Dubois v. Mill

• Decision Date: 07 December 1948
• Citation: 323 Mass. 472,82 N.E.2d 886
• Parties: DUBOIS v. SOULE MILL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

323 Mass. 472

82 N.E.2d 886

DUBOIS

v.SOULE MILL.

Supreme Judicial Court of Massachusetts, Bristol.

Dec. 7, 1948.

Exceptions from Superior Court, Bristol County; Daniel T. O'Connell, Judge.

Personal injury action by Henry Dubois against Soule Mill. The plaintiff obtained a verdict and the defendant excepts to denial of defendant's motion for directed verdict and to refusal of two requests for instructions.

Exceptions overruled.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS, and WILLIAMS, JJ.

G. Walsh and C. A. Adams, both of New Bedford, for plaintiff.

E. Field, of Boston, for defendant.

RONAN, Justice.

The plaintiff, a steam fitter employed by an independent contractor, has obtained a verdict for personal injuries sustained by reason of being thrown off a ladder through the negligence of one of the employees of the defendant while the plaintiff was working at the defendant's mill. The jury, in answer to a special question submitted to them, found that the plaintiff's work was merely ancillary and incidental to, and not a part of or process in, the trade or business conducted by the defendant. The defendant excepted to the denial of its motion for a directed verdict and to the refusal of two requests for instructions.

The Eastman Heat Control Corporation, hereinafter called the corporation, specialized in making surveys of the heating systems of large industrial plants and in effecting changes in such systems so as to increase their efficiency and reduce their operating costs. It wrote the defendant, after it had made a study of its plant recommending the making of certain changes for ‘the rehabilitation work’ required to be done on the heating system. These changes consisted in the main of the substitution of drip traps for forty-two valves; the repair of all existing traps; the arrangement of return traps and drip traps so that one part of the system would not interfere with any other part; and the removal of traps on the first floor and trapping each independent line so as to assure the heating of the coils in the basement of the mill. The letter contained a tentative estimate of the labor cost of making these improvements and enclosed a blank which the defendant was to sign in order to secure the materials ‘to be used for repairs to the heating system’ under the war time regulations. The letter also stated that, if additional work became necessary as the job progressed, that matter would be discussed with the defendant. The defendant accepted the recommendations of the corporation and authorized the work to be done. Additional work was ordered by the defendant from time to time. The furnishing of a thermostat was one piece of additional work, and another was the installation of a steam pipe from the cloth room to the blacksmith shop. It was while engaged in covering this pipe that the plaintiff was injured. Both the corporation and the defendant were insured under the workmen's compensation act. G.L.(Ter.Ed.) c. 152, § 1 et seq., as amended.

There was evidence that the defendant had a mechanical department under the supervision of a chief engineer, that in this department there was a steam fitter who was regularly employed by the defendant, and that other mills had similar departments. There was further evidence that any competent steam fitter could do the particular work the plaintiff was performing at the time he was injured, and that all of the work undertaken by the corporation could be done by competent steam fitters. The defendant contends that the work contracted to be performed by the corporation amounted to no more than making repairs on the heating system and constituted a part of the defendant's business of maintaining and operating its mill, that the plaintiff came within the coverage of the compensation insurance provided by the defendant, and that he could not maintain an action against it at common law to recover damages for his injury.

The statute, G.L.(Ter.Ed.) c. 152, § 18, as amended by St.1939, c. 93, provides that ‘If an insured person enters into a contract, written or oral, with an independent contractor to do such person's work * * * and the insurer would, if such work were executed by employees immediately employed by the insured, be liable to pay compensation under this chapter to those employees, the insurer shall pay to such employees any compensation which would be payable to them under this chapter if the independent or sub-contractors were insured persons. * * * This section shall not apply to any contract of an independent or sub-contractor which is merely ancillary and incidental to, and is no part of or process in, the trade or business carried on by the insured * * *.’

The purpose of the statute is to prevent an employer from avoiding the application of the workmen's compensation act by letting out his work to an independent contractor or sub-contractor and so depriving the employees of the latter (who have not retained their rights at common law) of the benefits of compensation although they were really engaged in performing the work of the principal. Such employees, being covered by the insurance of the principal, have no right of action against him to recover for personal injuries arising out of and in the course of their employment in such word. Cozzo v. Atlantic Refining Co., 299 Mass. 260, 12 N.E.2d 744;Clark v. M. W. Leahy Co., Inc., 300 Mass. 565, 568, 16 N.E.2d 57.

But if the work undertaken by the independent contractor or sub-contractor is merely ancillary and incidental to, and no part of or process in, the trade or business conducted by the principal, an employee of the former is not covered by the insurance of the latter and, if injured by negligence of the principal or his employees, may recover damages from him in an action at common law. Caton v. Winslow Bros. & Smith Co., 309 Mass. 150, 34 N.E.2d 638;Cannon v. Crowley, 318 Mass. 373, 61 N.E.2d 662. See Meehan v. Gordon, 307 Mass. 59, 29 N.E.2d 759;Bencivengo v. Walter C. Benson Co., Inc., 319 Mass. 110, 64 N.E.2d 918. There are undoubtedly many kinds of work the necessity for the performance of which constantly appears in the every day use of the premises and is so closely connected with keeping one's factory or mercantile establishment in good condition that they become a part of the trade conducted there. For instance, the removal of an electrical transformer in a milk pasteurizing plant, MacAleese's Case, 301 Mass. 25, 16 N.E.2d 63; the washing of windows in a private school, Hill's...