Mendes v. Tin Kee Ng

• Decision Date: 28 May 1987
• Citation: 400 Mass. 131,507 N.E.2d 1048
• Parties: Diana C. MENDES v. TIN KEE NG, et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1048

507 N.E.2d 1048

400 Mass. 131

Diana C. MENDES v. TIN KEE NG, et al. ¹

Supreme Judicial Court of Massachusetts,

Hampshire.

Argued March 4, 1987.

Decided May 28, 1987.

Harry L. Miles, Northampton, for plaintiff.

John A. Lacaire (Timothy P. Wickstrom, Worcester, with him), for Chung Ming-Jung.

Mark D. Horan, Natick, for Tin Kee Ng.

Before HENNESSEY, C.J., and LIACOS, NOLAN, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

The plaintiff, Diana C. Mendes, commenced this action against the defendants, Tin Kee Ng and Coler, for personal injuries arising from the operation of Tin Kee Ng's motor vehicle. The defendants filed motions for summary judgment on the ground that the plaintiff, Tin Kee Ng, and Coler were coemployees who were arriving at their employer's premises for work when the accident that gave rise to this action occurred, and therefore the plaintiff's exclusive remedy against Tin Kee Ng and Coler lay under G.L. c. 152 (1984 ed.). (Workmen's Compensation Act). A Superior Court judge allowed the motions and entered summary judgment in their favor, ruling that the plaintiff's injuries arose out of and in the course of her employment. The plaintiff filed timely notices of appeal. We affirm.

At approximately 11 A.M., on July 2, 1982, the plaintiff was sitting on the steps of the Hunan Garden Restaurant, where she was scheduled to begin work. Coler, who possessed a learner's permit, drove into the restaurant parking lot in Tin Kee Ng's automobile, with Tin Kee Ng occupying the passenger seat of the vehicle. Coler and Tin Kee Ng were both employees of the restaurant and were on their way to work. As the automobile pulled toward a parking space in front of the steps to the restaurant, it accelerated up over the curb and onto the steps, injuring the plaintiff. The restaurant was operated by Hunan Garden, Inc., and the premises included the parking lot.

The plaintiff had begun work at the restaurant in February, 1981, under the supervision of Tin Kee Ng. She was paid $1.75 an hour, always in cash, and kept eighty-five per cent of all tips she earned. Neither taxes nor Social Security payments were deducted from her earnings. The plaintiff did not appear in the financial reports of Hunan Garden, Inc., until the quarter ending June 30, 1982.

The plaintiff did not give written notice of her intention to reserve her common law rights against her employer as provided by G.L. c. 152, § 24.

It is well established that "where compensation benefits are available under G.L. c. 152, an employee injured in the course of his employment by the negligence of a fellow employee may not recover from that fellow employee if he was also acting in the course of his employment." Saharceski v. Marcure, 373 Mass. 304, 306, 366 N.E.2d 1245 (1977).

1. Contract of hire. Before G.L. c. 152 becomes a bar to an action in tort against coemployees, the plaintiff and each defendant must be in the service of the common employer under a contract of hire. G.L. c. 152, § 1(4). L. Locke, Workmen's Compensation § 149, at 154 (1981). The plaintiff asserts that there exists a substantial question of fact as to whether she was ever informed that her employer was Hunan Garden, Inc., the corporation that manages the restaurant and under whose workmen's compensation insurance policy the defendants contend she is covered. ² The plaintiff also argues that Tin Kee Ng's failure to comply with tax and minimum wage laws raises a substantial question of fact as to the existence of a contract of hire between Hunan Garden, Inc., and the plaintiff and Coler.

The plaintiff conceded in her affidavit in opposition to the motions for summary judgment that the Hunan Garden Restaurant was owned and operated by Hunan Garden, Inc. The fact that she may not have been informed that her employer was a corporation is of no import. A contract of hire need not be shown by express agreement but may be implied from the circumstances. See Tracy v. Cambridge Junior College, 364 Mass. 367, 370-371, 304 N.E.2d 921 (1973).

The plaintiff argues that, because she was paid less than the minimum wage, her employment was illegal and was not within the coverage of the Workmen's Compensation Act. G.L. c. 152, § 1 (1984 ed. & 1985 Supp.). Such illegality would not deprive the plaintiff of the benefits of the act. Cf. Garnhum's Case, 348 Mass. 87, 89, 202 N.E.2d 255 (1964) (minor illegally employed held to be an "employee" with all rights incident to that status under Workmen's Compensation Act). We decline to adopt a rule as is urged upon us by the plaintiff that in effect would grant to the plaintiff the option of proceeding under the act or at common law. That option is not afforded to plaintiffs who are employed in violation of minimum age legislation, an area where the Legislature has also expressed a strong policy against illegal employment. See G.L. 152, § 28 (1984 ed.) (providing for double compensation and requiring that employer repay to the insurer extra compensation paid to employee); Garnhum's Case, supra. The plaintiff's estoppel argument against the defendant Tin Kee Ng also adds nothing additional to her claim of illegality.

2. Course of employment. An employee who is struck by an automobile at the conclusion of his work, in a parking lot which is part of his employer's premises, has been injured in the course of his employment. Connolly v. Miron, 353 Mass. 654, 233 N.E.2d 753 (1968). Horan's Case, 346 Mass. 128, 190 N.E.2d 399 (1963). See Locke, supra at § 219. Furthermore, "[a]n employee is covered for injuries sustained after arriving on the premises before work, or waiting to leave after work." Locke, supra at § 237. See Connolly v Miron, supra; Mahan's Case, 350 Mass. 777, 215 N.E.2d 762 (1966); Horan's Case, supra; Rogers' Case, 318 Mass. 308, 61 N.E.2d 341 (1945); Murphy v. Miettinen, 317 Mass. 633, 59 N.E.2d 252 (1945). Here, it is uncontested that all the parties arrived at the accident site expecting to begin work. There is also no dispute that the plaintiff was injured while sitting on the steps at the entrance to the restaurant. This area was subject to the management and control of her employer and as such was part of the employer's premises. Lee v. Pelletier, 20 Mass.App.Ct. 915, 916, 478 N.E.2d 158 (1985), and cases cited. Cf. Comeau v. Hebert, 352 Mass. 634, 227 N.E.2d 475 (1967) (workmen's compensation bar did not apply because there was no evidence...