Paananen v. Rhodes

• Decision Date: 29 December 1972
• Parties: Andrew PAANANEN v. Willard A. RHODES.
• Court: Appeals Court of Massachusetts

Page 434

294 N.E.2d 434

1 Mass.App.Ct. 12

Andrew PAANANEN v. Willard A. RHODES.

Appeals Court of Massachusetts, Plymouth.

Argued Nov. 21, 1972.

Decided Dec. 29, 1972.

Charles R. Desmarais, New Bedford, for defendant.

Reubin M. Winokur, Plymouth (Lawrence I. Winokur, Plymouth, with him), for plaintiff.

Before ROSE, GOODMAN and ARMSTRONG, JJ.

GOODMAN, Justice.

In this action of tort the plaintiff, Andrew Paananen, sought to recover under a declaration alleging that on January 16, 1963, he was employed by the defendant to do carpentry work, logging and landscaping work at a girls camp in Hanson, massachusetts; that he was injured in the course of his employment; that this work had been determined to be hazardous employment by the Commissioner of the Department of Labor and Industries; and that the defendant was not insured under the Workmen's Compensation Act as required by law. The action is based on G.L. c. 152, § 66, as amended through St.1959, c. 478, under which proof of negligence is not required. See Opinion of the Justices, 309 Mass. 571, 598, 34 N.E.2d 527. ¹

The case was submitted to a jury after the defendant's motion for a directed verdict was denied; the jury returned a verdict for the plaintiff. The issue before us is the sufficiency of the evidence. We deal with only one aspect of the case.

The plaintiff alleged and had the burden of establishing (Ferris v. Grinnell, 353 Mass. 681, 683, 234 N.E.2d 281; Sullivan v. Quinlivan, 308 Mass. 339, 32 N.E.2d 209) that the Commissioner of Labor and Industries had determined the plaintiff's employment to be hazardous and therefore all 'employees therein (were) . . . required to be covered . . ..' G.L. c. 152, § 1(4)(c), as amended through St.1960, c. 306. For this purpose there was introduced in evidence a publication entitled, 'HAZARDOUS EMPLOYMENTS on all types of Construction Projects as determined by the Commissioner of the Department of Labor and Industries under the provisions of Paragraph (d), ² of Definition (4), of Section 1, of Chapter 152, of the General Laws, as amended by Chapter 680, of the Acts of 1956.' (Emphasis in original) This title is followed by a list which includes (among other occupations) 'Landscaper,' 'Carpenter and Joiner' and indented under the latter classification: 'Floor Layer Carpenter,' 'Shop & Mill Carpenter,' and 'Wharf & Bridge Carpenter.' Each page of the list has a two-line caption: 'Construction Projects' and, directly below, 'Hazardous Occupations.' The document bears a date, January 11, 1957, and a notation that the publication was approved by the State Purchasing Agent.

However, all that appears in the bill of exceptions as to the plaintiff's employment on the date when he was injured is his testimony that he was '. . . working as a landscaper and carpenter, was walking on a steep bank next to a pond where there were some bushes and trees and he was going to get them cleaned up . . ..' He slipped while cutting bushes. There is nothing in the bill of exceptions to indicate that the plaintiff's employment was in any way connected with a construction project as that term is ordinarily used. For this reason the defendant's exceptions must be sustained.

We are aware of Fisher v. Ciaramitaro, 345 Mass. 199, 210, 186 N.E.2d 443, in which the plaintiff proved the requirement of coverage and retained a verdict in an action under G.L. c. 152, § 66, on the basis of a document dated June 19, 1961, in which the Commissioner of Labor and Industries certified that the occupation of carpenter was on January 11, 1957 (the date on the document introduced in this case), 'determined to be hazardous employment,' and that such determination had 'been in effect since that date and . . . (was) still in effect.' In that case the plaintiff was a carpenter and was injured while fixing leaks on the roof of a house. The Commissioner's certification seems to have been accepted by both parties in lieu of the regulation which was apparently not in evidence.

In this case the publication introduced in evidence does not purport to be the exact determination as made by the Commissioner of Labor and Industries and filed with the Secretary of State as a regulation pursuant to G.L. c. 30A, § 5 (see G.L. c. 30A, § 1(5)). ³ The regulation itself is not before us, and we generally do not take judicial notice of administrative regulations. Building Inspector of Wayland v. Ellen M. Gifford Sheltering Home Corp., 344 Mass. 281, 285, 182 N.E.2d 503; Finlay v. Eastern Racing Ass'n, Inc., 308 Mass. 20, 26--27, 30 N.E.2d 859; Passanessi v. C. J. Maney Co., Inc., 340 Mass. 599, 604, 165 N.E.2d 590. But see Gentile, Petitioner,339 Mass. 319, 159 N.E.2d 86; Commonwealth v. Berney, 353 Mass. 571, 233 N.E.2d 739; Commonwealth v. Minicost Car Rental, Inc., 354 Mass. 746, 242 N.E.2d 411. We are particularly reluctant to do so in this case since the defendant has not had an opportunity to litigate the applicability of the regulation itself, the meaning of which 'might depend on the precise wording.' Passanessi v. C. J. Maney Co., inc., 340 Mass. 599, 604, 165 N.E.2d 590, 593.

In deciding whether in our discretion to order judgment for the defendant or grant a new trial (G.L. c. 231, § 122; ⁴ Vallavanti v. Armour & Co., 264 Mass. 337, 341--342, 162 N.E. 689) we have taken into consideration the history of the litigation and that...