Langevin's Case

• Decision Date: 25 May 1950
• Citation: 91 N.E.2d 920,326 Mass. 43
• Parties: LANGEVIN'S CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

326 Mass. 43

91 N.E.2d 920

LANGEVIN'S CASE.

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1950

Argued April 4 1950.

John L Fitzpatrick, Boston, for Maryland Casualty Co.

No argument or brief for employee or Aetna Casualty Ins. Co.

Before QUA, C. J and LUMMUS, WILKINS, WILLIAMS and COUNIHAN, JJ. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

LUMMUS, Justice.

The question in this case is whether the employee, when injured, was an employee of a corporation called the Jere Healey Estate Inc., which was insured by Maryland Casualty Company, or of Cashman Brothers, a corporation, which was insured by Aetna Casualty and Surety Company. The single member and the reviewing board held that the employee was an employee of Jere Healey Estate, Inc., and ordered Maryland Casualty Company to pay compensation. The Superior Court entered a decree accordingly. The insurer, Maryland Casualty Company, appealed.

General Laws (Ter.Ed.) c. 152, § 1(4), as appearing in St. 1945, c. 369, defines 'employee' as 'every person in the service of another under any contract of hire, express or implied, oral or written,' with certain immaterial exceptions. If one at every moment, with respect to every detail, is bound to obedience and subject to direction and control, as distinguished from a right of inspection and insistence that the contract be performed or a right to designate the work to be done under the contract, then he is a servant or employee. McDermott's Case, 283 Mass. 74, 76, 186 N.E. 231. The evidence, which was not contradicted, may be summarized as follows. The employee had worked for the Jere Healey Estate, Inc., for fourteen years as a truck driver, delivering coal, and as a gardner. His foreman there, one Doyle, at times told him to take his truck to Cashman Brothers and to work for them. While working for Cashman Brothers, he reported nearly every morning to Doyle, and was told where he was to work that day. But the manager or a foreman for Cashman Brothers directed him in his work. He was hurt on July 19, 1948, while shoring up a floor in one Flynn's house, a job being done by Cashman Brothers. The employee and a foreman for Cashman Brothers were the only persons present. The employee was paid by the Jere Healey Estate, Inc., even when working for Cashman Brothers, and that estate charged Cashman Brothers for his work. The two corporations were closely connected in ownership, and worked in harmony.

The single member and the reviewing board found and ruled, Pequod Realty Corp. v. Jeffries, 314 Mass. 713, 718, 51 N.E.2d 308, that the relation of employer and employee existed between the Jere Healey Estate, Inc., and Langevin when he was hurt, and impliedly that it did not exist between Cashman Brothers and him. These findings were not warranted if the single member believed the uncontradicted evidence above described.

In Coughlan v. City of Cambridge, 166 Mass. 268, 277, 44 N.E. 218, 219, this court said, 'It is well settled that one who is the general servant of another may be lent or hired by his master to another, for some special service, so as to become, as to that service, the servant of such third party. 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 become subject to that of the party to whom he is lent or hired.' In accord are many cases, but only a few need be cited. Shepard v. Jacobs, 204 Mass. 110, 111, 112, 90 N.E. 392, 26 L.R.A., N.S., 442, 134 Am.St.Rep. 648; Berry v. New York Central & Hudson River Railroad Co., 202 Mass. 197, 202, 203, 88 N.E. 588. It is not decisive that he was paid by the one whose general servant he is. Hasty v. Sears, 157 Mass. 123, 124, 31 N.E. 759, 34 Am.St.Rep. 267. And it is not decisive whether the one to whom he is lent or hired actually exercises control, if he has the right to do so. Delory v. Blodgett, 185 Mass. 126, 128, 69 N.E. 1078, 64 L.R.A. 114, 102 Am.St.Rep. 328. The requirement that, to become the servant of the one to whom he is lent or hired, the servant must assent to the change of masters, is satisfied in the present case. Abbott v. Link-Belt Co., 324 Mass. 673, 677, 88 N.E.2d 551.

An exception to the foregoing general rule has been established in...