of Ship V 593, [1909] 1 K. B. 389. In such cases the transportation is a part of the business. One may also be engaged in a business that cannot be conducted unless he can secure a supply of raw material or can ship the finished product to the various markets. It is hard to imagine a business that is not dependent in some way upon transportation. In such instances, while transportation is a necessity, it does not thereby become a part of or a process in the business but it continues as ancillary and incidental thereto. Pimental v. John E. Cox Co. Inc. 299 Mass. 579. Caton v. Winslow Bros. & Smith Co. 309 Mass. 150. McGrath v. Pennsylvania Sugar Co. 282 Penn. St. 265. Perkinson v. Thomas, 158 Va. 699.
No general rule can be laid down that a teamster or truck-man employed by an independent contractor is or is not engaged in part of the principal’s business. Each case must be judged by the pertinent principles of law as applied to the facts that could be found upon the evidence and the permissible inferences from those facts. Those facts and inferences vary in different cases. The decision ordinarily but not always rests in the domain of fact. See cases collected in 150 Am. L. R. 1242. To be sure, the business of excavating by means of a gasoline power shovel required the transportation of the shovel from place to place, but such transportation did not thereby as matter of law become a part of the defendant’s business. The jury were not required to find that the transportation was anything more than ancillary and incidental to the business of operating a power shovel. There was error in directing a verdict for the defendant.
Exceptions sustained.