Clark v. M.W. Leahy Co.
| Decision Date | 28 June 1938 |
| Parties | GEORGE H. B. CLARK v. M. W. LEAHY CO., INC. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
April 7, 1938.
Present: LUMMUS QUA, DOLAN, & COX, JJ.
Workmen's Compensation Act, Liability of one person engaged in common employment for injury to another, Action by insurer against negligent third person, Employee of independent contractor To whom act applies. Actionable Tort.
The provisions of Section 15 of the workmen's compensation act, permitting the insurer of an employer, after paying compensation to an employee for a compensable injury, to enforce the liability for such injury to the employee of a "person other than the insured" did not authorize an action by the insurer of a general contractor, after such payment, against a subcontractor on the same job, negligence of whose employee had caused the injury to the employee of the general contractor, if the work of the subcontractor was part of a "common employment" covered by the general contractor's insurance within Section 18, although the subcontractor was not insured under the act.
Findings were warranted that, within the meaning of Section 18 of the workmen's compensation act, the work of a subcontractor under a contract with a general contractor installing a refrigerating system, in transporting iron pipes from a railroad station and in delivering them to a plant where the refrigerating system was being installed, was "part of the work comprised in" the general contract, and "part of or process in, the trade or business carried on by" the general contractor, and not
"merely ancillary and incidental" thereto; and that the place of delivery of the pipes was "under the control or management" of the general contractor, as well as "premises on which" the subcontractor had
"undertaken to execute" its work.
TORT. Writ in the First District Court of Northern Middlesex dated August 19, 1936.
The action was heard by Lovering, J., who made finding of fact and found for the defendant. Upon report established by the Appellate Division for the Northern District on a petition, judgment was ordered entered for the plaintiff in the sum of $2,224.24, agreed by the parties to be the plaintiff's damages if he was entitled to recover. The defendant appealed.
F. J. Cooke, for the defendant, submitted a brief. E. Z. Dymsza, for the plaintiff.
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, Incorporated. The Automatic Refrigerating Company contracted with the defendant M. W Leahy Co., 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, Section 15, against the defendant subcontractor, 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, Section 24. Where work done by contractors, subcontractors 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 subcontractor as though such contractor or subcontractor were the "insured person." G.L. (Ter. Ed.) c. 152, Section 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. 299 Mass. 260 , 266. Pimental v. John E. Cox Co. Inc. 299 Mass. 579 . But the facts may bring him within the section. Cozzo v. Atlantic Refining Co. 299 Mass. 260 . Ordinarily in such a case the general contractor is the "insured person" within that section. Dresser v. New Hampshire Structural Steel Co. 296 Mass. 97 . Furthermore, when a compensable injury "was caused under circumstances creating a legal liability in some person other than the insured to pay damages," the employee is put to his election, either to claim damages against that other person, or to claim compensation from the insurer. If he elects the latter, the insurer paying him may "enforce
. . . the liability of such other person." G.L. (Ter. Ed.) c. 152, Section 15. Tocci's Case, 269 Mass. 221 . McDonald v. Employers' Liability Assurance Corp. Ltd. 288 Mass. 170 .
These three sections in combination have resulted in the establishment of a rule, governing common law actions for personal injuries suffered by employees of the contractor and of subcontractors where the work is done under a general contractor who is an "insured person," that might not be apparent from a mere reading of the statute. The insurance of the general contractor or "common employer" (Bresnahan v. Barre, 286 Mass. 593 , 597) throws its shadow over the whole work. In that shadow (unless there has been a written notice under Section 24 reserving common law rights) a cause of action for negligence causing a compensable personal injury cannot grow. Bresnahan v. Barre, 286 Mass. 593 , 597. Since the insurance of the "common employer" covers and protects all employees engaged in the "common employment" (Bresnahan v. Barre, 286 Mass. 593 , 597), one engaged in that common employment as contractor, subcontractor or employee cannot be a "person other than the insured" within Section 15, and the injured employee has no option to sue him at common law. An insurer, whether of the common employer or of a subcontractor, paying compensation to an employee, cannot recover over under Section 15 against a negligent contractor, subcontractor or employee engaged in the "common employment," for the insurer succeeds only to the rights of the employee receiving compensation. Bindbeutel v. L. D. Willcutt & Sons Co. 244 Mass. 195 , 108. See also Fidelity & Casualty Co. v. Huse & Carleton, Inc. 272 Mass. 448 . In the application of this rule, it is immaterial whether the subcontractors are insured or not. Bindbeutel v. L. D. Willcutt & Sons Co. 244 Mass. 195 . Pimental v. John E. Cox Co. Inc. 299 Mass. 579 , 583. The essential thing is the existence of a "common employer" who is an "insured person" under Section 18 (Pimental v. John E. Cox Co. Inc. 299 Mass. 579), and who is having work done by contract in or about premises specified in Section 18 (Doherty's Case, 294 Mass. 363), which work is part of or process in his trade or business. Corbett's Case, 270 Mass. 162 .
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