Ferullo's Case

• Decision Date: 24 September 1954
• Parties: Patsy FERULLO'S CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 858

121 N.E.2d 858

331 Mass. 635

Patsy FERULLO'S CASE.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 3, 1954.

Decided Sept. 24, 1954.

John T. Foynes, Boston, for insurer.

Laurence S. Locke, Boston, for the claimant.

Before QUA, C. J., and LUMMUS, SPALDING, WILLIAMS and COUNIHAN, JJ.

QUA, Chief Justice.

This case turns upon the construction of that part of G.L. (Ter.Ed.) c. 152, § 26, as appearing in St.1943, c. 529, § 8, which was originally inserted by St.1930, c. 205 and which reads as follows: 'For the purposes of this section, any person while operating or using a motor or other vehicle, whether or not belonging to his employer, with his employer's general authorization or approval, in the performance of work in connection with the business affairs or undertakings of his employer, and whether within or without the commonwealth * * * shall be conclusively presumed to be an employee.'

There appears to be no dispute about the facts. The claimant's own testimony was in substance that on January 26, 1949, while he was engaged by Milano Bros., Inc. in hauling gravel from Danvers to 'an M. T. A. job' in East Boston, using his own truck, driven by himself, he was injured by the tipping over of the truck. He was paid $4.50 an hour for truck and driver and had to pay for his gasoline and oil. If for some reason he did not want to drive he could put some one else on the truck. When asked if he would decide how fast to travel he replied that he had to stay within the speed laws. The general manager of Milano Bros., Inc., testified that it made no difference to him if anybody else drove Ferullo's truck, and that when a week was up he got a bill from the claimant as 'Ferullo Trucking Company' and paid him for himself and his truck.

The single member found, among other things, that the claimant determined the speed at which he should operate his truck, within the limit of the speed laws; that he was not required to drive the truck himself; and that he was an independent contractor and not an employee of Milano Bros., Inc. The single member dismissed the claim. The reviewing board affirmed the findings, rulings, and decision of the single member, but the Superior Court entered a decree in favor of the claimant, from which the insurer of Milano Bros., Inc., appeals.

The claimant takes the position that the act of 1930 created a conclusive presumption that a person in his situation with reference to Milano Bros., Inc., was an employee of that corporation for purposes of compensation. In spite of the words 'any person' we are not convinced that this is the meaning of the act.

Statutes are to be construed in the light of the prexisting common and statutory law with reference to the mischief probably intended to be remedied. Tilton v. Haverhill, 311 Mass. 572, 577, 42 N.E.2d 588; City of Boston v. Quincy Market Cold Storage & Warehouse Co., 312 Mass. 638, 643, 45 N.E.2d 959; Johnson's Case, 318 Mass. 741, 746-747, 64 N.E.2d 94; Meunier's Case, 319 Mass. 421, 423, 66 N.E.2d 198. It is not to be lightly supposed that radical changes in the law were intended where not plainly expressed. Commissioner of Corporations & Taxation v. Dalton, 304 Mass. 147, 150, 23 N.E.2d 147. 'General expressions may be restrained by relevant circumstances showing a legislative intent that they be narrowed and used in a particular sense.' Commonwealth v. Welosky, 276 Mass. 398, 402, 177 N.E. 656, 659. The construction urged by the claimant seems to us inconsistent with the previous history of the subject matter, with the wording of the act itself, and with intimations in subsequent decisions.

Before the statute of 1930 it had long been settled that at common law, where an owner of a vehicle let it out with a driver to a person who gave directions as to where he desired the vehicle to go and what work he desired to have done, but had no control over the method of driving, the driver remained in the employ of the owner and did not become the employee of the hirer. Shepard v. Jacobs, 204 Mass. 110, 90 N.E. 392, 26 L.R.A., N.S., 442; Clancy's Case, 228 Mass. 316, 117 N.E. 347; Mahoney v. New York, New Haven & Hartford Railroad 240 Mass. 8, 10-11, 132 N.E. 384; Wall's Case, 293 Mass. 93, 199 N.E. 326. A fortiori, if the lender drives his vehicle himself and retains control over the method of driving, he is an independent contractor and not an employee of the hirer. Centrello's Case, 232 Mass. 456, 122 N.E. 560; Pyyny v. Loose-Wiles Biscuit Co., 253 Mass. 574, 149 N.E. 541; Khoury v. Edison Electric Illuminating Co., 265 Mass. 236, 238, 164 N.E. 77, 60 A.L.R. 1159; Strong's Case, 277 Mass. 243, 178 N.E. 637; Reardon v. Coleman Bros. Inc., 277 Mass. 319, 178 N.E. 638. This is the ordinary situation where a taxicab is driven by its owner. It was also clear that the workmen's compensation law did not give protection to drivers who were independent contractors. Centrello's Case, 232 Mass. 456, 457, 122 N.E. 560; Winslow's Case, 232 Mass. 458, 122 N.E. 561; Eckert's Case, 233 Mass. 577, 124 N.E. 421; Robichaud's Case, 234 Mass. 60, 124 N.E. 890. But it had been further held not long before the passage of the 1930 statute that, even though the driver was in the general employ of the insured as an employee and not as an independent contractor, if he drove a vehicle and had control over the actual driving, he immediately ceased to be an employee with respect to the driving, even if he was driving on a mission that was part of his employment. Bradley's Case, 269 Mass. 399, 169 N.E. 156. A similar decision was made in Schofield's Case, 272 Mass. 229, 172 N.E. 346. ¹ The proposition established by these cases is clearly stated in Child's Case, 274 Mass. 97, 98-99, 174 N.E. 211, where the injury had occurred before the passage of the statute, but the case was decided by this court after its passage. See Hardaker's Case, 274 Mass. 7, 174 N.E. 210; Wescott v. Henshaw Motor Co., 275 Mass. 82, 87-88, 175 N.E. 153.

We think it was the law as declared in this last group of cases which the act of 1930 was intended to change. It might well be thought a hardship that an employee while still engaged in his employer's work should lose all compensation the moment he started to drive a vehicle, even though the method of driving was not subject to dictation by the employer. Such a hardship could be corrected by a comparatively simple change without breaking down the general distinction between employees and independent contractors which underlies the whole compensation law. Under this construction of the act of 1930 the general relation of employer and employee must exist before the presumption of the statute can become operative, and the effect of the presumption is to continue in force the obligations of the compensation law while the employee drives on his employer's business.

This construction is consistent with the title of the act of 1930 which is 'An Act relative to the payment of compensation under the workmen's compensation laws for injuries received by employees while operating or using motor or other vehicles.' ² It explains the otherwise strange wording of the statute which refers three times to 'his employer.' These are apt words to use in reference to an employment assumed already to exist, but they are not apt for the purpose of creating an entirely new employment in the absence of any existing employment relation. These words show that 'any person' means any person employed and does not comprehend persons not already in an employment relation.

The decisions since the act of 1930 became operative are consistent with our present construction of that statute. Manley's Case, 280 Mass. 331, 182 N.E. 486, was a case in which a general employment previously existed, and what is said about the statute must be read as applicable to such a case. It was said that the act was passed to modify the law as found in cases like Schofield's Case, Child's Case, and Hardaker's Case, hereinbefore cited. In Higgins' Case, 284 Mass. 345, 347, 187 N.E. 592, it was said that prior to the amendment of 1930 one operating his own automobile was deemed an independent contractor and not an employee with reference to that operation, although he might have been an employee with reference to other parts of his work, but under that amendment he 'remained' ³ an employee while operating his automobile. In Campbell's Case, 288 Mass. 529, 530-531, 193 N.E. 365, 366, it was said that the act of 1930 'was enacted, to the effect that a general employee remained an employee3 'while operating or using a motor or other vehicle whether or not belonging to his employer, with his employer's general authorization or approval, in the performance of work in connection with the business affairs or undertakings of his employer,' and such person who receives a personal injury 'shall be conclusively presumed to be an employee.'' In every case in which the amendment of 1930 has been applied or discussed there has been, when the driving began, an existing employment, not created by force of the presumption, to which the amendment could attach itself. In addition to cases already cited, see Harvey's Case, 295 Mass. 300, 3 N.E.2d 756; Cahill's Case, 295 Mass. 538, 4 N.E.2d 332; Noble v. Greenbaum, 311 Mass. 722, 42 N.E.2d 823. In our opinion none of the previous decisions is in conflict with what is here decided.

We do not believe it was the purpose of the act of 1930 to turn every driver of his own vehicle into an employee of every person for whom he does work. If it had that effect it would seem that the driver of his own taxicab would become by conclusive presumption of law the employee of any person who, while about his business hailed the cab. Neither do we think the act was intended to make a person in the position of the present claimant an employee whenever he himself does the driving but to leave him an independent contractor when he sends another driver with his...