Armburg v. Boston & M.R.R.

• Decision Date: 12 September 1931
• Citation: 177 N.E. 665,276 Mass. 418
• Parties: ARMBURG v. BOSTON & M. R. R.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

276 Mass. 418

177 N.E. 665

ARMBURG

v.BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 12, 1931.

Report from Municipal Court of Boston; J. T. Zottoli, Judge.

Action by Fred Armburg against the Boston & Maine Railroad. The trial judge made finding for the plaintiff. On report.

Order dismissing report affirmed. For other cases see same topic and KEY-NUMBER in all Key -numbered Digests and IndexesC. W. Rowley and D. J. Doherty, both of Boston, for plaintiff.

A. W. Rockwood, of Boston, for defendant.

RUGG, C. J.

The plaintiff seeks by this action to recover compensation for personal injuries sustained by him by reason of the derailment of a railroad motorcar, on which he was riding in the course of his employment by the defendant, as a result of the negligence of a fellow employee. These facts, as of the time of the injury to the plaintiff, were agreed at the trial: The defendant was a common carrier for hire of freight and passengers operating tracks in Maine, New Hampshire, Vermont and New York, as well as in Massachusetts, and was conducting both interstate and intrastate commerce of considerable magnitude, and was not a subscriber under the Workmen's Compensation Act of this commonwealth, G. L. c. 152; the plaintiff was engaged in intrastate and not in interstate commerce; there was no evidence to support a finding that the injury to the plaintiff was due to any contractual assumption of risk on his part, or that he was not in the exercise of due care. The ruling of the trial judge that there was no evidence of negligence of the defendant as distinguished from negligence of its servants or agents is not now challenged. The trial judge also found that the injury to the plaintiff was caused by the negligence of a fellow servant, and made a finding for the plaintiff.

The defendant contends that the Workmen's Compensation Act (hereafter called the act) is not applicable to a railroad engaged in both intrastate and interstate commerce, and that hence the defense that the injury to the plaintiff was caused by a fellow servant is open to it notwithstanding the provision of G. L. c. 152, § 66, 67, to the effect that such defense, with exceptions not here material, is denied to an uninsured employer. Bernabeo v. Kaulback, 226 Mass. 128, 115 N. E. 279;McGonigle v. O'Neill, 240 Mass. 262, 263, 133 N. E. 918. It was assumed that the act was so applicable for the purposes of the decision in Ashton v. Boston & Maine Railroad, 222 Mass. 65, 69, 109 N. E. 820, L. R. A. 1916B, 1281;Henshaw v. Boston & Maine Railroad, 222 Mass. 459, 461, 111 N. E. 172; and Lyford v. Boston & Maine Railroad, 227 Mass. 10, 116 N. E. 416; and the contrary assumption was made in Hix v. New York Central & Hudson River Railroad, 230 Mass. 309, 312, 119 N. E. 827. The question was expressly left open in Cox's Case, 225 Mass. 220, 223, 114 N. E. 281, has never been and must now be decided.

At the outset it is to be observed as the basis of this opinion that the act is in no way applicable to the interstate commerce of the defendant or its employees while engaged in that commerce. It was said in Seaboard Air Line v. Horton, 233 U. S. 492, at page 501, 34 S. Ct. 635, 638, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475: ‘It is settled that since Congress, by the act of 1908 [45 USCA §§ 51-59] took possession of the field of the employer's liability to employees in interstate transportation by rail, all state laws upon the subject are superseded. Second Employers' Liability Cases, 223 U. S. 1, 55 [32 S. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44].’ That statement applies also to all state laws thereafter enacted; that are void in their application to the subject of interstate commerce, no matter how phrased.

The relevant provisions of the Workmen's Compensation Act are these sections of G. L. c. 152, section 1: ‘The following words as used in this chapter shall, unless a different meaning is plainly required by the context or specifically prescribed, have the following meanings: * * * (4) ‘Employee’, every person in the service of another under any contract of hire, express or implied, oral or written, except masters of and seamen on vessels engaged in interstate or foreign commerce, and except one whose employment is not in the usual course of the trade, business, profession or occupation of his employer. * * *' Section 66: ‘In an action to recover damages for personal injury sustained by an employee in the course of his employment, or for death resulting from personal injury so sustained, it shall not be a defence-1. That the employee was negligent; 2. That the injury was caused by the negligence of a fellow employee; 3. That the employee had assumed the risk of the injury.’ Section 67: ‘The preceding section shall not apply to actions to recover damages for personal injuries sustained by domestic servants and farm laborers, nor to actions for such injuries received by employees of an insured person.’ It is provided by section 68 that the Employers' Liability Act, both in respect to personal injuries G. L. c. 153, and death, G. L. c. 229, §§ 4, 7, 8, 9, 10, shall not apply to the employees of an insured person. The act as originally enacted in St. 1911, c. 751, part 5, § 2, the Part corresponding to said section 1(4), contained, as one of the limitations on the wide sweep of ‘employee’ as defined, the words, ‘and except one whose employment is but casual.’ Gaynor's Case, 217 Mass. 86, 104 N. E. 339, L. R. A. 1916A, 363. Those words were stricken from the section by St. 1914, c. 708, § 13. That original section did not contain among the limitations upon the definition of ‘employee’ the words, ‘except masters of and seamen on vessels engaged in interstate or foreign commerce’; they were added by St. 1913, c. 568, § 1.

The words of section 1(4) just quoted are of broad import. It is difficult to confine by construction a definition of employee which states explicitly that it includes ‘every person in the service of another under any contract of hire,’ with two specified exceptions. The main purpose of the act reenforces the comprehensiveness of this definition. That purpose was to substitute a method of accident insurance, in place of the rights and liabilities established by the common law as modified by the Employers' Liability Act and other statutes, for substantially all employees save the excepted classes, to the extent that the attainment of that result was within the jurisdiction of the general court. It was a humanitarian measure enacted in response to the conviction that previous remedies had failed to give the extent of relief to employees for personal injuries arising out of their employment demanded by modern conditions. Although the act was optional and not compulsory, its general tenor disclosed a legislative aim to secure its wide adoption and use. The interpretation of the act has been and ought to be, so far as reasonably practicable, to promote the accomplishment of its beneficent design. Express exclusion of two classes of employees from the operation of the act and the enactment of two amendments to the excluding clause are strong indicationsthat all others within the natural purport of its language were to be included. If it had been the intent of the Legislature to exclude railroads engaged in interstate commerce from the operation of the act, it would have been a simple matter to state that intent in unequivocal language. The words, purpose, and legislative history of the act as now phrased require the conclusion that it was intended to be applicable to all classes of injuries therein described within the competency of the legislative department. ‘The statute is as broad as the jurisdiction of the commonwealth.’ Kinney v. Treasurer & Receiver General, 207 Mass. 368, 369, 93 N. E. 586, 587,35 L. R. A. (N. S.) 784, Ann. Cas. 1912A, 902;Young v. Duncan, 218 Mass. 346, 349, 106 N. E. 1;Gillard's Case, 244 Mass. 47, 51, 52, 138 N. E. 384;Toland's Case, 258 Mass. 470, 472, 155 N. E. 602. The decision in Zoulalian v. New England Sanitorium & Benevolent Association, 230 Mass. 102, 119 N. E. 686, L. R. A. 1918F, 185, rests upon the general principle of exoneration of charitable trusts from liability for negligence of their servants and agents. There was no ground for substitution of workmen's compensation liability because there was at common law no liability. Roosen v. Peter Bent Brigham Hospital, 235 Mass. 66, 126 N. E. 392, 14 A. L. R. 563.

The jurisprudence of the state is supreme and exclusive over personal injuries received by railroad employees while engaged in intrastate commerce. Corbett v. Boston & Maine Railroad, 219 Mass. 351, 356, 107 N. E. 60, 12 A. L. R. 683;Barrows v. Farnum's Stage Lines, Inc., 254 Mass. 240, 245, 246, 150 N. E. 206, and cases there reviewed; Commonwealth v. Potter, 254 Mass. 271, 273, 150 N. E. 213. It was said in Wabash Railroad v. Hayes, 234 U. S. 86, 89, 90, 34 S. Ct. 729, 58 L. Ed. 1226: ‘Had the injury occurred in interstate commerce * * * the Federal act undoubtedly would have been controlling, and a recovery could not have been had under the common or statute law of the state; in other words, the Federal act would have been exclusive in its operation, not merely cumulative. [Cases cited.] On the other hand, if the injury occurred outside of interstate commerce, the Federal act was without application, and the law of the state was controlling. Illinois Central Railroad v. Behrens, 233 U. S. 473 [34 S. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163].’ Taylor v. Taylor, 232 U. S. 363, 368, 34 S. Ct. 350, 58 L. Ed. 638;Michigan Central Railroad v. Vreeland, 277 U. S. 59, 66, 67, 33 S. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176;Toledo, St. Louis & Western Railroad v. Slavin, 236 U. S. 454, 35 S. Ct. 306, 59 L. Ed. 671;Raymond v. Chicago, Milwaukee & St. Paul Railway, 243 U. S. 43, 45, 37 S. Ct. 268, 61 L. Ed. 583. There are numerous cases where ...