McPadden v. W. J. Halloran Co.

• Decision Date: 05 December 1958
• Citation: 338 Mass. 189,154 N.E.2d 582
• Parties: James J. McPADDEN v. W. J. HALLORAN COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 582

154 N.E.2d 582

338 Mass. 189

James J. McPADDEN v. W. J. HALLORAN COMPANY.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 23, 1958.

Decided Dec. 5, 1958.

Matthew R. McCann, Worcester, Eugene N. Rosenberg, Worcester, with him, for plaintiff.

Bertram A. Sugarman, Boston, for defendant.

Before WILKINS, C. J., and WILLIAMS, COUNIHAN, WHITTEMORE and CUTTER, JJ.

WHITTEMORE, Justice.

This action of tort was brought in the right of the plaintiff, an employee of Stafford Iron Works, Inc. (Stafford), for the benefit of the plaintiff and of Stafford's insurer under the workmen's compensation act (G.L. c. 152) against a contractor of Stafford which, it could have been found, negligently injured the plaintiff. The plaintiff excepted to the action of the trial judge in entering a verdict for the defendant under leave reserved.

The case involves application of the doctrine of 'common employment,' restated in Clark v. M. W. Leahy Co., Inc., 300 Mass. 565, 567-570, 16 N.E.2d 57, 58, which implements the purpose of the workmen's compensation act 'to sweep within its provisions all claims for compensation flowing from personal injuries arising out of and in the course of employment by a common employer insured under the act * * *' (Bresnahan v. Barre, 286 Mass. 593, 597, 190 N.E. 815, 817) and requires that workmen on the same job stand on an equal footing in respect to injuries caused by anyone engaged in the common activity. Bindbeutel v. L. D. Willcutt & Sons Co., 244 Mass. 195, 198, 138 N.E. 239. Catalano v. George F. Watts Corp., 255 Mass. 605, 606, 152 N.E. 46.

We hold that, for reasons to be stated, and notwithstanding the jury's special findings to the contrary, the evidence required the ruling which the trial judge in effect made that the defendant's work was 'part of or process in, the trade or business carried on by the insured' and was not 'merely ancillary and incidental' thereto (G.L. c. 152, § 18) and that, therefore, the defendant was engaged in 'common employment' with the insured. As such the defendant 'cannot be a 'person other than the insured' within section 15 [of c. 152], and the injured employee [not having reserved common law rights] has no option to sue him at common law.' Clark v. M. W. Leahy Co., Inc., 300 Mass. 565, 568, 16 N.E.2d 57, 58.

The jury could have found facts as follows:

The plaintiff was injured on November 27, 1953, while working in Shrewsbury as a steel worker for Stafford. Stafford had sold and agreed to install the steel members, or beams, for a steel frame 'rising stage' in a restaurant building under construction. In accordance with its practice it fabricated the steel members at its plant. Fabrication included cutting, punching rivet holes and painting. Stafford hired from the defendant (Halloran) a mobile truck crane and two men to move the fabricated members from Stafford's truck at the construction site into the building. The plaintiff was hit when the boom of the crane collapsed while lifting from the truck steel members which were too heavy for the boom in the position in which it had been placed.

Stafford was engaged primarily in the fabrication of steel and miscellaneous iron work. The bulk of Stafford's production of fabricated steel was delivered F.O.B. the job site, and it erected only about six per cent of all the steel it fabricated. Stafford used a mobile truck crane on about twenty-five per cent of all the steel it erected. It did not own such a crane and did not have any personnel qualified to operate one. It invariable used a mobile truck crane in erecting heavy structural steel, such as that being placed in the building in Shrewsbury. When ordering a crane, Stafford would specify the boom length but give no other specifications. It customarily paid an hourly rate for the crane, operator, and oiler and received a bill at the end of the month for a certain number of crane hours. The crane personnel were paid by the crane company. Crane rental in 1953 represented about one per cent of Stafford's operating costs.

At the Shrewsbury job, a Stafford truck brought the steel members to the site. A Stafford foreman supervised the operation; one of his duties was to see that the crane was securely set in place. Two Stafford employees working in Stafford's truck fixed the crane hooks suspended from the cables on the boom to the steel members on the truck. Stafford employees signalled for all movements of the crane but Halloran employees were solely responsible for its operation upon receipt of signal. In order to free the truck promptly, the crane first delivered the steel members to the basement floor where Stafford employees were stationed to disengage the hooks. Stafford employees would later affix the hook to the member to be moved, signal the crane to lift each member into place in the frame, secure the member in place temporarily by a few bolts and disengage the hook.

The plaintiff contends that our cases show that, on these facts, the relationship of the defendant to Stafford's work was for the jury. We disagree. In cases where the facts do not show that the work done 'plainly is a part of' the principal contractor's work (Cannon v. Crowley 318 Mass. 373, 376, 61 N.E.2d 662, 665) or plainly is not, there is a jury question. See such cases as Comerford's Case, 229 Mass. 573, 18 N.E. 900; Cozzo v. Atlantic Ref. Co., 299 Mass. 260, 12 N.E.2d 744; Alberts v. Brockelman Bros., Inc., 312 Mass. 486, 45 N.E.2d 392; Dubois v. Soule Mill, 323 Mass. 472, 82 N.E.2d 886; Abbott v. Link-Belt Co., 324 Mass. 673, 88 N.E.2d 551; DeMartin v. New York, N. H. & H. R. Co., 1957, 336 Mass. 261, 143 N.E.2d 542. But this case, we think, stands with other decisions where the facts required a finding of 'common employment' and in which we have ruled accordingly. Willard v. Bancroft Realty Co., 262 Mass. 133, 159 N.E. 511. Carlson v. Dowgielewicz, 304 Mass. 560, 24 N.E.2d 538. Roby v. Boston & Maine R. R., 337 Mass. ----, 149 N.E.2d 661. See also Whitehouse v. Cities Serv. Oil Co., 315 Mass. 108, 52 N.E.2d 414, and Bencivengo v. Walter C. Benson Co., Inc., 319 Mass. 110, 64 N.E.2d 918, where as a matter of law we held that the work was outside the 'common employment.' This case is similar in an important aspect to the Carlson case, supra, where the plaintiff, an employee of the insured, was injured by a contractor in the course of delivery by him of cement aggregate to the road construction project of the insured. In the Bencivengo case, supra, we said (319 Mass. at pages 114-115, 64 N.E.2d at page 920) that reference to the original record in the Carlson case showed...