Bresnahan v. Barre
| Decision Date | 05 June 1934 |
| Citation | 190 N.E. 815,286 Mass. 593 |
| Parties | BRESNAHAN v. BARRE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Hampden County; W. A. Burns, Judge.
Action of tort by Helen Bresnahan, administratrix, against George Barre. Judgment for defendant on directed verdict, and plaintiff brings exceptions.
Exceptions overruled.
D. B. Wallace, of Springfield, for plaintiff.
J. F. Cavanaugh, of Boston, for defendant.
This is an action of tort to recover damages for the death and conscious suffering of the plaintiff's intestate, alleged to have been caused by the negligence of the defendant. The defendant and the intestate were fellow employees of a common employer, the William B. Whiting Coal Company, and the injuries were received on the premises of the latter. The intestate was a general workman about the yard of the employer, taking care of the garage and barn among other duties. The defendant was the driver of a coal truck. On the day of the accident the defendant drove the truck of the employer into a stall in its garage, then went to his own automobile in another stall in the same garage and, as he was backing it out, struck and ran over the intestate causing severe injuries which resulted in his death. The employer was insured under the Workmen's Compensation Act (G. L. [Ter. Ed.] c. 152). At the trial the plaintiff filed a motion to the effect that “ * * * she has entered into an agreement with the Employers' Liability Assurance Corporation, Limited, of London, England, dated March 1, 1930, for the payment of compensation in accordance with the terms of the Workmen's Compensation Act; that she is bound to account for any damages recovered to said Insurance Company, and that the defendant be directed to amend his answer by striking out the third paragraph thereof.' This motion was allowed by the trial judge. * * *' The answer of the defendant as thus amended, so far as now material, contained a general denial and set up contributory negligence of the intestate. The agreement between the insurer of the employer and the plaintiff as administratrix of the intestate and his sole dependent, specified in the plaintiff's motion, was in evidence. It was approved by the Industrial Accident Board and provided for payment of compensation for the death and conscious suffering of the intestate subject to the provisions of the Workmen's Compensation Act. At the close of the evidence the defendant filed a motion for a directed verdict in his favor, on the ground that as matter of law neither the plaintiff nor the insurer has a right of action against the defendant because of the agreement between the plaintiff and the insurer of the employer of the intestate under the Workmen's Compensation Act for payment of compensation for the injuries and death of the intestate, coupled with the facts that the defendant and the intestate were fellow employees of a common employer and that the injuries were received on the premises of the latter. This motion was granted subject to exception by the plaintiff.
The intestate and the defendant at the time of the injury were engaged in the performance of the duties of their employment on the premises of the employer. There was no evidence that the work of the defendant for the day had been completed. He was on the part of his master's premises where his employment carried him. He was leaving the garage where he had placed his employer's truck. There was uncontradicted testimony to the effect that for about eight years every night the defendant had put the truck into the garage of his employer and had then backed his own automobile out of another stall in the same garage. Manifestly the defendant was where he had a right to be in the course os his employment. This is so, even if it be assumed that after he had left the premises of his employer his work for the day would have been at an end. White v. E. T. Slattery, 236 Mass. 28, 127 N. E. 597;Latter's Case, 238 Mass. 326, 130 N. E. 637;Haskins's Case, 261 Mass. 436, 438, 158 N. E. 845. The case in this respect is distinguishable from Savage's Case, 257 Mass. 30, 153 N. E. 257.
The rights of the parties to the present action must be determined in the light of the provisions of the Workmen's Compensation Act. The common employer was insured under that act and the plaintiff has received the benefits afforded by that act. The plantiff brings this action under G. L. (Ter. Ed.) c. 152, § 15. Its relevant words are these: ...
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...the employees of the general contractor are to receive no greater benefit than the employees of the subcontractor. In Bresnahan v. Barre, 286 Mass. 593, 190 N.E. 815, 817, the Massachusetts court held that an action for the death of an employee injured by a fellow servant on the project may......
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