308 Mass. 157 | Mass. | 1941
The question in this case is whether the employee at the time of-his injury on July 14, 1939, was in the employment of E. C. Blanchard Co., Inc., hereafter referred to as Blanchard, or in the employment of Metal Clad Doors, Inc., hereafter referred to as the metal company. The insurer of Blanchard paid compensation to the employee, and in this proceeding under G. L. (Ter. Ed.) c. 152, § 15A, seeks reimbursement from the insurer of the metal company. The reviewing board found that Blanchard was a general contractor engaged in the erection of a schoolhouse for the city of Lynn. Part of the funds for this project were supplied by the Federal government through an agency known as the Public Works Administration, which exercised some control over the execution of Blanchard’s contract with the city for the purpose of seeing that Blanchard complied with certain Federal laws and regulations, including those requiring that each contractor and subcontractor shall be certified by this Federal board before doing any work upon the contract. Blanchard’s contract with the city required it (Blanchard) to furnish and install three fire doors. On January 16, 1939, Blanchard wrote the metal company, accepting its quotation of $80 for furnishing and delivering the doors at the school together with the necessary hardware except locks, and stating that, at
There was testimony that Callbeck, the president of the
Evidence showing to whom a person owed obedience in the performance of the details of his work may be material in showing the relationship between them, yet it is settled that under the workmen’s compensation law there must be a contract of service, either express or implied, before one can be considered as an employee of another. Cameron v. State Theatre Co. 256 Mass. 466. McDermott’s Case, 283 Mass. 74. Donnelly’s Case, 304 Mass. 514. Scordis’s Case, 305 Mass. 94. The fact that Wanders was paid by Blanchard is some evidence that he was its employee but it loses some of the effect it otherwise might have because such payment was made in accordance with an arrangement between Blanchard and the metal company by which Blanchard was to be credited with the amount paid, and in the light of the further finding of the board that one of the purposes for which this method of payment was adopted was to circumvent certain Federal regulations. McAllister’s Case, 229 Mass. 193. Chisholm’s Case, 238 Mass. 412. Peck’s Case, 250 Mass. 261. Commonwealth v. Weinfield’s Inc. 305 Mass. 108. Whether Wanders had been hired by Blanchard or lent to the latter by the metal company or continued as an employee of the company in installing the fire doors was, upon all the evidence, a question of fact for the determination of the board. The finding of the board
The appellant contends that the finding of the board, that putting Wanders on the Blanchard payroll “was simply a device to obviate P. W. A. regulations,” was a finding that the contract between Blanchard and the metal company was violative of these regulations and that the contract ought not to be given effect by this court. None of these regulations appears in the record. The evidence tended to show that there was a regulation forbidding the subletting of a contract without the consent of a Federal administrative board, and that it was for the purpose of avoiding this regulation that Blanchard put the employee upon its payroll and paid him upon the completion of his work. We assume in favor of the appellant that this contention is open. Sullivan v. Crowley, 307 Mass. 189. Finlay v. Eastern Racing Association, Inc., ante, 20. Even if the contract of subletting was not enforceable between Blanchard and the metal company, the existence of such a contract could be considered in determining the improbability of Blanchard’s making any contract of hire with Wanders and may have furnished an explanation of the payment of wages to him by Blanchard. The issue before the reviewing board was not the enforcement of any contract between Blanchard and the metal company but the issue was, which of these two was the employer of Wanders at the time he was injured. The validity of the contract was collateral to this issue, and if it were void that would not be a defence in this proceeding between two insurers, neither of which was a party to this contract. It was open to them to show the relation of Wanders to both Blanchard and the metal company, Guaranty Security Corp.
Recree affirmed.