Carr v. Arthur D. Little, Inc.

• Decision Date: 08 February 1965
• Citation: 348 Mass. 469,204 N.E.2d 466
• Parties: Arline M. CARR, Administratrix, v. ARTHUR D. LITTLE, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 466

204 N.E.2d 466

348 Mass. 469

Arline M. CARR, Administratrix, v. ARTHUR D. LITTLE, INC.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 6, 1964.

Decided Feb. 8, 1965.

Philander S. Ratzkoff, Boston, for defendant.

Joseph P. Rooney, Boston (Stephen A. Moore, Boston, with him), for plaintiff

Before WILKINS, C. J., and SPALDING, WHITTEMORE, KIRK, and REARDON, JJ.

KIRK, Justice.

This is an action at law under G.L. c. 152, § 15, for the death (count 1) and the conscious suffering (count 2) of Leo A. Carr, a shop foreman employed by Tech Welding Corporation (Tech). The jury returned a verdict for the plaintiff on each count. The defendant, Arthur D. Little, Inc. (Little), had seasonably filed motions for a directed verdict on each count. Little's exceptions to the denial of these motions bring the case to us. Little contends, as to both counts, that, with Tech, it was a common employer of Carr and therefore under our construction of G.L. c. 152, §§ 15, 18, it is not liable in this action at law, and that, as to count 2, there was no evidence of conscious suffering to take the case to the jury.

Certain facts are stipulated in the bill of exceptions: Carr did not reserve his common law rights against Tech or Little. On August 14, 1959, when Carr was injured, both Tech and Little were insured in compliance with the Workmen's Compensation Act, G.L. c. 152. The action is brought by Tech's insurer which has paid compensation and medical benefits to or for the benefit of Carr and his surviving beneficiaries.

In considering the propriety of the denial of the motions for directed verdicts, we summarize and view the evidence in the light most favorable to the plaintiff. Duff v. Webster, 315 Mass. 102, 103, 51 N.E.2d 957. Tindall v. Denholm & McKay Co., 347 Mass. 100, 101, 196 N.E.2d 631. Among its several enterprises, Little is engaged in many phases of industrial engineering, including physics and chemical engineering. Tech's business is the fabrication of metals. It fills special orders for customers, and it manufactures for sale through jobbers stock truck tank bodies and underground storage tanks for fuel and gasoline. Little undertook to furnish the Pesco division of Borg-Warner (Pesco) a vessel for the purpose of testing pumps under exposure to liquid oxygen.

The design, fabrication and tests for final performance of the project were under the direction of one Hunsaker, an employee of Little. Pesco's contract with Little required that Little conduct the final performance tests of the project. Tech agreed with Little to manufacture, as part of the project, a tank which in concept was similar to a giant thermos bottle lying horizontally; on outer shell of carbon steel seventeen feet long and five and one-half feet in diameter and an inner shell of stainless steel sixteen feet long and four and one-half feet in diameter. The inner tank was supported on blocks to keep it from touching the outer shell. At the middle of the bottom of the tank was a hatch or bubble, which included a 'pant leg' or tube affording access to the inner shell for the insertion of objects which were to be exposed to the liquid oxygen. ¹ The surface of the part of the 'pant leg' which reached the inner shell was called a 'pump blank-off' or plate. Its inner surface was exposed to the atmosphere within the inner shell. The plate was ordered by Little from another manufacturer. It was made of carbon steel. If carbon steel is exposed to low temperatures it becomes brittle and can break. Except for the plate on the 'pant leg,' the whole inner shell was made of stainless steel which, when exposed to very low temperatures, has a much higher resistance to pressure than carbon steel. Persons skilled in the trade can distinguish by observation between carbon steel and stainless steel.

In accordance with the custom in the industry, Tech's agreement with Little was oral, subsequently confirmed by written orders (a purchase order and two change orders). Tech's job was to fabricate, assemble and deliver the tank. Tech agreed to perform and was equipped to perform certain tests, such as hydrostatic tests, to detect leaks in the tank and to correct them if caused by welding work or materials made by it. Was not equipped to do the finer work of detecting minute leaks, such as by the use of the mass spectrometer. Tech was not responsible for repairs made necessary by design failure. It did not agree to make and was not equipped to make final performance tests, such as the 'cold test' which would involve the introduction of liquid nitrogen into the inner shell. In order that Little could expedite its overall job for Pesco, Tech agreed, at Little's request, to let Little conduct the cold test at Tech's plant, provided the test did not interfere with Tech's regular operations and preferably if the test were done after hours. On August 12, when the first cold test, under the supervision of Hunsaker, was under way, a leak in the gasket was discovered. Carr was consulted. The next day a large gasket was put on. No testing was involved in the latter job. 'This was strictly a job of disassembly and assembly.' Tech then had completed what was called for by the orders from Little.

No warning was given to Tech or to Carr by Little about the cold test or as to what steps were involved in it. Little ordered the liquid nitrogen. Hunsaker was conducting the cold test when Carr was injured. As shop foreman, Carr had overall supervision of the operations in the shop and of Tech's shop employees. His duties with respect to the work on the tank were only incidental to his general duties as shop foreman. Tech had as many as fifteen or twenty other projects in process on the day of the accident and Carr was supervising them all. He was standing, bent over, looking at a gauge on the tank when the plate on the 'pant leg' fragmented. The carbon steel plate was unsuitable for the purpose and its use by Little was the cause of the accident.

The purchase order and the change orders were in evidence. Neither the purchase order nor the change order issued before the accident mentioned the cold test. A change order issued after the accident authorized payment for all the work done prior to the accident. It did not refer to the cold test or give any particulars as to what the authorized work was. Tech's president never agreed to assist Little 'in the form of employees for the cold test' nor did he ever say that Tech would 'undertake any responsibility in connection with the cold test.'

It is not disputed that Little was negligent and that Carr was in the exercise of due care. Since the action is brought by Tech's insurer under G.L. c. 152, § 15, we apply the rule which has evolved from our reading together of G.L. c. 152, § 15 and § 18. If under G.L. c. 152, § 18, Little was a common employer of Carr, it is not a 'person other than the insured' and Tech's insurer may not, under G.L. c. 152, § 15, proceed at law against Little. Bindbeutel v. L. D. Willcutt & Sons Co., 244 Mass. 195, 197-198, 138 N.E. 239. Clark v. M. W. Leahy Co. Inc., 300 Mass. 565, 567-568, 16 N.E.2d 57. McPadden v. W. J. Halloran Co., 338 Mass. 189, 190, 154 N.E.2d 582.

We think that the evidence presented a question of fact as to the existence of common employment (Caton v. Winslow Bros. & Smith Co., 309 Mass. 150, 154, 34 N.E.2d 638; Harrington v. H. F. Davis Tractor Co. Inc., 342 Mass. 675, 679, 175 N.E.2d 241) and does not require, as the defendant contends, a ruling that, as matter of law, there was common employment. Carlson v. Dowgielewicz, 304 Mass. 560, 563, 24 N.E.2d 538. McPadden v. W. J. Halloran Co., 338 Mass. 189, 192, 154 N.E.2d 582. Tindall v. Denholm & McKay Co., 347 Mass. 100, 196 N.E.2d 631.

The existence of a contract, written or oral, between Tech and Little is an essential element of Little's affirmative defence of common employment. Harrington v. H. F. Davis Tractor Co. Inc., 342 Mass. 675, 677, 175 N.E.2d 241. Admittedly, Tech had contracted with Little to fabricate and assemble the tank. The evidence, however, did not require a finding that participation in the cold test was part of Tech's contract with Little or was the subject of a separate contract between them. The issue was, therefore, properly submitted to the jury, and their verdicts, unless otherwise untenable, must stand. Dubois v. Soule Mill, 323 Mass. 472, 82 N.E.2d 886.

We now consider the defendant's exception to the denial of its motion for a directed verdict on the count for conscious suffering. Here also we evaluate the evidence in its aspect most favorable to the plaintiff. Duff v. Webster, 315 Mass. 102, 103, 51 N.E.2d 957.

Carr was found, following the accident, lying on the floor bleeding and with an injury to the right side of his head. He was put on a stretcher. He was having difficulty breathing. He moaned and groaned every half minute or so. During the ambulance trip to the hospital, which took approximately ten minutes, he 'tighten[ed] up and relax[ed]. His hands were grasping, opening and closing, clenching.' The moaning and groaning continued throughout the trip and after arrival at the hospital. A tracheotomy was performed to ease his breathing. When the tube in his throat became clogged, as it frequently did, the gasping of Carr increased; when it was cleaned his breathing became easier, he did not struggle as much and he seemed more relaxed.

On one occasion, when the plaintiff, a registered nurse, called her husband's name several times, he moved his head very slightly toward her and moved his hand with his fingers toward her. On three occasions on August 15, the plaintiff ran her finger down the sole of Carr's foot (a form of plantar stimulation) and the toes moved. There was moaning and groaning at times. The next day (August 16) his breathing became slower and quieter, then shallower. Carr died that afternoon.

A qualified neurologist, called by the defendant, was the...