Employers Mut. Liability Ins. Co. of Wis. v. Ford Motor Co.

• Decision Date: 01 March 1957
• Citation: 335 Mass. 504,140 N.E.2d 634
• Parties: EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN et al. v. FORD MOTOR COMPANY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 634

140 N.E.2d 634

335 Mass. 504

EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN et al. v. FORD MOTOR COMPANY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 4, 1957.

Decided March 1, 1957.

Daniel A. Canning, Boston, Bernard T. Loughran, Watertown, for plaintiffs Employers Mut. Liability Ins. Co. of Wisconsin et al.

Samuel P. Sears, Lawrence R. Cohen, Boston, for defendant Ford Motor Co.

Charles E. Jellison, Boston, for defendant Schell.

Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.

SPALDING, Justice.

This suit for declaratory relief comes here with a report of the evidence and findings of facts by the judge. The pertinent facts are these. John I. Hass Co., Inc., hereinafter called Hass, entered into a contract with Ford Motor Company, hereinafter called Ford, to paint the interior of Ford's plant in Somerville. On October 8, 1954, one Schell, an employee of Hass, reported for work at Ford's premises. Before entering, Schell was told by a guard to sign a document which was described by the guard as a 'pass.' The document was divided into two parts by perforations, and Schell, without reading them, signed both. The document was then separated and one portion entitled 'personal pass' was given to Schell and the other portion entitled 'waiver' was retained by Ford. ¹ On October 21, 1954, while working at the Ford plant Schell was involved in an accident and sustained serious injuries.

Subsequently Schell made a claim for workmen's compensation. After a hearing before a single member a decision awarding Schell Compensation was rendered on March 29, 1955. No claim of review was filed by the insurer within the time allowed by G.L. (Ter.Ed.) c. 152, § 8.

The bill, which is brought by Hass's insurer and Hass against Ford and Schell, asked for a declaration as to (1) the effect of the so called 'waiver' given by Schell to Ford upon the employer-employee relationship existing between Schell and Hass; and (2) the effect of this instrument on the rights of the insurer to maintain a third party action against Ford under G.L. (Ter.Ed.) c. 152, § 15, as amended.

The judge ordered the bill dismissed, and from a decree entered in accordance with this order the plaintiffs appealed. ² He found, among other things, that the insurer had failed to exercise its right to proceed against Ford within the time prescribed by § 15.

A bill for a declaratory decree is not usually dismissed because the court refuses the interpretation sought by the plaintiff. Ordinarily a declaratory decree will be entered in any event. Booker v. City of Woburn, 325 Mass. 334, 336, 90 N.E.2d 558; Morgan v. Banas, 331 Mass. 694, 698, 122 N.E.2d 369; County of Dukes County v. New Bedford, Woods Hole, Martha's Vineyard & Nantucket Steamship Authority, 333 Mass. 405, 406, 131 N.E.2d 206. But the declaratory judgments act, G.L. (Ter.Ed.) c. 231A, provides in § 3 that the 'court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceedings or for other sufficient reasons.' St.1945, c. 582, § 1. The appeal from the final decree brought here the question of discretion whether a declaratory decree ought to be entered. Merchants Mutual Casualty Co. v. Leone, 298 Mass. 96, 99-100, 9 N.E.2d 552; County of Dukes County v. New Bedford, Woods Hole, Martha's Vineyard & Nantucket Steamship Authority, 333 Mass. 405, 407, 131 N.E.2d 206. For reasons presently appearing we are of opinion that a declaratory decree should not be entered, and that the bill was rightly dismissed.

1. There is no basis for a declaratory decree as to the effect of the 'waiver' on the employer-employee relationship existing between Schell and Hass. Such a decree would be material only with regard to Schell's right to an award under the workmen's compensation act. But that question was adjudicated by appropriate proceedings before the Industrial Accident Board, which are no longer subject to review or appeal. Those proceedings are not open to collateral attack here. See Boyle v. Building Inspector of Malden, 327 Mass. 564, 566, 90 N.E.2d 925, and cases cited. Hence any declaration touching the effect of the 'waiver' on the relationship between Scheel and Hass would, at this time, be academic. See Brown v. Neelon, 335 Mass. ----, 140 N.E.2d 213.

2. The plaintiffs in seeking a declaration as to the effect of the 'waiver' on the rights of the insurer against Ford under G.L. (Ter.Ed.) c. 152, § 15, as amended, likewise do not present an appropriate case for declaratory relief. Section 15, so far as here material, reads, 'If compensation be paid under this chapter, the insurer may enforce * * * the liability of * * * [the person other than the insured legally at fault], and if, in any case where the employee has claimed or received compensation within six months of the injury, the insurer does not proceed to enforce such liability within a period of nine months after said injury, the employee may so proceed'. (Emphasis supplied.) St.1943, c. 432.

Ford argues--and we agree--that this provision requires the insurer to bring its action against the third person within nine months after the injury. After that period the right to bring such an action passes to the employee and he alone has the right to bring the action. A contrary...