Duart v. Simmons, 231 Mass. 313

Duart v. Simmons

231 Mass. 313 | Mass. | 1918

Rugg, C. J.

The plaintiff received injuries in the course of his employment by one Davis, who by an independent contract furnished the plaintiff and two other laborers to the defendant for work in shovelling coal in the hold of a schooner tied up at the defendant’s wharf. The contract of Davis as independent contractor was for the performance of a part of the business carried on by the defendant on his own premises. The defendant was a subscriber under "the workmen’s compensation act. St. 1911, c. 751. The plaintiff’s employer, Davis, was not a subscriber under that act. It is urged that the plaintiff is confined to the remedies afforded by the act. Its terms are broad enough to include an employee such as was the plaintiff, working in connection with the discharge of the cargo of a vessel engaged in interstate or foreign commerce. In this connection only “masters of and seamen on vessels engaged in interstate and foreign commerce” are excluded expressly from the operation of our act by its terms. St. 1913, c. 568. Morrison v. Commercial Tow Boat Co. 227 Mass. 237.

The accident occurred in the course of the employment of the plaintiff in the discharge of a cargo of coal from a vessel engaged in interstate commerce while she was lying in navigable waters. *318His work and his injury were maritime in their nature. Atlantic Transport Co. v. Improvek, 234 U. S. 52, 59, 60. Clyde Steamship Co. v. Walker, 244 U. S. 255. By art. 3, § 2, of the Constitution of the United States, the judicial power of the United States extends “to all cases of admiralty and maritime jurisdiction.” The Judicial Code, of the United States, act of March 3, 1911, c. 231, 36 U. S. Sts. at Large, 1161, by § 256, cl. 3, vests exclusive jurisdiction in the federal courts “ Of all civil causes of admiralty and maritime jurisdiction; saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it.” It was decided in Southern Pacific Co. v. Jensen, 244 U. S. 205, that the compulsory workmen’s compensation act of New York was unconstitutional so far as its terms applied to maritime injuries. It is earnestly argued that the case at bar is distinguishable from the Jensen case. The grounds urged are that our act is perptissive and not mandatory, as was the New York law. Under, our act it is elective both with the employee and likewise with the employer whether they shall become subject to its terms. An employer, who chooses to become a subscriber under our act, is liable to the employees x>f his subcontractor situated with reference to his work as was the plaintiff. He has elected so to become liable. The plaintiff as employee of the subcontractor, by failing to give notice to the employer as required by Part I, § 5, of the act, has decided to become bound by the act and to waive his common law right. White v. George A. Fuller Co. 226 Mass. 1. Young v. Duncan, 218 Mass. 346. These are the cogent arguments put forward in behalf of the defendant.

The workmen’s compensation act (except in Part I) is not an amendment to the common law, but the establishment of heretofore unknown obligations, compensations and methods of procedure, all differing from and in place of those afforded by the common law. The general purpose of the act was to substitute, in cases to which it is applicable, for common law or statutory rights of action and grounds of liability, a system of money payments based upon the loss of wages by way of relief for workers receiving injury in the course of and arising out of their employment. As stated in the Report of the Massachusetts Commission on Compensation for Industrial Accidents submitted in 1912, *319which framed the act adopted by the Legislature (without change except in Part V, § 3, whereby all liability insurance companies were granted the same privileges as the Massachusetts Employees’ Association in the matter of insuring), at page 46: “The Massachusetts dow may be briefly characterized as ah elective compensation insurance law giving compensation for all injuries arising out of employment irrespective of negligence except those due to the serious and wilful misconduct of the injured employee. The basic principle of the act is that the cost of injuries incidental to modern industry should be treated as a part of the cost of production. The act was framed, with that end in view.” The payments provided by the act are founded simply upon such injury and are entirely disconnected with any theory of fault on the part of the employer or right on the part of the employee established by law before the passage of the act save in instances of “serious and wilful misconduct.” With this single exception, considerations of fault, negligence, tort or due care are excluded from proceedings under the act. The amounts of such payments bear relation to the amount of wages received by the employee, are to be determined speedily and are to be paid commencing forthwith, and ordinarily are to be continued in small instalments regularly during a given period with the privilege of commutation by a single payment under certain restrictions. All payments are by way of financial relief for inability to earn wages, or for deprivation of support flowing from wages theretofore received. The word “compensation” in the connection in which it is used in the act, means the money relief afforded according to the scale established and for the persons designated by the act, and not the compensatory damages recoverable in an action at law for a wrong done or contract broken.

The ground of the Jensen decision as we understand it is that the kind of legislation represented by workmen’s compensation acts is beyond the jurisdiction* of the States so far as it relates to admiralty and maritime affairs. The reasoning of that decision seems to us to apply equally to an elective as to a compulsory workmen’s compensation act. Consent of parties cannot confer jurisdiction. A statute which in its nature is outside the jurisdiction of the State because within the exclusive domain of the federal government, cannot confer rights or be a bar to the en*320forcement of common law obligations. This question never before has been raised as to our act, and in several instances without discussion its provisions have been enforced as to maritime injuries. Brightman’s Case, 220 Mass. 17. McManaman’s Case, 224 Mass. 554. See Gillen’s Case, 215 Mass. 96. These cases arose, however, before the decision of the Jensen case. Although our act is constitutional in its general aspects, both under the State and Federal Constitution, Young v. Duncan, 218 Mass. 346, Hawkins v. Bleakly, 243 U. S. 210, we feel constrained by the controlling authority of the Jensen case to hold that it does not apply to injuries having a maritime origin. A similar conclusion has been reached for the same reason by the Supreme Court of Wisconsin with regard to the workmen’s compensation law of that State, which in respect of being optional and not compulsory resembles our own act. Neff v. Industrial Commission of Wisconsin, 166 Wis. 126. Seemingly the exclusive nature of the federal jurisdiction has been released as to cases of this sort occurring since October 6, 1917, by 40 U. S. Sts. at Large, c. 97, § 2, approved on that date, amending the Judicial Code of the United States, § 256, St. of March 3, 1911, c. 231; 36 U. S. Sts. at Large, 1161. It follows in our opinion that, by reason of the decision in the Jensen case, the plaintiff’s rights and the defendant’s obligations must be determined according to the common law.

There was evidence of the plaintiff’s due care. Whether he moved with adequate alacrity away from under the hatch and with sufficient vigilance for his own safety watched the tub of coal were questions of fact to be decided in the light of his explicit testimony and the fall of the tub of coal and his consequent injury.

The defendant, in view of the evidence, hardly can contend that the plaintiff was a servant of the defendant and that hence the fellow servant defence will avail. The plaintiff was employed by Davis, who contracted with the defendant to unload the coal from the schooner at a given price per ton. Although all the other men at work in connection with the discharge of 'the cargo, except the plaintiff and his two companions who shovelled the coal into the tubs in the hold of the schooner, were employed, by the defendant, and all the appliances were furnished by him, the plaintiff does not appear to have been working under the direction of *321the defendant or his servants. The plaintiff therefore can recover for injuries sustained by him through the negligence of the servants of the defendant while acting within the scope of their employment. Hooe v. Boston & Northern Street Railway, 187 Mass. 67. McLellan v. Boston & Maine Railroad, 212 Mass. 153.

The defendant was not responsible for the conduct of the servants of Davis, the independent contractor. If the plaintiff’s injuries resulted from their negligence, he cannot recover from the defendant. The trial does not appear to have proceéded on the theory that the plaintiff sustained injury from the negligence of his fellow employees. A careful perusal of the record fails to disclose any conduct on their part contributing to the injury of the plaintiff. The jury were instructed with adequate amplification that the plaintiff would be entitled to a verdict only by showing that his injury was the consequence of the negligence of the defendant or of those employed by him. Upon this state of the evidence that was enough. It was unnecessary to state further that the plaintiff could not recover if injured through the negligence of a fellow servant. A request for instruction to the jury respecting a sound principle of law not applicable to the evidence is denied rightly.

There was no error in denying the requests to the effect that the defendant was not responsible if the rope, (whose parting permitted the fall of the tub upon the plaintiff,) was purchased from a. reputable maker and gave way because of a hidden flaw after being used a few times. On the defendant’s own testimony, he had owned the rope for about six months and had used it for unloading one cargo, of coal before the one on which it was being used at the time of the accident. The instructions given upon this point cannot be pronounced insufficient under all the circumstances.

Exceptions overruled.