Caira v. Caira

• Decision Date: 25 January 1937
• Citation: 6 N.E.2d 431,296 Mass. 448
• Parties: ENRICO CAIRA v. ERNEST CAIRA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

296 Mass. 448

6 N.E.2d 431

ENRICO CAIRA v. ERNEST CAIRA.

Supreme Judicial Court of Massachusetts, Middlesex.

January 25, 1937

January 4, 5, 1937.

Present: RUGG, C.

J., PIERCE DONAHUE, LUMMUS, & QUA, JJ.

Workmen's Compensation Act, Liability of one person engaged in common employment for injury to another.

Section 15 of the workmen's compensation act does not permit an employee of one insured under the act, if he has not reserved his common law rights under Section 24 and notwithstanding he has not elected to proceed against the insurer for compensation under the act, to maintain an action against a fellow employee for injuries caused by the defendant's negligence and compensable under the act.

TORT. Writ in the District Court of Newton dated December 27, 1935. On removal to the Superior Court, a verdict for the defendant was ordered by Donahue, J., upon the report of an auditor without other evidence. The plaintiff alleged exceptions.

S. Mondlick, (I.

Woronoff with him,) for the plaintiff.

D. H. Fulton, for the defendant.

LUMMUS, J. The plaintiff and the defendant were fellow servants in the employ of a contractor insured under the workmen's compensation act, G.L. (Ter. Ed.) c. 152. The plaintiff was injured through the negligence of the defendant while the latter, in the course of his employment by the common employer, was carrying the plaintiff in a motor vehicle at the end of a day's work. The finding of the auditor which, not being contradicted, is conclusive (Ballou v Fitzpatrick, 283 Mass. 336 , 338), is "that while the plaintiff was not required to report at his employer's place of business after work each day that under his contract of employment he was entitled to be furnished by his employer with transportation to the employer's yard on conclusion of his work and that the employer was fulfilling this obligation when the accident happened."

Upon this finding the injury was compensable under the workmen's compensation act. Donovan's Case, 217 Mass. 76 . Higgins's Case, 284 Mass. 345, 348. See also Bresnahan v. Barre, 286 Mass. 593 , 595. Upon this finding, also, it may be assumed that at common law the plaintiff could have recovered against the defendant upon proof of ordinary negligence. Bresnahan v. Barre, 286 Mass. 593 , 595, 596. See also Alderman v. Noble, ante, 30. We assume in favor of the plaintiff, without deciding, that a conclusive election to proceed against the insurer for compensation under the workmen's compensation act has not been shown. See G.L. (Ter. Ed.) c. 152, Section 15; McDonald v. Employers' Liability Assurance Corp. Ltd. 288 Mass. 170 , 173. The plaintiff does not claim to have reserved his common law rights of action under G.L. (Ter. Ed.) c. 152, Section 24.

The question for decision is whether the fact that the injury was compensable under the workmen's compensation act deprives the plaintiff, without any election on his part, of a right of action against a fellow employee who was the actual wrongdoer. The answer depends upon the construction of G.L. (Ter. Ed.) c. 152, Section 15.

In Bresnahan v Barre, 286 Mass. 593 , the plaintiff's intestate was mortally injured by the negligence of a fellow employee in the service of a common employer insured under the workmen's compensation act. The insurer paid compensation, and brought action against the fellow employee as a "person other than the insured" under Section 15. It was held that a verdict for the defendant was properly directed. The court discussed the...