Clark v. M.W. Leahy Co.

• Citation: 16 N.E.2d 57,300 Mass. 565
• Parties: CLARK v. M. W. LEAHY CO., Inc.
• Decision Date: 29 June 1938
• Court: United States State Supreme Judicial Court of Massachusetts

300 Mass. 565
16 N.E.2d 57

CLARK
v.
M. W. LEAHY CO., Inc.

Supreme Judicial Court of Massachusetts, Middlesex.

June 29, 1938.

Action by George H. B. Clark against the M. W. Leahy Company, Inc., in tort in behalf of the compensation insurer of plaintiff's employer, to recover for defendant's negligence. A finding for defendant was reversed and vacated by the Appellate Division upon a report, and judgment was entered for plaintiff in the sum of $2,224.24, agreed by the parties to be the amount of plaintiff's damages it he was entitled to recover, and defendant appeals.

Order of Appellate Division reversed and judgment entered for defendant on the finding.

[16 N.E.2d 57]

Appeal from Appellate Division of District Court of Northern Middlesex, Northern District.

[16 N.E.2d 58]

Trayers & Oberhauser, of Boston ( F. J. Cooke, of Boston, of counsel), for appellant.

E. Z. Dymsza, of Boston, for appellee.

LUMMUS, Justice.

The plaintiff was an employee of the Automatic Refrigerating Company, which was engaged as general contractor in installing a refrigerating system for the Nashoba Apple Packing Association. The Automatic Refrigerating Company contracted with the defendant M. W. Leahy Company, Inc. to pay the latter a stated price by the ton for transporting iron pipes from the railroad to the plant of the Association, where the work was being done. While the pipes were being delivered by the defendant, one of its employees negligently pushed a pipe through a window and injured the plaintiff, who was at his work. The insurer of the Automatic Refrigerating Company paid compensation to the plaintiff, and brings this action in his name under G.L.(Ter.Ed.) c. 152, § 15, against the defendant sub-contractor, which was not insured under the workmen's compensation act.

The judge on these facts found for the defendant. The Appellate Division vacated the finding and ordered judgment for the plaintiff. The defendant appealed.

Unless an employee of ‘an insured person’ under the workmen's compensation act has reserved his common law right of action by written notice at the time of his contract of hire, he ‘shall be held to have waived his right of action at common law * * * in respect to an injury * * * to recover damages for personal injuries.’ G.L.(Ter.Ed.) c. 152, § 24. Where work done by contractors, sub-contractors and their employees is done by contract under ‘an insured person’ as a part of or process in, the trade or business carried on by the insured,'-not ‘merely ancillary and incidental’ thereto-and in or about premises ‘under the control or management of the insured’ or ‘on which the contractor has undertaken to execute the work for the insured,’ then the insurer of such ‘insured person’ must make compensation for a compensable injury to an employee of any contractor or sub-contractor as though such contractor or subcontractor were the ‘insured person.’ G.L.(Ter.Ed.) c. 152, § 18. The owner of real estate having construction work done by contract is usually not such an ‘insured person,’ for usually the work done is only ‘ancillary and incidental’ to his trade or business. Cozzo v. Atlantic Refining Co., Mass., 12 N.E.2d 744;Pimental v. John E. Cox Co., Inc., Mass., 13 N.E.2d 441. But the facts may bring him within the section. Cozzo v. Atlantic Refining Co., Mass., 12 N.E.2d 744. Ordinarily in...