In re Scribner

• Decision Date: 28 May 1918
• Citation: 231 Mass. 132,120 N.E. 350
• Parties: SCRIBNER'S CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 132

120 N.E. 350

SCRIBNER'S CASE.

Supreme Judicial Court of Massachusetts, Suffolk.

May 28, 1918.

Appeal from Superior Court, Suffolk County.

Proceedings for compensation under the Workmen's Compensation Act by William C. Scribner, the employé, opposed by the Framingham Ice Company, the employer, and the Travelers' Insurance Company, the insurer. Compensation was awarded, the award affirmed by the superior court, and the insurer appeals. Decree reversed, and decree ordered in favor of the insurer.

Walter I. Badger and Louis C. Doyle, both of Boston, for appellant.

Edward L. McManus, of Boston, for appellee.

CARROLL, J.

The employé, who was in the general employment of the Framingham Ice Company (hereinafter called the Ice Company) was injured while at work in the yard of the Framingham Coal Company (hereinafter called the Coal Company). Both companies were insured under the Workmen's Compensation Act. The Industrial Accident Board awarded compensation against the insurer of the Ice Company. The only question before us on this appeal is whether Scribner at the time of his injury was an employé of the Ice Company within the meaning of the Workmen's Compensation Act.

The Ice Company let to the Coal Company a pair of horses, wagon and driver. This happened frequently; and on one occasion under this arrangement, Scribner worked for the Coal Company two or three months. He received his wages from the Ice Company. The proprietor of the Ice Company testified that he ‘looked to Scribner to take care of the horse and team which he owned,’ but ‘exercised no supervision with respect to his delivering coal.’ ‘Scribner worked there the same as their men did, [and] took his orders from the office of the coal company.’ The employé testified that Mr. Twitchell (one of the clerks employed by the Coal Company) told him where to deliver the material; that he took his directions from Twitchell; that he helped to load coal, brick, wood, line or cement; and that sometimes he had a helper when making deliveries.

‘In determining whether, in a particular act, he is the servant of his original master or the person to whom he has been furnished the general test is whether the act is done in business of which the person is in control as a proprietor, so that he can at any time stop it or continue it, and determine the way in which it shall be done, not merely in reference to the result to be reached, but in reference to the method of reaching the result.’ Shepard v. Jacobs, 204 Mass. 110, 112, 90 N. E. 392, 393 (26 L. R. A. [N. S.] 442, 134 Am. St. Rep. 648). ‘The test is whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master, or becomes subject to that of the party to whom he is lent or hired.’ Coughlan v. Cambridge, 166 Mass. 268, 277, 44 N. E. 218, 219. Applying those tests, it is clear that Scribner at the time of the injury was an employé of the Coal Company; he was in that company's yard, engaged in its business and doing its work; and he was under its direction and subject to its orders. Whatever may have been the relation of Scribner to the Ice Company in the care and management of the horses, at the time of his injury he was engaged in work over which that company had no control. The business was that of the Coal Company and under its direction. The transaction between the two companies amounted only to a loan of the Ice Company's servant to the Coal Company, the servant became the employé of the latter for the time being, and on the evidence he must be found to have assented to this although remaining in the general employment of the Ice Company. Coughlan v. Cambridge, supra; Hasty v. Sears, 157 Mass. 123, 31 N. E. 759,34 Am. St. Rep. 267;Samuelian v. American Tool & Machine Co., 168 Mass. 12, 46 N. E. 98, and cases cited.

Pigeon's Case, 216 Mass. 51, 102 N. E. 932, Ann. Cas. 1915A, 737, relied on by the employé, is distinguishable. In that case the driver was on his way to water the horse which was owned by Shaw, the general employer, who retained the general direction of the employé except so far as his control was surrendered to the city of Springfield. This relation of control included the care of the horses to the extent, at least, of seeing that they were watered. When injured the employé was under the control of the original master and occupied in his work, and not engaged in the business of the city of Springfield nor under its direction. See in this connection W. S. Quinby Co. v. Estey, 221 Mass. 56, 108 N. E. 908; Shepard v. Jacobs, supra; Delory v. Blodgett, 185 Mass. 126, 69 N. E. 1078,64 L. R. A. 114, 102 Am. St. Rep. 328.

In Clancy's Case, 228 Mass. 316, 117 N. E. 347, the deceased was not in the service of the defendant city nor under its direction when injured; he was the servant of his employer, McGillicuddy, and engaged in his business.

The record shows that the Coal Company was a subscriber. The employé's remedy under the Workmen's Compensation Act was against the insurer of this company, by whom he was employed, and not against the insurer of the Ice Company.

This well established principle of the common law which holds that an employé who is lent to a special employer as distingusihed from his general employer, and who assents to the change of employment, becomes the servant of the employer to whom he is lent, applies as well to cases arising under the Workmen's Compensation Act as to those at common law. The English Workmen's Compensation Act, 6 Edw. VII (1906) c. 58, § 13, in defining the word ‘employer’ enacts:

‘Where the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service, * * * the later shall, for the purposes of this act, be deemed to continue to be the employer of the workman whilst he is working for that other person.’

This statute was considered by the commission on compensation for industrial accidents, and in the ‘Report of the Commission on Compensation for Industrial Accidents' in its ‘Commentary on the Massachusetts Law’ (pages 46, 47, 48, 52, 53) reference is made to the English act and to the English decisions, showing that these were called to the attention of the Legislature. See also McNicol's Case, 215 Mass. 497, 499, 102 N. E. 697, L. R. A. 1916A, 306. We must assume from the refusal of the Legislature to adopt this particular section of the English statute that it intended the common law principle should prevail when the services of an employé were transferred from the employment of his general employer to that of a special employer

To decide, as we are now urged to do, that this rule has no ...