In re Doherty

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtQUA
Citation294 Mass. 363,2 N.E.2d 186
PartiesDOHERTY'S CASE. TUPPER'S CASE.
Decision Date27 May 1936

294 Mass. 363
2 N.E.2d 186

DOHERTY'S CASE.
TUPPER'S CASE.

Supreme Judicial Court of Massachusetts, Suffolk.

May 27, 1936.


Consolidated proceedings to recover compensation under the Workmen's Compensation Act for the deaths of Phillip Doherty and Ralph Tupper, employees, opposed by the Motor Express Agency, Incorporated, employer, and the Employers Liability Assurance Corporation, Limited, insurer. From a decree for claimants, the insurer appeals.

Reversed and rendered.

[2 N.E.2d 186]

Appeal from Superior Court, Suffolk County; Dowd, Judge.
G. Gleason, of Boston, for insurer.

D. H. Fulton, of Boston, for claimant Doherty.


C. A. McCarron, of Boston, for claimant Tupper.

QUA, Justice.

On the night of June 22-23, 1934, Doherty and Tupper were in the employ of one Albertini driving his truck from Albany, New York, to Boston. Albertini had a contract with Motor Express Agency, Inc. by which he was to furnish to that corporation two large semi-trailer trucks with operators to make round trips between the two cities. Motor Express Agency, Inc. was in the business of transporting merchandise as a carrier between Boston and Albany, using for that purpose the trucks which it hired from independent contractors. It was a subscriber under the Workmen's Compensation Act, G.L.(Ter.Ed.) c. 152. Albertini was not a subscriber. Doherty and Tupper were carrying a load for Motor Express Agency, Inc. under the contract of their employer Albertini. Shortly after midnight as they were descending a grade on a curve on the east side of Lebanon Mountain in the town of Hancock the semi-trailer truck left the road, tore through the fence and ran down the embankment, where it turned over and burst into flames. Both Doherty and Tupper perished in the wreck.

Although the immediate employer of the deceased workmen was not insured under the act, it is the contention of their dependents, the present claimants, that if the deceased had been employed directly by Motor

[2 N.E.2d 187]

Express Agency, Inc., they would have been entitled to compensation, that their employer, Albertini, had entered into a contract to do the express agency's work and therefore that the express agency's insurer became liable to the claimants under G.L. (Ter. Ed.) c. 152, § 18. The material portions of that section read as follows: ‘If an insured person enters into a contract, written or oral, with an independent contractor to do such person's work, or if such a contractor enters into a contract with a sub-contractor to do all or any part of the work comprised in such contract with the insured, and the insurer would, if such work were executed by employees immediately employed by the insured, be liable to pay compensation under this chapter to those employees, the insurer shall pay to such employees any compensation which would be payable to them under this chapter if the independent or sub-contractors were insured persons. * * * This section shall not apply to any contract of an independent or subcontractor which is merely ancillary and incidental to, and is no part of or process in, the trade or business carried on by the insured, nor to any case where the injury occurred elsewhere than on, in or about the premises on which the contractor has undertaken to execute the work for the insured or which are under the control or management of the insured.’

No witnesses testified as to how the accident occurred, and its precise cause is left in doubt. We need not, however, discuss the question whether the evidence was sufficient to support the finding of the board that the deaths arose out of and in the course of the employment, because it is plain that these claimants have no rights to compensation unless they are able to bring their cases within said section 18, and we think these cases are excluded from the benefit of...

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16 practice notes
  • Bagnel v. Springfield Sand & Tile Co., No. 3968.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • October 9, 1944
    ...299 Mass. 579, 13 N.E.2d 441), and who is having work done by contract in or about premises specified in section 18 (Doherty's Case, 294 Mass. 363, 2 N.E.2d 186, 105 A.L.R. 576), which work is part of or process in his trade or business. Corbett's Case, 270 Mass. 162, 170 N.E. The two subco......
  • Saab v. Massachusetts Cvs Pharmacy, LLC
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • November 13, 2008
    ...noted, however, it is not the role of courts to create a more comprehensive or logical system of compensation. See Doherty's Case, 294 Mass. 363, 366, 2 N.E.2d 186 (1936). That is a task for the Legislature. See Correia v. 896 N.E.2d 622 Firestone Tire & Rubber Co., supra at 349, 446 N.E.2d......
  • Clark v. M.W. Leahy Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 29, 1938
    ...Inc., Mass., 12 N.E.2d 441), and who is having work done by contract in or about premises specified in section 18 (Doherty's Case, Mass., 2 N.E.2d 186, 105 A.L.R. 576), which work is part of or process in his trade or business. Corbett's Case, 270 Mass. 162, 170 N.E. 56. This rule has been ......
  • Gateway Const. Co. v. Wallbaum
    • United States
    • United States State Supreme Court (Kentucky)
    • February 9, 1962
    ...which the Legislature has not put there. Arduini v. General Ice Cream Company, 123 Conn. 43, 192 A. 314, 114 A.L.R. 1333; Doherty's Case, 294 Mass. 363, 2 N.E.2d 186, 105 A.L.R. 576. The humane spirit of the statute does not warrant its extension beyond its legitimate scope. 58 Am.Jur., Wor......
  • Request a trial to view additional results
16 cases
  • Bagnel v. Springfield Sand & Tile Co., No. 3968.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • October 9, 1944
    ...299 Mass. 579, 13 N.E.2d 441), and who is having work done by contract in or about premises specified in section 18 (Doherty's Case, 294 Mass. 363, 2 N.E.2d 186, 105 A.L.R. 576), which work is part of or process in his trade or business. Corbett's Case, 270 Mass. 162, 170 N.E. The two subco......
  • Saab v. Massachusetts Cvs Pharmacy, LLC
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • November 13, 2008
    ...noted, however, it is not the role of courts to create a more comprehensive or logical system of compensation. See Doherty's Case, 294 Mass. 363, 366, 2 N.E.2d 186 (1936). That is a task for the Legislature. See Correia v. 896 N.E.2d 622 Firestone Tire & Rubber Co., supra at 349, 446 N.E.2d......
  • Clark v. M.W. Leahy Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 29, 1938
    ...Inc., Mass., 12 N.E.2d 441), and who is having work done by contract in or about premises specified in section 18 (Doherty's Case, Mass., 2 N.E.2d 186, 105 A.L.R. 576), which work is part of or process in his trade or business. Corbett's Case, 270 Mass. 162, 170 N.E. 56. This rule has been ......
  • Gateway Const. Co. v. Wallbaum
    • United States
    • United States State Supreme Court (Kentucky)
    • February 9, 1962
    ...which the Legislature has not put there. Arduini v. General Ice Cream Company, 123 Conn. 43, 192 A. 314, 114 A.L.R. 1333; Doherty's Case, 294 Mass. 363, 2 N.E.2d 186, 105 A.L.R. 576. The humane spirit of the statute does not warrant its extension beyond its legitimate scope. 58 Am.Jur., Wor......
  • Request a trial to view additional results

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