Pemberton v. Boas

• Citation: 433 N.E.2d 490,13 Mass.App.Ct. 1015
• Parties: Warren L. PEMBERTON v. Roger W. BOAS et al.
• Decision Date: 06 April 1982
• Court: Appeals Court of Massachusetts

Page 490

433 N.E.2d 490

13 Mass.App.Ct. 1015

Warren L. PEMBERTON v. Roger W. BOAS et al.

Appeals Court of Massachusetts, Hampden.

Argued Feb. 16, 1982.

Decided April 6, 1982.

Robert A. Gelinas, Springfield (Caroline W. Spangenberg, Springfield, with him), for defendants.

John F. Keenan, Worcester, for plaintiff.

Before ARMSTRONG, GREANEY and SMITH, JJ.

RESCRIPT.

The plaintiff, an employee of Palmer Paving Corp. (Palmer), brought this action to recover damages for injuries he sustained in an accident at a construction site on October 25, 1978, allegedly caused by the negligence of the defendants Roger W. Boas (Boas) and Boas' employer, Ben Moccio & Sons Excavating Co. (Moccio). At the trial in the Superior Court, the issues were submitted to the jury in the form of five special questions. Mass.R.Civ.P. 49(a), 365 Mass. 812-813 (1974). On the basis of the jury's answers, the judge entered judgment against both defendants on the verdict in the amount of $1,128,000. Thereafter, the defendants seasonably moved for a new trial or for a remittitur of the damages. Mass.R.Civ.P. 59(a), 365 Mass. 827 (1974). The judge ruled that the motion for new trial would be denied if the plaintiff accepted a remittitur of $398,000. The plaintiff accepted the remittitur, and an amended judgment was entered in the amount of $730,000. The defendants have appealed from that judgment and from the order denying their motion for a new trial. We affirm.

1. The defendants claim error in the denial of their motion for a directed verdict on the ground that the evidence required a finding that Boas, the driver of a truck owned by Moccio, was, at the time of the accident, a special employee of Palmer. In light of the cases dealing with lent servants, we are of the opinion that the motion was properly denied. See Coughlan v. Cambridge, 166 Mass. 268, 277, 44 N.E. 218 (1896); Centrello's Case, 232 Mass. 456, 457, 122 N.E. 560 (1919); Wall's Case, 293 Mass. 93, 94, 199 N.E. 326 (1935); Galloway's Case, 354 Mass. 427, 430, 237 N.E.2d 663 (1968); Georgopoulos v. Clarendon Constr. & Trucking Co., 360 Mass. 865, 866, 277 N.E.2d 309 (1971). Cf. Ramsey's Case, 5 Mass.App. 199, 202-203, 360 N.E.2d 911 (1977). The question of the existence of a special employment relationship is "usually a question of fact." Locke, Workmen's Compensation § 151, at 159, and cases cited at n.91 (2d ed. 1981). Under applicable standards (see H. P. Hood & Sons v. Ford Motor Co., 370 Mass. 69, 71-72, 345 N.E.2d 683 (1976); Boyle v. Wenk, 378 Mass. 592, 593, 392 N.E.2d 1053 (1979) ), there was sufficient evidence on the issue of Moccio's control over Boas to present a jury question. Without stating all the evidence in detail, we note that the jury could properly have found that Boas was hired and paid by Moccio; that he reported each morning to Moccio's office for work assignments; that he returned each night with Moccio's truck to Moccio's yard; and that he was eventually discharged by Moccio. They also could have found that the compacting work which Boas was performing for Palmer at the jobsite was essentially a routine procedure which required no special instructions or directions from Palmer's foreman; that Boas' contacts were principally with the plaintiff, who was not a foreman but a laborer for Palmer; that Boas had no contacts with Palmer's foreman which involved substantive supervision or direction over his work; and that Moccio's vice-president was on the jobsite, supervising his company's trucks and heavy construction equipment, about ten or fifteen times each day as a "working foreman." There was also evidence from which the jury could have found that Boas had not consented to be subject to Palmer's control. Compare Berry v. New York Cent. & H. R. R. R., 202 Mass. 197, 202-203, 88 N.E. 588 (1909). In addition, the plaintiff had the benefit of the rule that drivers of trucks "when lent with the vehicles presumptively remain the servants of the general employer and are subject to his control in so far as pertains to the care, management and preservation of the property." Mahoney v. New York, N. H. & H. R. R., 240 Mass. 8, 10-11, 132 N.E. 384 (1921). See 1C Larson, Workmen's Compensation Law § 48.30, at 8-381-8-394 (1980). That conclusion is supported here by the presence of several of the factors deemed relevant to the general employer's retention of control in § 220 of the Restatement (Second) of Agency (1958), and this case could be found analogous to the situations discussed in illustrations 1 and 5 of § 227 of the Restatement, in which the general employer retains control. Contrary evidence stressed by the defendants brought the case within the rule that "(w)here more than one conclusion is permissible the question is for the jury." Georgopoulos v. Clarendon Constr. and Trucking Co., supra. See Marsh v. Beraldi, 260 Mass. 225, 231, 157 N.E. 347 (1927).

2. The defendants argue that the judge failed to make clear, both in his instructions and in a special question posed to the jury, that the special employee issue turned on whether Palmer had a right of control over Boas, regardless of whether Palmer actually exercised that control. See Galloway's Case, supra, quoting from Langevin's Case, 326 Mass. 43, 47-48, 91 N.E.2d 920 (1950). We disagree. The judge instructed the jury that in order to be found a special employee, Boas must have been "subject to ... Palmer's direction and control." This language was subsequently repeated three separate times in various formulations. The judge then summed up the issue by instructing that "(i)n order to find that ... Boas was a lent ... employee, you must find a right to control Boas existing in Palmer ..." (emphasis supplied). Finally the judge went on to instruct that the presumption that Boas remained an employee of Moccio (see part 1, supra ) would be overcome if the jury found that Moccio had "surrendered its right of control" to Palmer. The language of this last instruction was identical to that of the special question requested by the defendant. Although the special question ultimately posed to the jury asked only whether Boas was "under the control" of Palmer, we think the proper meaning of that question was made clear in the context of the instructions quoted. The judge did not err in declining to pose the special question in the precise language requested by the defendants. See Fialkow v. DeVoe Motors, Inc., 359 Mass. 569, 575, 270 N.E.2d 798 (1971). The same is true of the defendant's requested instruction which was covered in substance by the instructions given.

3. The judge instructed the jury that if they found Boas to be a special employee of Palmer they should find for Boas, but that "as a matter of law this does not necessarily apply to ... Moccio ... providing ... there was negligence on the part of Mr. Boas. His status as a special employee ... would not affect the potential liability of ... Moccio." A proper objection was taken to the instruction. The defendants agree with the instruction as to Boas, contending that a finding that Boas was a special employee of Palmer would bar an action against him by the plaintiff, also an employee of Palmer, because they both would have been "said insured person's employees" within the meaning of G.L. c. 152, § 15, as amended by St.1971, c. 941, § 1. The defendants disagree with the instruction as to Moccio, however, arguing that upon such a finding, Moccio would no longer be liable either because the principle of respondeat superior would no longer apply to it, or because § 15 would operate to protect Moccio. We need not decide whether either of these contentions is correct. The questioned instruction was only to be applied upon a finding that Boas was a special employee, and the jury made a threshold finding, in answer to the first special question, that he was not. In view of that finding, made after proper instructions on the special employee issue (see part 2, supra ), any error in the instruction was rendered harmless. See Donoghue v. Holyoke Transcript-Telegram Publishing Co., 9 Mass.App. 899, 402 N.E.2d 1114 (1980); Bechtel v. Paul Clark, Inc., --- Mass.App. ---, --- n.5, Mass.App.Ct.Adv.Sh. (1980) 1983, 1993 n.5, 412 N.E.2d 143.

4. The defendants correctly point out that plaintiff's closing argument was improper in its suggestions that the special employee defense was a "technicality," a "strange rule of law ... and maybe ... unfair," and a "red...