Fessenden School, Inc. v. American Mut. Liability Ins. Co.

• Decision Date: 07 January 1935
• Citation: 289 Mass. 124,193 N.E. 558
• Parties: FESSENDEN SCHOOL, Inc., v. AMERICAN MUT. LIABILITY INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

289 Mass. 124

193 N.E. 558

FESSENDEN SCHOOL, Inc., v. AMERICAN MUT. LIABILITY INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1935

Action of contract by the Fessenden School, Inc., against the American Mutual Liability Insurance Company. From an order by the appellate division of the Boston municipal court, entered on report, etc., reversing a finding for defendant and ordering judgment for plaintiff in the sum of $837.70 defendant appeals.

Reversed and rendered.

Appeal from Municipal Court of Boston, Appellate Division; J. G Brackett, Special Judge.

G Gleason, of Boston, for appellant.

J. P. Sullivan, of Boston, for appellee.

PIERCE, Justice.

This is an action of contract brought in the municipal court of the city of Boston, to recover a sum of money expended by the plaintiff in defending an action brought against it by one Ada Gauthier, an employee of the plaintiff, for personal injuries received by her. The case was submitted to the trial judge upon a case stated and the pleadings. The judge denied certain requests of the plaintiff, made findings of fact, found for the defendant and reported the case to the appellate division. The appellate division reversed the rulings of the trial judge, and ordered judgment to be entered for the plaintiff for $837.70 and interest from the date of the writ. The case is before this court on the appeal of the defendant from the final decision of the appellate division.

The pertinent facts are as follows: The plaintiff operates a private boarding school for boys. It became an insured person under the Workmen's Compensation Act (G. L. [Ter. Ed.] c. 152) by the payment to the defendant of a premium, provided for in the policy, which was based upon the entire remuneration earned during the policy period by the employees of the plaintiff. One Ada Gauthier was employed by the plaintiff as a head waitress. She received as compensation for her services $50 a month and in addition thereto her board and room, being required to live on the premises of the plaintiff. She was on duty while meals were served in the dining room, and was subject to calls at other times during the day and in the evening, in case she should be needed for serving any meals or refreshments in the dining room outside of the regular fixed meal times. Her room was on the second floor of a building known as the ‘ New Annex.’ Shortly before midnight of October 3, 1924, while she was still in the employ of the plaintiff and was on her way to the bathroom, she fell down a stairway, receiving injuries. The bathroom was located at the end of the corridor into which the door of her room opened, and the doorway entering the stairway was adjacent to the door entering the bathroom. The corridor was equipped with electric lights but during the night they were turned off by the employees in order that the lights would not shine through the transoms of the dining room employees and annoy them while sleeping. The corridor was not lighted at midnight on October 3, 1924, and she entered the stairway door by mistake and to her injury. Due notice of the injuries received was given to the defendant by the plaintiff, and the defendant, through its agents, investigated the facts concerning the injury and had a medical examination made of said Ada Gauthier. Ada Gauthier gave no notice at the time of her employment of claiming common-law rights, as required by G. L. (Ter. Ed.) c. 152, § 24.

By a writ dated June 22, 1925, one Ada Gauthier brought an action at law against Frederick J. Fessenden to recover a claim for damages sustained by a fall down a stairway. Succinctly stated, the declaration in this action alleges in count 1 that she was employed by Fessenden; that by reason of occupying a portion of the premises as a part of her compensation for services she became a tenant; and that the defendant negligently failed to keep the premises in a safe condition, as a result of which she sustained injuries. She also alleged, in count 2, that as an employee she had been invited by Fessenden to use a certain room on the premises so she could better serve him in her employment; that she accepted the invitation; that the defendant was bound to keep the stairs, hallways and passageways connected with said room properly lighted at all times when the occasion demanded; and that he negligently kept this hallway in an unsafe condition which resulted in her injuries. Subsequently said action was amended by substituting therein as the defendant ‘ The Fessenden School, Incorporated.’ Due notice in accordance with the terms of the policy was given the defendant in the present action by the substituted defendant in the action of Ada Gauthier, and demand was duly made upon it to defend said action, which the defendant refused to do. Upon a demurrer being filed by ‘ The Fessenden School, Incorporated,’ the plaintiff Gauthier again amended her declaration. The amended declaration, exhibit ‘ D’ did not allege that she was an employee of Fessenden or of the Fessenden School, Incorporated. It alleged in count 1 that she was a tenant, and in count 2 that she was a boarder, and in each count the plaintiff founded her cause of action upon the defendant's negligence and failure to keep the common halls, passageways and stairways lighted and in safe condition. The defendant the Fessenden School, Incorporated, answering the amended declaration, denied each and every allegation in the plaintiff's writ and amended declaration contained therein; alleged the contributory negligence of the plaintiff; that the plaintiff assumed the risk of the alleged accident; that the plaintiff at the time of the injury ‘ was in the employ of the defendant’ ; that ‘ the defendant was a subscriber under the provisions of General Laws, Chapter 152 * * * and that the plaintiff had at no time given notice in writing to the defendant under the terms of said Act that she claimed a right of action at common law to recover damages for personal injuries and that hence her right of action at common law was waived.’ Upon the refusal of the defendant in the present action to defend the action based upon the amended declaration, exhibit ‘ D,’ the Fessenden School, Incorporated, conducted the defence and employed counsel for that purpose, leave...