Cozzo v. Atlantic Refining Co.

• Decision Date: 01 February 1938
• Citation: 299 Mass. 260,12 N.E.2d 744
• Parties: FRANK COZZO, administrator, v. THE ATLANTIC REFINING COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 260

12 N.E.2d 744

FRANK COZZO, administrator, v. THE ATLANTIC REFINING COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

February 1, 1938

November 5, 6 1936.

Present: RUGG, C.

J., FIELD, DONAHUE & QUA, JJ.

Workmen's Compensation Act, Employee of independent contractor, To whom act applies. Negligence, Employer's liability: effect of workmen's compensation act. Practice, Civil, Special questions to jury; Exceptions: waiver; Charge to jury. Evidence, Relevancy.

No valid exception lies to a trial judge's exercise of discretion in submitting to a jury a special question upon an issue which is material to the case on trial and triable by them and upon which there is evidence for their consideration.

Evidence warranted a finding that the construction of a wall to carry an advertising sign on one of many service stations maintained by a corporation engaged in the business of preparing and marketing petroleum products and insured under the workmen's compensation act was a

"part of or process in" "the trade or business" of the corporation and not "merely ancillary and incidental" thereto, so that, under Section 18 of the act, an employee of an independent contractor, also insured who had been hired to construct the wall and who had not reserved his rights at common law, could not maintain an action at law against the corporation for injuries received while at work thereon.

Upon an issue whether certain work was a part of, or process in, the trade or business of a corporation, testimony and photographs as to the manner in which it carried on its business was admissible.

An exception to an instruction in a charge to the jury is waived if, after the judge gives further instructions purporting to correct the alleged error, no further exception is saved.

Exceptions to statements in a charge to a jury which might be open to just criticism if they stood alone were overruled because no prejudicial error appeared when the statements were considered in the light of the charge as a whole.

TORT. Writ in the Superior Court dated June 16, 1931. The action was tried before Macleod, J. There was a verdict for the defendant. The plaintiff alleged exceptions.

M. J. Robinson, (W.

F. McClennan with him,) for the plaintiff.

D. Needham, (W.

White with him,) for the defendant.

FIELD, J. This is an action of tort brought by the administrator of the estate of John Cozzo to recover for the death and conscious suffering of his intestate. There was a verdict for the defendant. The case comes before us on the plaintiff's exceptions.

These facts appear to be undisputed: The plaintiff's intestate was employed as a bricklayer by the Federal Construction Company, which was engaged as an independent contractor for the defendant in erecting a brick veneer wall against an existing brick party wall situated on the premises of the defendant; the plaintiff's intestate and a fellow employee went upon a staging to begin work upon the brick veneer wall when the staging collapsed, throwing them to the ground. The parties agreed that the plaintiff's intestate died as a result of the injuries sustained by him at the time of the collapse of the staging. There was evidence of conscious suffering by the plaintiff's intestate.

The parties agreed that the Federal Construction Company was insured in accordance with the provisions of the workmen's compensation law and it was undisputed that the defendant also was so insured. The plaintiff does not now contend that his intestate reserved any common law rights in accordance with the provisions of this law. See G. L. (Ter. Ed.) c. 152, Section 24.

The trial judge submitted to the jury the following special questions, which were answered in the affirmative: 1. "Was the defendant or any of its agents or servants guilty of negligence which caused or contributed to cause the injuries of the plaintiff's intestate?" 2. "Was the deceased, John Cozzo, in the exercise of due care?"

The judge also submitted to the jury a third special question, as follows: "Did the injuries of John Cozzo arise out of and in the course of employment which was a part of, or process in, the trade or business carried on by the defendant, and not merely ancillary and incidental to it?" The plaintiff objected to the submission of this question to the jury and, upon its being so submitted, excepted. The jury answered this question "Yes." The jury, having been instructed, subject to the plaintiff's exception, that if this question was so answered they must find for the defendant, returned a verdict accordingly. There are other exceptions to the admission of evidence, to the refusal of the judge to instruct the jury as requested and to parts of the charge. All relate to the matter involved in the third question submitted to the jury.

An employee who has not reserved his common law rights cannot maintain an action at law against his employer who is insured under the workmen's compensation law to recover damages for a personal injury sustained by such employee arising out of and in the course of his employment. G. L. (Ter. Ed.) c. 152, Sections 24, 26. Willard v. Bancroft Realty Co. 262 Mass. 133 , 134. Nor can an action at law be maintained against such employer to recover for the death of an employee resulting from such injury. G. L. (Ter. Ed.) c. 152, Section 68. McDonnell v. Berkshire Street Railway, 243 Mass. 94 . This protection against an action at law extends also to an "insured person" -- herein referred to as the general contractor or employer -- who enters into a contract "with an independent contractor to do such person's work" where the insurer of the general contractor or employer "would, if such work were executed by employees immediately employed by the insured, be liable to pay compensation under . . . [the workmen's compensation law] to those employees" unless such contract is "merely ancillary and incidental to, and is no part of or process in, the trade or business carried on by the insured," or "the injury occurred elsewhere than on, in or about the premises on which the contractor has undertaken to execute the work for the insured or which are under the control or management of the insured." G. L (Ter. Ed.) c. 152, Section 18. This protection rests on the ground that under G. L. (Ter. Ed.) c. 152, Section 18, the insurer of the general contractor or employer is required to pay compensation to workmen immediately employed by the independent contractor. Within the meaning of the workmen's compensation law such workmen are "employees" of the general contractor or employer and the insured general contractor or employer is the "insured" and not "some person other than the insured" against whom an action can be maintained by an employee, or in his name, under G. L. (Ter. Ed.) c. 152, Section 15, even though the independent contractor also is insured. White v. George A. Fuller Co. 226 Mass. 1 , 5. Bindbeutel v. L. D. Willcutt & Sons Co. 244 Mass. 195 , 199. Willard v. Bancroft Realty Co. 262 Mass. 133.

1. No contention is now made that the defendant is not entitled, in accordance with the principles stated, to protection against the maintenance of this action, other than on the ground that the case falls within the exception in G. L. (Ter. Ed.) c. 152, Section 18, applicable to a contract which is "merely ancillary and incidental to, and . . . no part of or process in, the trade or business carried on by the insured," that is, by the defendant. The answer by the jury to the third question submitted to them was adverse to this contention. If this question was rightly submitted and the answer thereto was not vitiated by error of law such answer precluded recovery by the plaintiff in this action and the instruction to the jury to return a verdict for the defendant in the event of such an answer was without error. No other issue material to the case remained to be disposed of. Stone v. Orth Chevrolet Co. Inc. 284 Mass. 525, 528. Palumbo v. DiMare, ante, 212.

2. The third question was rightly submitted to the jury.

It is within the discretion of a trial judge to submit to the jury for answer a special question upon an issue which is material to the case and triable by them and upon which there is evidence for their consideration. No valid exception lies to the exercise of this discretion within these limits American Surety Co. of New York v. 14 Canal Street, Inc. 276 Mass. 119 . Stone v. Orth Chevrolet Co. Inc. 284 Mass. 525 , 528. Palumbo v. DiMare, ante, 212. The issue presented by the question -- since it relates to the issue whether the defendant, admittedly insured under the workmen's compensation law, was, with relation to the plaintiff's intestate, an "insured," against whom an action at law could not be maintained, or, on the other hand, "some person other than the insured," against whom such an action could be maintained in accordance with the provisions of G. L. (Ter. Ed.) c. 152, Section 15 -- was material to the case and, so far as it was a matter of fact, was triable by the jury. See Young v. Duncan, 218 Mass. 346 , 351-352; White v. E. T. Slattery Co. 236 Mass. 28 , 31-32. See also Comerford's Case, 224 Mass. 571 , 573-574. Cases are distinguishable where an action at law is brought against a defendant admittedly "some person other than the insured," and there is a preliminary question for the determination of the judge whether the bringing of the action was authorized. See Becker v. Eastern Massachusetts Street Railway, 279 Mass. 435 , 441-444; Murray v. Rossmeisl, 284 Mass. 263 , 265-267; McDonald v. Employers' Liability Assurance Corp. Ltd. 288 Mass. 170.

There was evidence for the consideration of the jury upon the third question submitted to them warranting the answer thereto...