Albert v. Welch

• Decision Date: 05 November 1971
• Citation: 274 N.E.2d 821,360 Mass. 397
• Parties: Cleaven ALBERT v. Frederick L. WELCH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 821

274 N.E.2d 821

360 Mass. 397

Cleaven ALBERT v. Frederick L. WELCH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 15, 1971.

Decided Nov. 5, 1971.

Leonard Glazer, Milton, for plaintiff.

John P. McGloin, Lynn (Edward T. Brady, Jr., Boston, and Arthur E. Gustafson, Jr., Lynn, with him), for defendant.

Before TAURO, C.J., and CUTTER, REARDON, QUIRICO, and BRAUCHER, JJ.

BRAUCHER, Justice.

This is an action of tort to recover damages for injuries sustained by the plaintiff while in the course of his employment by the defendant. The declaration is in two counts. The first count alleges that on or about August 20, 1963, the plaintiff was employed by the defendant as a truck driver; that the trucking business, particularly the hauling of building materials, was determined by the Commissioner of the Department of Labor and Industries to be hazardous employment; that the defendant on the date in question failed to carry workmen's compensation insurance as required by law; that the plaintiff sustained severe injuries which arose out of and in the course of his employment by the defendant; and that the defendant is deprived of the defences set forth in G.L. c. 152, § 66. Count 2 is essentially the same as count 1, but omits the allegation as to hazardous employment.

Following the plaintiff's opening statement, the trial court allowed the defendant's motions for directed verdicts on counts 1 and 2. The case is here on the plaintiff's exceptions.

The plaintiff's opening statement included the following. The defendant was required to carry workmen's compensation insurance both because the plaintiff's job as a truck driver was hazardous and because the defendant had more than three employees. Nevertheless, the defendant did not have the required insurance. On August 20, 1963, the plaintiff had driven one of the defendant's trucks to Hamilton. On the return trip, the truck stopped running in Danvers. He called the defendant, who drove out in another large truck a few hours later and asked the plaintiff what was wrong. The plaintiff told him the fuel pump was gone. The truck was then towed back to the defendant's place of business in Roxbury. Prior to arriving at the defendant's place of business, the defendant stopped at a Shell gasoline station and filled the gasoline tanks of the defective truck. When they arrived in Roxbury, the defendant told the plaintiff to 'take off the fuel pump. Someone is going to be coming after supper to put on a new one.' The plaintiff removed the fuel pump and laid it on the platform of the truck. He then went to the cab of the truck to remove his jacket and the ignition key. As he reached up to open the cab door, the truck caught fire and he was badly burned.

The record is unclear as to why the defendant's motions for directed verdicts were granted. The defendant argues that there was a fatal variance in that the...