Bagnel v. Springfield Sand & Tile Co., 3968.

• Decision Date: 09 October 1944
• Docket Number: No. 3968.,3968.
• Citation: 144 F.2d 65
• Parties: BAGNEL v. SPRINGFIELD SAND & TILE CO. et al.
• Court: U.S. Court of Appeals — First Circuit

144 F.2d 65 (1944)

BAGNEL v. SPRINGFIELD SAND & TILE CO. et al.

No. 3968.

Circuit Court of Appeals, First Circuit.

July 6, 1944.

Writ of Certiorari Denied October 9, 1944.

Andrew B. Goodspeed, Willard, Allen & Mulkern, and Ralph H. Willard, all of Boston, Mass., for appellant.

Thomas H. Mahony, of Boston, Mass., and John I. Robinson, of Springfield, Mass., for appellees.

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

Writ of Certiorari Denied October 9, 1944. See 65 S.Ct. 72.

MAGRUDER, Circuit Judge.

This consolidated appeal brings up for review four judgments entered in the court below, all of them adverse to appellant Bagnel on a common question of law. The principal issue which has been argued is whether the provisions of the Workmen's Compensation Law of New York, Consol. Laws, c. 67, or the Workmen's Compensation Act of Massachusetts, G.L.(Ter.Ed.) c. 152, § 1 et seq., should be applied in a case where appellant, a resident of New York, working under a contract of employment made in that state, was, while on temporary assignment to work in Massachusetts, injured there in the course of his employment.

In 1940 Jacobson & Co., Inc., New York City, New York, contracted with the United Aircraft Corporation to furnish and install soundproofing in a plant at East Hartford, Connecticut. The acoustical stone pipe to be used on the job was manufactured at the plant of the Springfield Sand & Tile Company, Inc., Springfield, Massachusetts, a subcontractor. The latter corporation, in turn, engaged the Construction Service Corporation, also of Springfield, Massachusetts, to furnish the concrete mixers, a crane, and the operators of both mixers and crane, to be used in the manufacture of the acoustical stone pipe. Under arrangement with the subcontractors, Jacobson & Co., Inc., participated in the manufacture of the pipe on the premises of the Springfield Sand & Tile Company by supervising the work and by furnishing some of the labor.

Bagnel had been hired by Jacobson & Co., Inc., in New York some four years prior to the accident and had worked under such employment in New York. On January 6, 1941, Bagnel was sent by his employer to the Springfield plant of the Springfield Sand & Tile Company, where he remained until he was injured on January 18, 1941, while at work for Jacobson on the manufacture of the pipe.

It is stipulated "that said Jacobson & Co., Inc., by a policy of insurance under the Workmen's Compensation Law of the State of New York and by endorsement thereto or thereon also had coverage under the Workmen's Compensation Act of the Commonwealth of Massachusetts applicable to work upon which said Jacobson & Co., Inc., was engaged at the time and place of said injury to Bagnel; that Bagnel accepted the benefits of the Workmen's Compensation Law of the State of New York."

On January 16, 1942, Bagnel filed in the District Court of the United States for the District of Massachusetts two complaints in tort for negligence, one against the subcontractor Springfield Sand & Tile Company and the other against the subcontractor Construction Service Corporation. Jurisdiction was based upon diversity of citizenship. In each complaint it was alleged that while the plaintiff was a business invitee on the premises of the Springfield Sand & Tile Company, the defendant, its agents and servants then and there negligently maintained a hoisting crane known by them to be defective, and operated the said crane so negligently that its hoisting cable broke, precipitating its load upon the plaintiff to his grievous bodily injury. The Springfield Sand & Tile Company for answer set up several defenses. Its fifth defense was as follows:

"In further answer to the plaintiff's complaint the defendant says that at the time of the alleged accident the plaintiff was an employee of Jacobson & Sons Company, which was insured under the Massachusetts Workmen's Compensation Act; that the plaintiff had not reserved his common law rights in accordance with G.L.(Ter.Ed.) chapter 152, section 24; that the plaintiff's alleged injury arose out of and in the course of his employment in Massachusetts upon premises on which his employer was engaged; that the defendant was engaged in work which was a part of and process in the trade and business of Jacobson & Sons Company within the meaning of G.L. (Ter.Ed.) chapter 152, section 18; that therefore the defendant is not some person other than the insured within the meaning of G.L.(Ter.Ed.) chapter 152, section 15, and therefore the plaintiff cannot maintain this action."

This identical defense was set up in the answer of the defendant Construction Service Corporation as its fourth defense to the complaint against it.

Subsequently the two defendants in these pending tort actions filed separate petitions for declaratory judgment (48 Stat. 955, 28 U.S.C.A. § 400), raising the same question as to the application of the Massachusetts Workmen's Compensation Act, and each praying a declaration that Bagnel was not entitled to recover in his action of tort.

In the tort action of Bagnel against the Springfield Sand & Tile Company the District Court ordered a severance as to the fifth defense raised in the answer. After hearing on this defense the District Court on June 16, 1943, entered judgment for the defendant. Similarly in the tort action of Bagnel against the Construction Service Corporation the District Court ordered a severance as to the fourth defense, and after hearing thereon, entered judgment for the defendant on June 16, 1943. In the two declaratory judgment suits the court entered decrees on July 19, 1943, adjudging that the policy of insurance issued to Jacobson & Co., Inc., under the Massachusetts Workmen's Compensation Act covered the employment of Bagnel by Jacobson & Co., Inc., at the time of Bagnel's injury, and that Bagnel had and has no cause of action against either of the two subcontractors for negligence at common law, and decreeing that Bagnel shall be permanently restrained from prosecuting the said tort actions.

Notices of appeal were filed by Bagnel in each of the four cases aforesaid and, upon motion, we granted him leave to consolidate the appeals and docket them as a single case.

Problems of more than ordinary complexity in the field of conflict of laws have arisen in the application of various state workmen's compensation acts to industrial accidents with which two or more states may have some legitimate concern. See Dwan, Workmen's Compensation and the Conflict of Laws (1927) 11 Minn.L.Rev. 329; Dwan, Workmen's Compensation and the Conflict of Laws — The Restatement and Other Recent Developments (1935) 20 Minn.L.Rev. 19; Dunlap, Conflict of Laws and Workmen's Compensation (1935) 23 Calif.L.Rev. 381; Note, Conflict of Laws Provisions in Workmen's Compensation Acts (1943) 57 Harv.L.Rev. 242. Constitutional questions under the full faith and credit clause have injected added complications. Bradford Electric Light Co. v. Clapper, 1932, 286 U.S. 145, 52 S.Ct. 571, 76 L.Ed. 1026, 82 A.L.R. 696; Alaska Packers Ass'n v. Industrial Accident Commission of California, 1935, 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044; Pacific Employers Ins. Co. v. Industrial Accident Commission, 1939, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940; Magnolia Petroleum Co. v. Hunt, 1943, 320 U.S. 430, 64 S.Ct. 208. Fortunately, we are not obliged in this case to deal with the general subject matter comprehensively and at large. On the particular facts of the case at bar the problem can be rather narrowly confined.

Bagnel is not here seeking compensation from his employer under the Massachusetts Workmen's Compensation Act. He is not suing his own employer in tort under the common law. He is suing the two subcontractors for negligence. It is not claimed that there is anything in the provisions of the New York Workmen's Compensation Law which would take away whatever common law rights of action he might otherwise have against the subcontractors.¹ Bradford Electric Light Co. v. Clapper, 1932, 286 U.S. 145, 52 S.Ct. 571, 76 L.Ed. 1026, 82 A.L.R. 696, can therefore be no obstacle to recovery, even disregarding the fact that this case has apparently been much limited, if not substantially overruled, ruled, by Pacific Employers Insurance Co. v. Industrial Accident Commission, 1939, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940. Since the injury occurred in Massachusetts, any rights of action in tort which Bagnel may have against the subcontractors must necessarily have been created by Massachusetts law. And it is certainly within the competence of the Massachusetts legislature to take away such common law rights of action. Hence in the present litigation, where the jurisdiction of the federal court in Massachusetts is based upon diversity of citizenship, the court is obliged to apply the Massachusetts law, as expounded by the state courts of Massachusetts so far as any guides may be found in their decisions. Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487; Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477.

Relevant provisions of the Massachusetts Workmen's Compensation Act, as it read at the date of the injury to Bagnel, are set out in the footnote.²

That act was of the so-called "elective" type, both as to employer and employee.³ If the employer failed to take out insurance under the act he was deprived of his common law defenses. §§ 66,67. The employee of an insured employer might retain his common law rights of action by giving notice to that effect to his employer, as provided in § 24. If he gave his employer such notice, he could not claim the statutory compensation. § 26. The act had a somewhat unusual provision to the effect that an employee of an insured person who had not retained his common law rights of action against such employer and who thus was entitled to claim compensation under the act, was not only...