299 Mass. 579 | Mass. | 1938
This is an action of tort brought by an employee of William J. Dorley and Company for damages for personal injuries alleged to have been sustained by the plaintiff as a result of the negligence of an employee of the defendant. The case was tried by a judge and jury, as hereinafter narrated. A motion by the defendant for a directed verdict was denied. The jury returned a verdict for the plaintiff in the amount of $1,000. Before this verdict was recorded the judge, with the consent of the jury,
There was evidence warranting a finding “that the plaintiff was in the exercise of due care and was injured by reason of the negligence of an agent or servant of the defendant acting within the scope of his employment, and that he did not assume the risk of the happening of such an accident as that which caused his injury.” The defendant does not contend that the verdict returned by the jury was vitiated by error or that the plaintiff is not entitled to judgment thereon, unless, on the facts agreed upon by the parties, the plaintiff is precluded by the provisions of the workmen’s compensation law, G. L. (Ter. Ed.) c. 152, from maintaining this action against the defendant.
After the taking of the oral evidence the parties filed a “stipulation” which was received by the judge but, with the consent of the parties, was not read to the jury. This stipulation is as follows: “In 1934 Titus J. Cook and William A. Cook, doing business under the firm name of Cook Bros., 231 Bedford Street, Fall River, Massachusetts, which firm was exclusively engaged in a general trucking and freight forwarding business, decided to erect a freight terminal and garage on Fourteenth Street in Fall River. The said Titus J. Cook and William A. Cook engaged one Deardon, an architect, to draw plans and specifications for said building, to prepare the contracts for the different types of construction and to direct, check and supervise the work of the several contractors, which he did. Contracts were entered into by said Cook Bros, with one William J. Dorley and Company for the mason work, John E. Cox Co. for the steel and iron work, Walter E. Sullivan for the plumbing and heating, and one Aitken for the carpenter work, painting and electrical work on the contemplated
The facts set forth in this stipulation did not justify the order of the judge that a verdict be entered for the defendant.
The plaintiff, an employee of William J. Dorley and Company, having elected to proceed under the workmen’s compensation law, by force of G. L. (Ter. Ed.) c. 152, § 15, cannot maintain an action at law for damages against this defendant for the personal injuries sustained by him arising out of and in the course of his employment, for which he was paid compensation under the workmen’s compensation law. McDonald v. Employers’ Liability Assurance Corp. Ltd. 288 Mass. 170, 174. But, under the same section, the insurer of William J. Dorley and Company, having paid compensation, may enforce in an action at law brought in the name of the plaintiff, or in its own name, the liability
The defendant's sole contention is that it was not "some person other than the insured” within the meaning of G. L. (Ter. Ed.) c. 152, § 15, but that it is entitled to the protection against an action at law for damages to which an "insured” is entitled. This contention cannot be sustained.
If Cook Brothers had been an "insured person” under the workmen's compensation law with respect to the erection of the freight terminal and garage, neither the plaintiff, an employee of William J. Dorley and Company, an independent contractor, engaged upon this job under contract with Cook Brothers, nor the insurer of this independent contractor, in the name of the plaintiff, could have maintained this action against the defendant, another independent contractor engaged upon the same job. Dresser v. New Hampshire Structural Steel Co. 296 Mass. 97. This result follows from the purpose of the workmen's compensation law, stated in Bresnahan v. Barre, 286 Mass. 593, 597, and restated in Dresser v. New Hampshire Structural Steel Co. 296 Mass. 97, 100-101, and in Caira v. Caira, 296 Mass. 448, 449-450, "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.” Within this purpose an insured person is not the less a common employer nor the work a common employment though all or any part of: the work is performed through an independent contractor or subcontractor by
In the present case, however, there was no “.common employer insured under the act” with respect to the work on which the plaintiff as an employee of one independent contractor and the defendant as another independent contractor were engaged. While the work on which the independent contractors and their employees were engaged might well be described as a common job, there was no “common employer” unless it was Cook Brothers, and they were not “insured under the act” with respect to this job of erecting the freight terminal and garage. They were insured upon the “freight forwarding and expressing business” in which, as the parties agreed, Cook Brothers were “exclusively engaged.” It must be taken that the erection of the freight terminal and garage was not covered by their insurance. Indeed this work was not a “part of or process in” the “trade or business” of Cook Brothers, but was “merely ancillary and incidental” thereto, within the meaning of G. L. (Ter. Ed.) c. 152, § 18, so that, under this section, the insurer of Cook Brothers would not be liable to pay compensation to employees of the independent contractors even if such contractors were not insured. Corbett’s Case, 270 Mass. 162, 165-167. See also Cozzo v. Atlantic Refining Co., ante, 260, 267. Whether the insurer would have been free from liability to pay such
The fundamental question for decision is whether the absence of a “common employer insured under the act” is fatal to the defendant’s contention. The doctrine of the Dresser case, and related cases, has not heretofore been applied to a case where there was no such employer. We think it is not to be extended to such a case.
While it has been recognized as “the purpose of the workmen’s compensation act to give all the workmen on a common job the benefit of that act and to put them on substantially the same footing as to compensation to be measured by earning capacity and the extent of injury” (Bresnahan v. Barre, 286 Mass. 593, 597, see Bindbeutel v. L. D. Willcutt & Sons Co. 244 Mass. 195, 198-199; Catalano v. George F. Watts Corp. 255 Mass. 605, 606), this purpose cannot be carried out in all cases. Otherwise there would be no room for the application of G. L. (Ter. Ed.) c. 152, § 15, under which an employee may share in the amount received by an insurer in an action at law for damages against “some person other than the insured.” The words “common job” in the phrase quoted, considered in connection with other language of the opinions, must be taken to mean a “common employment” under a “common employer insured under the act.”
It follows that in accordance with the terms of the report "judgment is to be entered for the plaintiff in the sum of $1,000 plus interest from the date of the verdict.”
So ordered.