Bindbeutel v. L. D. Willcutt and Sons Co.

• Decision Date: 01 March 1923
• Citation: 244 Mass. 195
• Parties: WILLIAM C.BINDBEUTEL v. L. D. WILLCUTT AND SONS COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

244 Mass. 195

WILLIAM C.BINDBEUTEL v. L. D. WILLCUTT AND SONS COMPANY.

Supreme Judicial Court of Massachusetts, Norfolk.

March 1, 1923

December 11, 1922.

Present: RUGG, C.

J., DE COURCY CROSBY, PIERCE, & CARROLL, JJ. Suffolk. January 10, 1923. -- March 1, 1923. Present: RUGG, C.J., BRALEY, DE COURCY CROSBY, & CARROLL, JJ.

Workmen's Compensation Act.

An action of tort for personal injuries caused to an employee of a subcontractor in the construction of a building by negligence of the general contractor or of his servants or agents cannot be maintained under G.L.c. 152, Section 15, against such general contractor by an insurer of the subcontractor under the provisions of the workmen's compensation act after the employee has received compensation under the act from the insurer of the subcontractor, where it appears that both the general contractor and the subcontractor have accepted the provisions of the act.

TWO ACTIONS OF TORT, each against a general building contractor for personal injuries suffered by an employee of a subcontractor by reason of negligence of the defendant or of his servants or agents. Writs dated, respectively, June 25, 1920, and April 21, 1921.

In the first action, the defendant demurred to the declaration. The demurrer was heard by Keating, J., who sustained it, and being of the opinion that the correctness of this ruling should be determined by this court before further proceedings were had in the Superior Court, the judge reported the action to this court for such determination, judgment to be entered for the defendant if the ruling was correct; otherwise, the action to stand for trial.

In the Superior Court the second action was heard by McLaughlin, J., without a jury, upon an agreed statement of facts including an agreement that, if the plaintiff was entitled to recover judgment should be entered in his favor in the sum of $37.86. The plaintiff moved that a verdict be ordered in his favor. The motion was denied. The judge found for the defendant; and the plaiDtiff alleged exceptions.

L. C. Doyle, for the plaintiff in the first case.

J.

T. Connolly, for the plaintiff in the second case, submitted a brief. T. W. Proctor, for the defendant in the first case.

J. E. Farley, for the defendant in the second case.

CARROLL, J. In the first action the Aefendant was a general contractor in the erection of a building. The plaintiff was in the employ of Buerkel and Company, a subcontractor doing the heating and plumbing for the building. Both the defendant and Buerkel and Company had accepted the provisions of the workmen's compensation act. The plaintiff was injured by reason of the negligence of the defendant or its employees. He was paid compensation by the Travelers Insurance Company, his employer's insurer. The action of tort is under St. 1911 c. 751, Part III, Section 15 (now G.L.c. 152, Section 15), and is brought for the benefit of the plaintiff and the Travelers Insurance Company. In the Superior Court the defendant's demurrer was sustained and the case reported to this court.

In the second action the defendant was the general contractor. The plaintiff's employer was a subcontractor engaged in doing a part of the work comprised in the contract of the general contractor. The defendant and the plaintiff's employer were insured under the workmen's compensation act. The plaintiff was injured by the negligence of the defendant's servants. He was paid compensation by the Ocean Accident and Guarantee Corporation, Limited, the employers' insurer, and this action of tort is brought by the plaintiff for his benefit and the benefit of the Ocean Accident and Guarantee Corporation, Limited, under St. 1911, c. 751, Part III, Section 15. The plaintiff moved for a di rected verdict in his favor; the motion was denied. Judgment was entered for the defendant and the plaintiff excepted.

The same issue is presented in each case. It is, whether an insurance company which has paid compensation to an injured employee of a subcontractor whom it has insured under the workmen's compensation act, can maintain an action as provided by St 1911, c. 751, Part III, Section 15 (now G.L.c. 152, Section 15), against the general contractor on the job, when the general contractor has also accepted the provisions of the act. This section provides, when an injury happens to an employee for which compensation is payable under the statute, "under circumstances creating a legal liability in some person other than the insured to pay damages," the employee has the option to proceed against that person or against the insurer for compensation under the workmen's compensation act, "but not against both; and if compensation be paid under this chapter, the insurer may enforce, in the name of the employee or in its own name and for its own benefit, the liability of such other person; and in case the insurer recovers a sum greater than that paid by it to the employee, four fifths of the excess shall be paid to the employee." By St. 1911, c. 751, Part III, Section 17 (now G.L.c. 152, Section 18), if a subscriber enters into a contract with an independent contractor to do all or any part of the subscriber's work, and the insurer would be liable to pay compensation to those immediately employed by the subscribers if such work were done by them, it shall pay to the employees of the subcontractors the compensation payable, to the same extent as if the subcontractors were insured under the act. The insurer shall be entitled to recover indemnity from the person...