347 Mass. 80 | Mass. | 1964
Lead Opinion
Moschella seeks damages from the city in this action of tort under Gr. L. c. 84, § 15, for injuries sustained on September 17,1960, because of a defect in a pub-
Moschella, who filed a bill of exceptions and an appeal (see Gr. L. e. 231, § 96), cannot pursue both methods of review. Royal Paper Box Co. v. Munro & Church Co. 284 Mass. 446, 449. We treat the judge’s finding as an appeal-able order for judgment (see United States Plywood Corp. v. Pioneer Display Co. 343 Mass. 150), dismiss the exceptions, and consider the appeal.
Apart from the workmen’s compensation aspect of the case, all facts (as the city admits) are established which would entitle Moschella to recover under Gr. L. c. 84, § 15. Moschella was performing duties for his employer, Hol-brook Livestock Farm, Inc. (Holbrook). While collecting garbage, he sustained serious injuries by reason of a defect in a public sidewalk which could have been found to have been controlled and negligently maintained by the city. The city was given timely notice.
At the time of his injury, Moschella was employed by Holbrook, an independent contractor, to collect garbage from containers placed outside dwellings in the city. Before the contract with Holbrook became effective, the city had collected garbage, using its own employees and trucks. Moschella was one of a crew of four men, employees of Hol-brook and not of the city, assigned to a truck owned by Holbrook. All were hired, paid, and supervised solely by Holbrook. The city made no independent charge to its inhabitants for the work done by Holbrook. The contract, Holbrook’s “only material connection with the [c]ity,” required Holbrook to provide workmen’s compensation for all persons employed under the contract.
Moschella has received workmen’s compensation benefits
The city contends that, as a common employer insured under Gr. L. c. 152, it is immune from an action brought by or on behalf of an injured employee of an independent contractor. Moschella contends that his injury was caused in “circumstances creating legal liability in” the city, that the city is “some person other than the insured,” that Hol-brook’s insurer has not proceeded to enforce the city’s liability, and that he may now do so in his own right under Gr. L. c. 152, § 15.
It is stipulated that if a judgment for Moschella is proper on the agreed facts, judgment is to be entered for him for $4,000. Otherwise judgment is to be entered for the city. There is no doubt that, on the stipulated facts, judgment for Moschella would be proper unless, as matter of law, he is barred by the so called “common employment” doctrine from obtaining judgment against the city.
The “common employment” doctrine was restated in Clark v. M. W. Leahy Co. Inc. 300 Mass. 565, 568, where it was said that c. 152, §§ 15,18, and 24, “in combination have resulted in the establishment of a rule governing common law actions for personal injuries suffered by employees of” certain persons insured under the Workmen’s Compensation Act. For present purposes the provisions of § 18 (as
By the arrangement with Holbrook the city had used its authority (G. L. c. 40, § 4, as amended through St. 1958, c. 613, § 2A) to make a contract “for the exercise of [one of] its corporate powers,” viz. “[f]or the disposal of its garbage . . . for a period not exceeding five years.” See G. L. c. 40, § 1, for applicability of § 4 to cities. Although this service was in a sense a part of the city’s operations and constituted a service provided for Quincy’s residents without a separate charge, the city had no continuing direct participation in the work. That work could reasonably be
Because we hold that there was no common employment, this is not a case where (see Carlson v. Dowgielewicz, 304 Mass. 560, 562), in any event, any compensation insurance (or liability as self-insurer) of the city, or of any common employer other than Holbrook, throws its “shadow over the whole work.” We thus do not reach two troublesome questions argued in the briefs, viz. (1) whether the city can be an “insured person” (see Gr. L. e. 152, § 1 [6]) or a common employer insured under the act (see italicized language of § 69, fn. 2, supra) for purposes of §§ 15,18, and 24, and (2) whether there is any conflict between Saxe’s Case, 242 Mass. 290, 291, and statements made in Pettiti v. Edward J. McHugh & Son, Inc. 341 Mass. 566, 571.
Since judgment for Moschella is proper, the order for judgment is reversed and judgment is to be entered for him in the sum of $4,000 in accordance with the stipulation. Moschella’s exceptions are dismissed, Mr. Justice Kirk and Mr. Justice Spiegel concur for reasons separately stated.
So ordered.
Neither party has raised the question whether Moschella at the time of his injury was a traveler on the public way. See Wershba v. Lynn, 324 Mass. 327, 330-331. We do not consider the question.
Section 69 (as amended through St. 1959, c. 555), so far as relevant to the issue before us, reads: “The commonwealth and any county, city, town or district having the power of taxation which has accepted . . . [St. 1913, c. 807] . . . shall pay to laborers, workmen and mechanics employed by it who receive injuries arising out of and in the course of their employment . . . the compensation provided by this chapter. . . . The terms laborers, workmen and mechanics . . . shall include all employees of any such city . . . who are engaged in work being done under a contract with the state department of public works, and shall include other employees ... of any such . . . city ... to such extent as .. . such . . . city . . . shall determine .... Any . . . city . . . which accepts this section may provide for payment of compensation of certain or all of its employees by insurance with an insurer, subject, however, to the provisions and limitations of this section” (emphasis supplied). Section 69 has been further amended by St. 1960> c. 655.
Section 18 reads in part, “If an insured person enters into a contract . . . with an independent contractor to do such person’s work, or if such a contractor enters into a contract with a sub-contractor to do all or any part of the work comprised in such contract . . . and the insurer would, if such work were executed by employees immediately employed by the insured, be liable to pay compensation ... to those employees, the insurer shall pay to such employees any compensation which would be payable to them ... if the independent or sub-contractors were insured persons. The insurer, however, shall be entitled to recover indemnity from any other person who would have been liable to such employees independently of this section; and if the insurer has paid compensation under this section, it may enforce, in the name of the employee or in its own name and for its benefit, the liability of such other person. . . . This section shall not apply to any contract of am independent or sub-contractor which is merely ancillary and incidental to, and is no part of or process in, the trade or business carried on by the insured, nor to any case where the injury occurred elsewhere than on, in or about the premises on which the contractor has undertaken to execute the work for the insured or which are under the control or management of the insured. The word ‘premises’ . . . shall include the public highways if the contract . , . necessitates the use of the public highways.’’
Concurrence Opinion
(concurring) Mr. Justice Spiegel and I agree that the plaintiff should recover. It is our view, however, that the decision should rest on different grounds. The
Before proceeding with the detailed consideration of the ease before us, the following summary observation is offered: Having received workmen’s compensation from his employer’s insurer, the sole source of the plaintiff’s right to recover against the city is Gr. L. c. 152, § 15. Under that section, if, as to the plaintiff, the city is an insured person (i.e., is not “some person other than the insured”), the plaintiff’s right to recover in an action at law against the city does not exist. On the other hand, if, as to the plaintiff, the city is “some person other than the insured” (i.e., is not an insured person), the plaintiff’s right to recover against the city is clear, and resort to the subjoined doctrine of common employment is unnecessary. Further, if it be the law that the city is under no obligation to provide, or cannot by law provide, workmen’s compensation for the plaintiff, then the city is not an insured person as to the plaintiff, and he may maintain his action.
For expository purposes, however, it is advisable to start, as does the court, from a broad base, by reference to Clark v. M. W. Leahy Co. Inc. 300 Mass. 565. We state in full the same rule as quoted by Qua, J., in Carlson v. Dowgielewicz, 304 Mass. 560, 562. “The insurance of the
For our purposes the significant words are the italicized words in the last sentence of the quoted rule. It is our opinion that the city is not an “insured person” under § 18. We base our opinion (a) upon the scheme of the Workmen’s Compensation Act in the context of general tort liability; (b) upon the express terms of §§ 69-75; and (c) upon our decisions.
We note first the principle of nonliability, in the absence of statute, of the Commonwealth in general, and of its political subdivisions, in actions of tort for the negligence of their officers and employees in the performance of strictly public functions from which is derived no special corporate advantage, no pecuniary profit, and no enforced contribution from individuals particularly benefited. Bolster v. Lawrence, 225 Mass. 387, 389-390. Baumgardner v. Boston, 304 Mass. 100, 106-109. Molinari v. Boston, 333 Mass. 394.
We now consider our decision in Saxe’s Case, 242 Mass. 290, 291, in which the court stated, citing earlier cases, that the “right to compensation [from a city which has accepted G-. L. c. 152, § 69] is expressly limited ‘to such laborers, workmen and mechanics employed by it as receive injuries arising out of and in the course of their employment.’ ” It was held that an employee of an uninsured independent contractor, injured in the performance of his employer’s contract with a city which had accepted § 69, was not entitled, under the provisions of § 18, to receive compensation from the city. The validity of that holding stands unimpaired by our decisions.
It would seem to be clear that the statute, our decisions, and the rule itself recognize that the purpose of the Workmen’s Compensation Act (Bresnahan v. Barre, 286 Mass. 593, 597) cannot be carried out in all cases. “Otherwise there would be no room for the application of Gr. L. (Ter. Ed.) c. 152, § 15, under which an employee may . . . [proceed] in an action at law for damages against ‘some person other than the insured.’ ” Pimental v. John E. Cox Co. Inc. 299 Mass. 579, 584. The reasoning in the Pimental case (58^-586) where the basis for immunity is analyzed (and recognized in Clark v. M. W. Leahy Co. Inc. 300 Mass. 565, 568) is here applicable and adaptable. It is the fact that there is an obligation to pay workmen’s compensation, and the further fact that the obligation must extend to all workmen on the job whether or not immediately employed by the contractor which give the general contractor immunity to actions at law by other employees so engaged. Here the plaintiff is outside the scope of the obligation of the city under the statute to make workmen’s compensation payment. In such a case there is no basis for immunity against the liability which is imposed upon the city by Gr. L. c. 84, § 15.
Amendments to Gr. L. c. 152, since Saxe’s Case, 242 Mass. 290, tend to confirm the conclusion which we reach. The definition of an “insured” or “insured person” in Gk L.
We now refer to Pettiti v. Edward J. McHugh & Son, Inc. 341 Mass. 566, where the court denied recovery to an employee of the Commonwealth who, having received compensation payments, sought damages from an independent contractor and its employee whose negligence caused the injury
It is respectfully submitted that nowhere in the statute is the Commonwealth defined as an “insured” or as “an insured person.” Gr. L. c. 152, § 1 (6). It is likewise submitted that there is no authority in our decisions that the Commonwealth is like “any other insured person.” Our cases, as noted, say the opposite. Further, the definition of the Commonwealth as an “insurer” is carefully circumscribed and can scarcely be the basis for a judicial construction that it thereby became an “insured.” Since the burden of paying compensation to an injured employee of the Commonwealth or of one of its political subdivisions falls upon the taxpayers (0. L. c. 152, § 69), the holding of the court in the Pettiti case that the Commonwealth is the common employer of the negligent employee of the independent contractor, and that the Commonwealth is an insured person, exposes the Commonwealth and towns to an obligation to pay compensation to injured employees of uninsured independent contractors. The holding in Saxe’s Case is precisely to the contrary. We think that the conflict should be resolved in favor of Saxe’s Case.
This exclusion from tibie definition of an “employer” as used in the act prompts the inquiry whether the Commonwealth or a subdivision can be considered a common employer under the act.
See fn. 2 in the court’s opinion.
The city’s reliance upon the language in Collms’s Case, 342 Mass. 389, 393, is misplaced. There the claimant’s decedent was admittedly an employee of the city and the only question was whether § 26 was applicable to him.
Tie city does not contend that the plaintiff comes -within the terms of § 74.
This liability is of course wholly statutory. Wershba v. Lynn, 324 Mass. 327, 331, and cases cited.
The amendment added the words “or is a self-insurer under subsection 2 (a) or 2 (b) of section twenty-five A.” These subsections are not applicable to political subdivisions which accept § 69.
As amended the definition reads: “ (7) ‘Insurer,’ any insurance company, reciprocal, or interinsurance exchange, authorized so to do, which has contracted with an employer to pay the compensation provided for by this chapter. The term ‘Insurer’ within this definition shall include, wherever applicable, a self-insurer, the commonwealth and any county, city, town, or district which has accepted the provisions of section sixty-nine of this chapter” (emphasis supplied). See Burley’s Case, 302 Mass. 46, 48, and Stolts’s Case, 325 Mass. 692, 693, 695.
“Any county, city, town or district which accepts this section may provide for payment of compensation of certain or all of its employees by insurance with an insurer, subject, however, to the provisions and limitations of this section” (emphasis supplied).
