Meehan v. Gordon
| Decision Date | 29 October 1940 |
| Citation | 29 N.E.2d 759,307 Mass. 59 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | JAMES J. MEEHAN v. HERBERT GORDON & another. |
September 17, 1940.
Present: FIELD, C.
J., DONAHUE, QUA COX, & RONAN, JJ.
Workmen's Compensation Act, Action by insurer against negligent third person, Employee of independent contractor, To whom act applies. Negligence, Of contractor, Invited person.
A clerk of the owner of premises on which a contractor was installing a vault did not become an employee of the contractor within the workmen's compensation act by opening the door of the vault with the combination at the request and for the accommodation of the contractor.
An insurer which had paid workmen's compensation to an injured employee of the insured was not precluded by the provisions of Section 18 of G. L.
(Ter. Ed.) c. 152 from maintaining an action under Section 15 against a contractor whose negligence caused the injuries while the contractor was doing work for the insured, where such work was "merely ancillary and incidental to" and not "part of or process in" the insured's business and the employee's only connection with the work was in the performance merely of an act of cooperation and accommodation at the direction of the insured's manager in response to a request of the contractor.
Alterations by a contractor of a building of a gas company, insured under the workmen's compensation act, including installation of a vault and a door, were "merely ancillary and incidental to" and not "part of or process in" its business and were within the express exception to application of Section 18 of the act.
A clerk of an owner of premises on which a contractor was installing a vault requested by the contractor to open the door of the vault with the combination as a matter of accommodation, was an invited person to whom the contractor owed a duty of due care.
A finding of negligence of a contractor installing a vault toward a clerk of the owner of the premises whom the contractor had asked to open the door of the vault with the combination was warranted by evidence that the door and its frame, which had not been affixed to the wall of the vault, were standing upright and unbraced, that they tipped over onto the clerk when he opened the door, and that the contractor did not warn the clerk of the danger of their tipping over which was known to the contractor but not to the clerk and was not obvious.
TORT. Writ in the Superior Court dated June 2, 1938. The action was tried before Burns, J., and a verdict was returned for the plaintiff in the sum of $8,748.63. The defendants alleged exceptions.
The case was submitted on briefs. M. B. Warner, for the defendants.
F. M. Myers, for the plaintiff.
This action is brought to enforce the alleged liability of the defendants for personal injuries suffered by Meehan on November 12 1937, when the heavy door and frame of a brick vault fell upon him on premises which were being altered for the Northern Berkshire Gas Company.
Meehan was in the general employment of the gas company. He testified that he was chief clerk. He had not reserved his common law rights and, as we understand the record, has received compensation for his injuries under the workmen's compensation law from the gas company's insurer, for whose benefit this action is brought. G. L. (Ter. Ed.) c. 152, Section 15. The defendants were engaged in the general contracting business. They had the contract with the gas company to make the alterations, including the installation of the vault and the door. They also carried compensation insurance. The issue before us is whether the evidence will support the verdict for the plaintiff. The defendants contend that the provisions of G. L. (Ter. Ed.) c. 152, Section 18, have the effect of preventing recovery in this action, and also that quite aside from the workmen's compensation law the evidence is inadequate to establish a cause of action.
Section 18 is not a bar to this action. By virtue of that section an employee of a general contractor who has a contract with an insured owner, or an employee of a subcontractor under the general contractor, becomes entitled to compensation from the insurer of the owner for whom the work is being performed, if the employee is injured while performing work included within the general contract; and the insurer in turn becomes entitled to statutory subrogation. But it is held that this right of subrogation arises only against persons "other than the insured," Section 15, and that as a contractor, subcontractor or employee engaged in the "common employment" is covered by the insurance of the "common employer," each is a person insured and is not a person "other than the insured" and cannot be sued at law for a compensable injury. This theory is fully explained in Clark v. M. W Leahy Co. Inc. 300 Mass. 565 , with citation of pertinent cases. See also Bresnahan v. Barre, 286 Mass. 593 , 597; Dresser v. New Hampshire Structural Steel Co. 296 Mass. 97; Cozzo v. Atlantic Refining Co. 299 Mass. 260; Pimental v. John E. Cox Co. Inc. 299 Mass. 579; Carlson v. Dowgielewicz, 304 Mass. 560 . This rule applies in cases to which Section 18 is applicable. But Section 18 does not apply to this case. That section becomes operative upon the existence of a "contract, written or oral" to perform work for an insured person and upon an injury to some one employed by a contractor or subcontractor to execute part of that work, which injury arises out of and in the course of that employment. Pimental v. John E. Cox Co. Inc. 299 Mass. 579 , 582, 583. Here Meehan was employed by the "insured person," the gas company, and not by any contractor who had agreed to do work for the gas company. His only connection with the job of making the alterations arose from the circumstance that one of the defendants had asked the manager of the gas company if he would have his man come in and open the vault door with the "combination," which was known to the gas company, and that Meehan was injured while so opening the door at the request of the gas company's manager. Even if it was necessary that the door be unlocked before the door and...
To continue reading
Request your trial
-
In re Meehan
...medical services, brought an action at law against a third person whose negligence caused the injuries to the employee, Meehan v. Gordon, 307 Mass. 59, 29 N.E.2d 759, and recovered a judgment in a sum greater than that paid by it for said compensation and medical services. The insurer appea......
-
Meehan's Case
...him with medical services, brought an action at law against a third person whose negligence caused the injuries to the employee, Meehan v. Gordon, 307 Mass. 59 , recovered a judgment in a sum greater than that paid by it for said compensation and medical services. The insurer appealed from ......
-
Adams v. George Lawley & Son Corp.
... ... that burden. Pickwick v. McCauliff, 193 Mass. 70 ... Silver v. Cushner, 300 Mass. 583 ... Meehan v ... Gordon, 307 Mass. 59 ... Zawacki v. Finn, 307 ... Mass. 86 ... The plaintiff was ... engaged in repairing a boat of one of ... ...
-
Abbott v. Link-Belt Co.
...in" it. The work being done was not a minor affair, but was such as the defendant was regularly employed to do. The case of Meehan v. Gordon, 307 Mass. 59 , is like present case on the facts. See also Caton v. Winslow Bros. & Smith Co. 309 Mass. 150 , 154; Cannon v. Crowley, 318 Mass. 373 ,......