Alberts v. Brockelman Bros. Inc.

• Decision Date: 03 December 1942
• Citation: 45 N.E.2d 392,312 Mass. 486
• Parties: ALBERTS v. BROCKELMAN BROS. Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

312 Mass. 486

45 N.E.2d 392

ALBERTS

v.BROCKELMAN BROS. Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 3, 1942.

Exceptions from Superior Court, Suffolk County; Hammond, Judge.

Action by Gertrude Alberts against Brockelman Bros., Inc, for personal injuries. A jury's verdict for plaintiff was set aside and entry of verdict for defendant ordered, and plaintiff brings exceptions.

Exceptions sustained, and entry of judgment on verdict for plaintiff ordered.

Before FIELD, C. J., and DONAHUE, QUA, COX, and RONAN, JJ.

J. H. Devine and J. R. Spence, both of Boston, for plaintiff.

P. R. Frederick, of Boston, for defendant.

RONAN, Justice.

The plaintiff, an employee of a Boston firm, which was a manufacturers' representative and sold for the account of manufacturers their products including a certain cleansing fluid, was instructed by her employer to go to the Lawrence store of the defendant to demonstrate and promote the sales of the fluid. At the store she arranged a display of various packages of the fluid in a booth which had been prepared for the demonstration, sold a small quantity of the fluid which was a part of the defendant's stock in trade, and turned the proceeds over to the defendant. On her way out to lunch, her heel caught in a hole in the floor and she received personal injuries. The verdict of the jury in her favor was upon leave reserved, set aside and, subject to her exception, a verdict was ordered to be entered for the defendant.

Both the plaintiff's employer and the defendant were insured under the workmen's compensation act. The plaintiff, unless she reserved her rights at common law, could not bring an action at law against her employer for personal injuries arising out of and in the course of her employment, G.L. (Ter.Ed.) c. 152, § 24; and an ‘insured person’ would have the same immunity from an action at law to recover damages for such injuries arising out and in the course of her employment with an independent contractor with whom the ‘insured person’ had made a contract to do such person's work and where, if the work was performed by her in accordance with a contract made directly by her with the ‘insured person,’ the latter would be liable under the workmen's compensation law, unless the work to be done by the independent contractor under his contract with the ‘insured person’ is ‘merely ancillary and incidental to, and is no part of or process in, the trade or business carried on by the insured’ or unless the injury occurred on or about the premises where the contractor had undertaken to perform the work or which were under the control and management of the latter. G.L. (Ter.Ed.) c. 152, § 18. If the plaintiff's employer had contracted to do a part of the defendant's trade or business and she was injured in the performance of that work, then she was covered by the insurance of the defendant and she could not recover damages in an action at law against the defendant as the defendant was an ‘insured person.’ G.L. (Ter.Ed.) c. 152, § 15. Willard v. Bancroft Realty Co., 262 Mass. 133, 159 N.E. 511;Cozzo v. Atlantic Refining Co., 299 Mass. 260, 12 N.E.2d 744;Clark v. M. W. Leahy Co., Inc., 300 Mass. 565, 16 N.E.2d 57;MacAleese's Case, 301 Mass. 25, 16 N.E.2d 63.

The plaintiff's employer sent its demonstrators for a week at a time to various stores where this cleansing fluid was sold. All it sought and secured by its contract with the defendant was an opportunity to push the sales of the fluid. It was not hired by the defendant to sell the defendant's goods, but it was understood that whatever fluid was sold during the demonstration was to come from the defendant's supply. It was not to be paid anything by the defendant for conducting the demonstration, and the consideration it received was whatever advantage resulted from increased sales of the cleansing fluid. The defendant did not pay any wages to the plaintiff. Her presence at the store was solely in the interests of her employer. She was not...