Greem v. Cohen

• Decision Date: 29 November 1937
• Citation: 298 Mass. 439,11 N.E.2d 492
• Parties: PETER GREEM v. HARRY COHEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

298 Mass. 439

11 N.E.2d 492

PETER GREEM v. HARRY COHEN.

Supreme Judicial Court of Massachusetts, Suffolk.

November 29, 1937

January 5, 1937.

Present: RUGG, C.

J., DONAHUE LUMMUS, & QUA, JJ.

Negligence Employer's liability: notice, fellow servant, effect of workmen's compensation act. Workmen's Compensation Act.

By force of G.L (Ter. Ed.) c. 152, Section 66, an employee of one not insured under the workmen's compensation act could recover from his employer for injuries caused by negligence of a fellow employee who was exercising superintendence without giving the notice described in Section

6 of G.L. (Ter Ed.) c. 153.

TORT. Writ in the Superior Court dated June 28, 1932. The action was tried before M. Morton, J. There was a verdict for the plaintiff the sum of $1,250. The defendant alleged exceptions.

Lee M. Friedman, (F. L. Kozol with him,) for the defendant. J. E. O'Connell, for the plaintiff.

RUGG, C.J. The plaintiff seeks in this action of tort to recover compensation for injuries sustained by him while in the employ of the defendant. The only questions now raised relate to the count in the declaration which charged that "on or about April 24, 1932, he was in the employ of the defendant; that, by reason of the negligence of some person in the service of the defendant, entrusted with and exercising superintendence, whose sole principal duty was that of superintendence, the plaintiff, while in said employ and while in the exercise of due care and diligence was injured and suffered great pain of body and anguish of mind and paid out large sums of money for medicines and medical attendance . . . ." There was sufficient evidence, which need not be narrated, to support these allegations.

A motion filed by the defendant requesting that a verdict be directed in his favor was denied. The trial judge instructed the jury that the only question to be determined was whether or not the superintendent or foreman was negligent, and refused to instruct the jury that the plaintiff was required to prove that he gave notice of his injury to the defendant as required by G.L. (Ter. Ed.) c. 153, Sections 1, 6. Exceptions were duly saved on these points.

The cause of action set out in the declaration and supported by evidence was personal injury received by the plaintiff while in the employ of the defendant through the negligence of his superintendent or foreman. That was a cause of action which did not exist at common law because of the fellow servant doctrine. The defendant was not insured under the workmen's compensation act. Therefore, under G.L. (Ter. Ed.) c. 152, Section 66, the defendant was deprived of the defence that "the injury was caused by the negligence of a fellow employee." The plaintiff, however, is still bound to prove the other necessary elements giving rise to liability on the part of the defendant.

The underlying reason why an employer was not liable at common law for injuries sustained by an employee through the negligence of a superintendent or foreman was that the latter was a fellow servant of the former. A defendant was not liable at common law for injuries received by an employee through the negligence of his superintendent or foreman because they were fellow servants. Farwell v. Boston & Worcester Railroad, 4 Met. 49. Albro v. Agawam Canal Co. 6 Cush. 75. O'Connor v. Roberts, 120 Mass. 227 . Flynn v. Salem, 134 Mass. 351 . Neagle v. New York, New Haven & Hartford Railroad, 214 Mass. 472, 474. Grebenstein v. Stone & Webster Engineering Corp. 205 Mass. 431, 437. Jordan v. New England Structural Co. 197 Mass. 43 , 45. Granara v. Jacobs, 212 Mass. 271 , 274. Colford v. New England Structural Co. 205 Mass. 283, 284. The law was changed in this particular before the enactment of the workmen's compensation act by the passage of the employers' liability act, St. 1887, c. 270; now G.L. (Ter. Ed.) c. 153. It is provided by said c. 153, Section 1, that "If personal injury is caused to an employee . . . by reason of . . . negligence of a person in the service of the employer who was intrusted with and was exercising superintendence . . . ; The employee, or his legal representatives, shall, subject to the eight following sections, have the same rights to compensation and of action against the employer as if he had not been an employee . . . ." One of the "eight following sections" is Section 6, which provides that "No action for the recovery of damages for injury under section one of this chapter . . . shall be maintained unless [written] notice of the time, place and cause of the injury is given to the employer within sixty days . . . after the accident which causes the injury . . . ." There was no allegation or proof that such written notice was given in the case at bar.

The argument of the defendant is that the employers' liability act and the workmen's compensation act coexist in our statutes (G.L. [Ter. Ed.] cc. 152, Section 153), that each must be given full force and effect in its own field, that they must be construed, so far as possible, to constitute an harmonious body of statutory law, and that hence the plaintiff had no cause of action upon the facts here disclosed, because, in order to make out a cause of action, he must rely upon the employers' liability act, which alone gives a right of recovery by an action at law to an employee for injuries received by the negligence of a superintendent, and which requires proof that written notice was given within the specified time. The defendant relies upon decisions to the effect that the written notice under the employers' liability act is a condition precedent to the right of action. "It is not simply one of the steps in enforcing a right of action already existing, but is the last circumstance necessary to the creation of such right. The liability is not complete until the notice is given." Healey v. George F. Blake Manuf. Co. 180 Mass. 270 , 272, 273. Finneran v. Graham, 198 Mass. 385 . Baird v. Baptist Society, 208 Mass. 29. Meniz v. Quissett Mill, 216 Mass. 552 . Sharp v. Giesow, 265 Mass. 506. Miller v. Rosenthal, 258 Mass. 368 .

That contention of the defendant, in our opinion, cannot be sustained. The history of the common law and the statutory modifications enacted from time to time on this point demonstrate that the requested rulings were denied rightly and that the instruction given was correct. As already pointed out, at common law an employee had no cause of action against his employer to recover compensation for injuries sustained by him through the negligence of a superintendent, foreman, or other fellow workman. By the enactment of the employers' liability act, St. 1887, c. 270, now G.L. (Ter. Ed.) c. 153, the liability of an employer to an employee was greatly extended in other respects as well as by the abolition to some extent of the rigor of the fellow servant rule. Ryalls v. Mechanics' Mills, 150 Mass. 190 . In this state of the law the workmen's compensation act was enacted. St. 1911, c. 751 (now G.L. [Ter. Ed.] c. 152). Its Part I was entitled "Modification of Remedies."

By Section 1 it was provided that in "an action to recover damages for personal injury sustained by an employee in the course of his employment, or for death resulting from personal injury so sustained, it shall not be a defense: 1. That the employee was negligent; 2. That the injury was caused by the negligence of a fellow employee; 3. That the employee had assumed the risk of the injury." It is manifest that these provisions were designed to make sweeping changes in the law governing the relations of master and servant as to personal injuries received by the latter. They were not mere amendments to the existing law. The workmen's compensation act was new legislation having a procedure all its own. It established in instances to which it was applicable, in place of the common law or statutory remedy for personal injury, based upon tort, a system whereby compensation for all personal injuries or death of the employee should be determined...