Commissioner of Ins. v. Broad St. Mut. Cas. Ins. Co.

• Decision Date: 28 October 1942
• Parties: COMMISSIONER OF INSURANCE v. BROAD STREET MUTUAL CASUALTY INSURANCE COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

312 Mass. 261

44 N.E.2d 683

COMMISSIONER OF INSURANCE v. BROAD STREET MUTUAL CASUALTY INSURANCE COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

October 28, 1942

January 8, 1941.

Present: FIELD, C.

J., DONAHUE LUMMUS, & COX, JJ.

Unemployment Compensation. Receiver. Personal Property, Ownership. Words "Acquire."

A receiver of an insurance company was not so far identical with the company as to become subject to the unemployment compensation act merely because the company had been subject to it; nor was he one who had "acquired the organization, trade or business, or substantially all the assets thereof, of" the company within Section 1A

(4) of G.L.c. 151A as appearing in St. 1937, c. 421, Section 1, so as thereby to become subjected to the act. The word "acquired" in Section 1A (4) of G.L.c. 151A, as appearing in St.

1937, c. 421, Section 1, imports ownership, and is not satisfied by the mere custody or control which a receiver has.

BILL IN EQUITY, filed in the Supreme Judicial Court for the county of Suffolk on December 28, 1938, for the appointment of a receiver.

The petition described in the opinion was heard by Ronan, J. J. J. Leonard, Special Assistant Attorney General, for the director of the division of unemployment compensation.

M. K. Greenberg, for the receiver.

LUMMUS, J. The unemployment compensation commission, the predecessor of the present petitioner the director of the division of unemployment compensation (St. 1935, c. 479, Section 4; St 1939, c. 20, Section 1), brought this petition on September 22, 1939, for an order directing the receiver of Broad Street Mutual Casualty Insurance Company, appointed on December 28, 1938, to contribute to the Commonwealth under the unemployment compensation act the sum of $126.55 on account of wages paid to his employees during the first quarter of the year 1939. The single justice, on October 6, 1939, found that "the receiver is not a person subject to the tax . . . because I do not find that the liquidation of the company by him is a continuation of the business formerly conducted by the company; because he has not acquired the legal assets of the company but has only the possession and custody of the same; and because he will not employ during the current year for a period of twenty weeks or more four or more employees in the administration of the receivership." Accordingly, a final decree was entered dismissing the petition. After an abortive attempt to bring the case here by report (Commissioner of Insurance v. Broad Street Mutual Casualty Ins. Co. 306 Mass. 362), the full court granted leave to claim the appeal that brings the case here. G. L. (Ter. Ed.) c. 214, Section 28.

The receiver does not contend that the company was not one subject to the act. Section 1A of c. 151A inserted in the General Laws by St 1937, c. 421, Section 1, and amended by St. 1938, c. 469, Sections 3, 4. And the petitioner maintains that the receiver is the same employer as the company, and succeeds to its obligations. It is settled, however, in other connections that the company and its receiver are different entities. Ellis v. Boston, Hartford & Erie Railroad, 107 Mass. 1 , 28. Fort Payne Coal & Iron Co. v. Webster, 163 Mass. 134 , 137. Bell v....