Hudyka v. Interstate Tire & Brake Stores, Inc.

• Decision Date: 30 June 1971
• Citation: 360 Mass. 102,271 N.E.2d 617
• Parties: Thaddeus HUDYKA v. INTERSTATE TIRE & BRAKE STORES, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 617

271 N.E.2d 617

360 Mass. 102

Thaddeus HUDYKA v. INTERSTATE TIRE & BRAKE STORES, INC.

Supreme Judicial Court of Massachusetts, Hampden.

Argued May 6, 1971.

Decided June 30, 1971.

Edward J. Farrell, Springfield (Earl H. Wright, Springfield, with him), for defendant.

Herbert Murphy, Springfield, for plaintiff.

Before TAURO, C.J., and SPALDING, CUTTER, QUIRICO and BRAUCHER, JJ.

BRAUCHER, Justice.

This action of tort for negligence causing personal injuries is before us on the defendant's exceptions after a jury verdict for the plaintiff. Roy M. Wright, Inc. (Wright), the plaintiff's employer, was a subcontractor hired to perform grading and other work in the construction of housing for the elderly in Enfield, Connecticut. Among Wright's equipment was a 'payloader' which had a flat tire on March 13, 1965. The tire was approximately five and one-half feet in height and weighed approximately 786 pounds empty. Under a contract with Wright the defendant sent two employees to the construction site to replace the flat tire with another tire owned by Wright. Wright instructed the plaintiff, a maintenance man, to assist in changing the tire. The three men used a 'come-along' to tighten a chain wrapped around the outer perimeter of the new tire, in an attempt to seal the tubeless tire against the wheel hub so that air would not escape as the tire was being inflated. Under the tension a hook on one end of the 'come-along' unbent, and the 'come-along' struck and injured the plaintiff.

The plaintiff received workmen's compensation payments from Wright's insurer. He had not reserved his common law rights under G.L. c. 152, § 24. Wright's insurer did not bring action against the defendant within the time allowed by G.L. c. 152, § 15, and the plaintiff then brought this action. The defendant excepted to the denial of its motions for a directed verdict and for a new trial, to the admission and exclusion of certain evidence, and to parts of the judge's instructions to the jury.

1. Last clear chance. The jury were instructed to apply the doctrine of 'last clear chance' under Connecticut law. Doolan v. Werner, 130 Conn. 394, 34 A.2d 731. See Trudel v. Gagne, 328 Mass. 464, 465-466, 104 N.E.2d 489; Restatement 2d: Conflict of Laws, § 164, comment e. The defendant contends that the doctrine was inapplicable under Connecticut law because it was not invoked in the declaration, citing Kinderavich v. Palmer, 127 Conn. 85, 15 A.2d 83, and Lewandoski v. Finkel, 129 Conn. 526, 29 A.2d 762. The motion for a directed verdict does not present such an idea. See Pilos v. First Natl. Stores Inc., 319 Mass. 475, 477, 66 N.E.2d 576; Cheng v. Chin Wai Yip, 339 Mass. 173, 175, 158 N.E.2d 331. The law of the forum regulates the remedy and its incidents. Levy v. Steiger, 233 Mass. 600, 601, 124 N.E. 477. Peterson v. Boston & Maine R.R., 310 Mass. 45, 47, 36 N.E.2d 701. See Restatement 2d: Conflict of Laws, § 127. If the objection had been properly made, it could have been cured by amendment. G.L. c. 231, §§ 51, 125.

2. Common employment. The defendant argues that the defence of common employment bars the maintenance of this action, that a verdict should have been directed for the defendant on this ground and that the judge erred in leaving the question to the jury. G.L. c. 152, §§ 15, 18, 24. Clark v. M.W. Leahy Co. Inc., 300 Mass. 565, 568--569, 16 N.E.2d 57. STEWART V. ROY BROS. INC., MASS., 265 N.E.2D 357.^A See Locke, Workmen's Compensation, §§ 152-154, 661-665. The defence is not applicable if the defendant's contract 'is merely ancillary and incidental to, and is no part of or process in, the trade or business carried on' by Wright. G.L. c. 152, § 18. The evidence warranted a finding that the unusual repairs made by the defendant to Wright's equipment were 'merely ancillary and incidental to' Wright's business and not 'part of or process in' it. Meehan v. Gordon, 307 Mass. 59, 62, 29 N.E.2d 759. Dubosi v. Soule Mill, 323 Mass. 472, 474-475, 82 N.E.2d 886. Abbott v. Link-Belt Co., 324 Mass. 673, 676, 88 N.E.2d 551, 554. 'The work being done was not a minor affair, but was such as the defendant was regularly employed to do.' Abbott v. Link-Belt Co., supra. this is not a case 'where a branch of or a part of * * * (Wright's)...