Dresser v. New Hampshire Structural Steel Co.
| Decision Date | 03 December 1936 |
| Citation | 4 N.E.2d 1012,296 Mass. 97 |
| Parties | DRESSER v. NEW HAMPSHIRE STRUCTURAL STEEL CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from Superior Court, Suffolk County; Morton, Judge.
Action of tort by Lee H. Dresser against the New Hampshire Structural Steel Company. Finding for defendant after hearing without a jury, and plaintiff brings exceptions.
Exceptions overruled.
A. C Kellogg, of Boston, for plaintiff.
K. C Parker, of Boston, for defendant.
This is an action of tort to recover damages for personal injuries sustained by the plaintiff, on November 4, 1930, allegedly resulting from the negligence of an employee of the defendant. The case was heard by a judge of the Superior Court, sitting without a jury, on November 19, 1935. No evidence was presented by either side. On November 27, 1935 a finding was entered for the defendant, and his request for a ruling that ‘ Upon all the facts agreed to as set forth in the defendant's amended answer, the plaintiff is not entitled to recover in this action,’ was granted. The plaintiff duly filed exceptions to the finding for the defendant and to the granting of the defendant's request for the ruling above quoted. The plaintiff agreed that the allegations of fact, set forth in the amendment to the defendant's answer, are true, and the defendant admitted, for the purpose of disposing of the law question, that the injury was caused by the negligence of the defendant and that the plaintiff was in the exercise of due care.
The facts stated in the amended answer of the defendant, which are agreed to be the plaintiff and the defendant, are as follows: ‘ * * * at the time of the alleged accident the plaintiff was in the employ of the Standard Engineering and Construction Company, a corporation duly existing by law, and was engaged in the prosecution of his employer's work in the construction of a bridge in the City of Boston; that the general contractor for the construction of said bridge was a corporation named Coleman Bros.; that a corporation named Boston Bridge Works was a sub-contractor under the said Coleman Bros. for the structural steel work, floor, and pavings of said bridge; that the plaintiff's employer and the defendant were employed by said Boston Bridge Works in the construction of said bridge as sub-contractors; that said Coleman Bros., Standard Engineering and Construction Company, Boston Bridge Works, and the defendant were each insured under, and had complied with, all the provisions of General Laws, chapter 152, and amendments thereto, known as the Workmen's Compensation Act; that the plaintiff had not reserved his common-law rights either against his employer or as against said Coleman Bros., or as against the Boston Bridge Works, or as against the defendant.’
Apart from the Workmen's Compensation Act, the plaintiff had a right of action against the servant of the defendant who negligently injured him during the course of their common employment (Osborne v. Morgan, 130 Mass. 102, 39 Am.Rep. 437; Rose v. Franklin Surety Co., 281 Mass. 538, 540, 183 N.E. 918) and in the circumstances shown, also had a right of action against the defendant, the plaintiff and the negligent employee of the defendant not being fellow servants of the defendant. Garland v. Townsend, 217 Mass. 297, 299, 104 N.E. 731.
The defendant does not controvert this position, but contends that the plaintiff's right of action, if any, is governed by the provision of G.L. (Ter.Ed.) c. 152, § 15, which reads and it maintains that, upon the agreed facts, the plaintiff's case is...
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