This case turns upon the construction of that part of G. L. (Ter. Ed.) c. 152, § 26, as appearing in St. 1943, c. 529, § 8, which was originally inserted by St. 1930,
There appears to be no dispute about the facts. The claimant’s own testimony was in substance that on January 26, 1949, while he was engaged by Milano Bros., Inc., in hauling gravel from Danvers to “an M. T. A. job” in East Boston, using his own truck, driven by himself, he was injured by the tipping over of the truck. He was paid $4.50 an hour for truck and driver and had to pay for his gasoline and oil. If for some reason he did not want to drive he could put someone else on the truck. When asked if he would decide how fast to travel he replied that he had to stay within the speed laws. The general manager of Milano Bros., Inc., testified that it made no difference to him if anybody else drove Ferullo’s truck, and that when a week was up he got a bill from the claimant as “Ferullo Trucking Company” and paid him for himself and his truck.
The single member found, among other things, that the claimant determined the speed at which he should operate his truck within the limit of the speed laws; that he was not required to drive the truck himself; and that he was an independent contractor and not an employee of Milano Bros., Inc. The single member dismissed the claim. The reviewing board affirmed the findings, rulings, and decision of the single member, but the Superior Court entered a decree in favor of the claimant, from which the insurer of Milano Bros., Inc., appeals.
The claimant takes the position that the act of 1930 created a conclusive presumption that a person in his situation with reference to Milano Bros., Inc., was an employee of that corporation for purposes of compensation.
Statutes are to be construed in the light of the preexisting common and statutory law with reference to the mischief probably intended to be remedied.
Tilton
v.
Haverhill,
Before the statute of 1930 it had long been settled that at common law, where an owner of a vehicle let it out with a driver to a person who gave directions as to where he desired the vehicle to go and what work he desired to have done, but had no control over the method of driving, the driver remained in the employ of the owner and did not become the employee of the hirer.
Shepard
v.
Jacobs,
We think it was the law as declared in this last group of cases which the act of 1930 was intended to change. It might well be thought a hardship that an employee while still engaged in his employer’s work should lose all compensation the moment he started to drive a vehicle, even though the method of driving was not subject to dictation by the employer. Such a hardship could be corrected by a comparatively simple change without breaking down the general distinction between employees and independent contractors which underlies the whole compensation law. Under this construction of the act of 1930 the general relation of employer and employee must exist before the presumption of the statute can become operative, and the effect of the presumption is to continue in force the obligations of the compensation law while the employee drives on his employer’s business.
This construction is consistent with the title of the act of 1930 which is "An Act relative to the payment of compensation under the workmen’s compensation laws for in
The decisions since the act of 1930 became operative are consistent with our present construction of that statute.
Manley’s Case,
We do not believe it was the purpose of the act of 1930 to turn every driver of his own vehicle into an employee of every person for whom he does work. If it had that effect it would seem that the driver of his own taxicab would become by conclusive presumption of law the employee of any person who, while about his business, hailed the cab. Neither do we think the act was intended to make a person in the position of the present claimant an employee whenever he himself does the driving but to leave him an independent contractor when he sends another driver with his vehicle. The board found that the claimant was an independent contractor. On the authority of the cases hereinbefore cited we think the evidence as to the nature of his engagement by Milano Bros., Inc., required a finding that the claimant was at all times an independent contractor and never became an employee.
Strong’s Case,
The decree is reversed, and a decree is to be entered dismissing the claim.
So ordered.
I regret that I am unable to concur in the opinion of the majority of the court in this case. For reasons which shall hereinafter appear I am of opinion that this case should be recommitted to the Industrial Accident Board for further findings of fact.
I am unable to agree with the opinion in so far as it is predicated upon the proposition that the evidence would not warrant a finding that the underlying general relationship between the assured and the claimant was that of employer and employee. I believe such a relationship could be found to exist, and in this connection it seems sufficient to direct attention to the testimony of the general
The sole issue therefore is whether or not such a general relationship did exist for the majority opinion appears to indicate that, if it did, the claimant would be entitled to an award under that part of G. L. (Ter. Ed.) c. 152, § 26, which was originally inserted by St. 1930, c. 205.
I think it necessary to recite the findings of the single member which were as follows: "The first issue resolves itself as to whether the claimant was an independent contractor or an employee of the assured. On this issue I find, on the evidence, these to be the material facts: that the claimant, Patsy Ferullo, was the owner of a dump truck, that he entered into an agreement with Milano Bros., Inc., the assured, whereby the claimant was to furnish his truck and driver to the assured for the purpose of hauling gravel from a gravel pit in Danvers to East Boston, for which he was to receive for the services of his truck and driver $4.50 per hour for each hour that the truck and driver was so engaged; that under the agreement the claimant himself was not required to be the driver of the truck but could at his option furnish anyone.to drive it; that the assured had a contract to haul gravel for an M. T. A. project in East Boston and used his own trucks on this job, and in addition thereto, hired other truck owners’ trucks also under agreements similar to the one with the claimant; that the assured listed the drivers of its own trucks on its payroll as its own employees and so considered them, paying the required social security payments, etc., but did not consider the drivers of the hired trucks as such, and did not carry them on its payroll as its employees. I also find that under the agreement, the claimant worked on such days and for such hours as the assured requested him, and that the assured could lay off his truck at his pleasure; that his usual orders for [from?]] the assured when his truck worked, was to be at the pit at Danvers at 7:00 a.m. where it would
There was the further uncontradicted testimony of the claimant that “When he delivered that load on January 26, 1949, there was snow and ice on the ground and he had to go back for another trip. He did not want to, but when he got to the pit he got a load. He could not make the grade on a hill and the truck tipped over at Danvers. He hurt his shoulder and arm.”
After these findings, the single member stated that “there is no evidence that the assured in any way exercised any control over the claimant with respect to the method and manner by which the claimant should operate his motor vehicle,” and as a result he in effect ruled that such cases as
Hewitt’s Case,
The claimant, however, relies upon G. L. (Ter. Ed.) c. 152, § 26, as amended, the material part of which reads: “For the purposes of this section any person, while operating or using a motor or other vehicle, whether or not belonging to his employer, with his employer’s general authorization or approval, in the performance of work in connection with the business affairs or undertakings of his employer, and whether within or without the commonwealth, . . . shall be conclusively presumed to be an employee.” Statute 1930, c. 205, was first passed upon in
Manley’s Case,
This statute as construed in Manley’s Case in effect provides that compensation is dependent not upon the relationship of the parties solely as to the operation of the motor vehicle, as was the case prior to St. 1930, c. 205, and appears to have been so held in the cases relied upon by the single member, but rather upon the general relationship of the parties.
The effect of St. 1930, c. 205, has been similarly declared in
Higgins’s Case,
I am of opinion that the facts in this case are substantially similar to the facts in
Noble
v.
Greenbaum,
For other cases where the claimant has been held to be an employee rather than an independent contractor regardless of St. 1930, c. 205, see
McDermott’s Case,
The record here does not disclose that St. 1930, c. 205, or
Manley’s Case
was brought to the attention of the single member. Clearly the rule in the cases relied upon by the single member and in
Strong’s Case,
The claimant argues that St. 1930, c. 205, in circumstances like those in the case at bar creates a conclusive presumption that the claimant is an employee of the assured. I do not agree. I am in accord with the majority opinion that in order that this statute become operative the relationship of employer and employee in some form must be established.
It may be well to emphasize that the degree of control and the relative weight accorded factual indicia of control (see Restatement: Agency, § 220) required to constitute one an employee as that term is used in the compensation statute involve considerations not present when confronted with the same issues pertaining to the vicarious liability of the master for acts of his servant. A constricted interpretation of the word employee would not comport with the beneficent purpose of the compensation statute as a whole. In a case involving the social security act,
United States
v.
Silk,
There is no finding in the decision of the single member or of the reviewing board, apart from the finding that at the time of the injury the claimant was operating the truck as an independent contractor, that the relationship of employer and employee generally did or did not exist between