Pimental v. John E. Cox Co.
| Decision Date | 02 March 1938 |
| Citation | 13 N.E.2d 441,299 Mass. 579 |
| Parties | MANUEL PIMENTAL v. JOHN E. COX CO., INC. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
October 26, 1937.
Present: FIELD DONAHUE, LUMMUS, QUA, & DOLAN, JJ.
Workmen's Compensation Act, Liability of one person engaged in common employment for injury to another, Action by insurer against negligent third person. Words, "Some person other than the insured," "Common job."
An independent contractor, insured under the workmen's compensation act and performing part of the work of erecting a building, was a "person other than the insured" and not immune to an action at law under G. L. (Ter.
Ed.) c. 152 Sections 15, 18, brought by the insurer of a second independent contractor on the job in the name of an employee of its insured injured through the negligence of the first contractor where the common hirer of the contractors was not insured with respect to such construction work.
TORT. Writ in the Superior Court dated January 22, 1935. The action was tried before Walsh, J., and was submitted to this court on briefs.
H. E. Clarkin & J.
T. Farrell, for the plaintiff.
Buffinton & R. A. Bogle, for the defendant.
This is an action of tort brought by an employee of William J. Dorley and Company for damages for personal injuries alleged to have been sustained by the plaintiff as a result of the negligence of an employee of the defendant. The case was tried by a judge and jury, as hereinafter narrated. A motion by the defendant for a directed verdict was denied. The jury returned a verdict for the plaintiff in the amount of $1,000. Before this verdict was recorded the judge, with the consent of the jury reserved leave to enter a verdict for the defendant. On motion of the defendant such a verdict was entered subject to the plaintiff's exception. The judge reported the case upon the terms that if his "action in ordering the entry of a verdict for the defendant was correct, judgment is to be entered on the verdict, otherwise judgment is to be entered for the plaintiff in the sum of $1,000 plus interest from the date of the verdict."
There was evidence warranting a finding "that the plaintiff was in the exercise of due care and was injured by reason of the negligence of an agent or servant of the defendant acting within the scope of his employment, and that he did not assume the risk of the happening of such an accident as that which caused his injury." The defendant does not contend that the verdict returned by the jury was vitiated by error or that the plaintiff is not entitled to judgment thereon unless, on the facts agreed upon by the parties, the plaintiff is precluded by the provisions of the workmen's compensation law, G. L. (Ter. Ed.) c. 152, from maintaining this action against the defendant.
After the taking of the oral evidence the parties filed a "stipulation" which was received by the judge but, with the consent of the parties, was not read to the jury. This stipulation is as follows: "In 1934 Titus J. Cook and William A. Cook, doing business under the firm name of Cook Bros., 231 Bedford Street, Fall River, Massachusetts, which firm was exclusively engaged in a general trucking and freight forwarding business, decided to erect a freight terminal and garage on Fourteenth Street in Fall River. The said Titus J. Cook and William A. Cook engaged one Deardon, an architect, to draw plans and specifications for said building, to prepare the contracts for the different types of construction and to direct, check and supervise the work of the several contractors, which he did. Contracts were entered into by said Cook Bros. with one William J. Dorley and Company for the mason work, John E. Cox Co. for the steel and iron work, Walter E. Sullivan for the plumbing and heating, and one Aitken for the carpenter work, painting and electrical work on the contemplated building. These four contracts were in force on May 14, 1934, at the time of the accident.
All four contractors carried workmen's compensation insurance as prescribed in chapter 152 of the General Laws and as required under the terms of their respective contracts with Cook Bros. Cook Brothers also carried workmen's compensation insurance as prescribed by said chapter 152 covering their freight forwarding and expressing business. All persons engaged in the construction of the freight terminal in any capacity were employees of one of these four contractors except said Deardon, the architect. The plaintiff in this case, an employee of William Dorley & Company, was injured on May 14, 1934, while working on the premises and on the job of building this freight terminal and was paid compensation for his injuries by the Ocean Accident and Guarantee Corporation, insurer of William Dorley & Company by whom he was employed. The plaintiff had not given notice of reservation of his common law rights under chapter 152 of the General Laws to William Dorley & Company, by whom he was employed, to the defendant, to Cook Bros. or to any other person. This suit is duly authorized by the said Ocean Accident and Guarantee Corporation, insurer of William Dorley & Company, which has paid compensation under the pertinent provisions of General Laws, chapter 152, to the plaintiff, Manuel Pimental.
"
The facts set forth in this stipulation did not justify the order of the judge that a verdict be entered for the defendant.
The plaintiff, an employee of William J. Dorley and Company, having elected to proceed under the workmen's compensation law, by force of G. L. (Ter. Ed.) c. 152, Section 15, cannot maintain an action at law for damages against this defendant for the personal injuries sustained by him arising out of and in the course of his employment, for which he was paid compensation under the workmen's compensation law. McDonald v. Employers' Liability Assurance Corp. Ltd. 288 Mass. 170 , 174. But, under the same section, the insurer of William J. Dorley and Company, having paid compensation, may enforce in an action at law brought in the name of the plaintiff, or in its own name, the liability of the defendant, if any, for damages to the plaintiff. The present action was brought for that purpose by the insurer in the name of the plaintiff. See Becker v. Eastern Massachusetts Street Railway, 279 Mass. 435 , 441-444. But the action can be maintained only if the injury for which the plaintiff was paid compensation was, in the language of G. L. (Ter. Ed.) c. 152, Section 15, "caused under circumstances creating a legal liability" in the defendant, as "some person other than the insured."
The defendant's sole contention is that it was not "some person other than the insured" within the meaning of G. L. (Ter. Ed.) c. 152, Section 15, but that it is entitled to the protection against an action at law for damages to which an "insured" is entitled. This contention cannot be sustained.
If Cook Brothers had been an "insured person" under the workmen's compensation law with respect to the erection of the freight terminal and garage, neither the plaintiff, an employee of William J. Dorley and Company, an independent contractor, engaged upon this job under contract with Cook Brothers, nor the insurer of this independent contractor, in the name of the plaintiff, could have maintained this action against the defendant, another independent contractor engaged upon the same job. Dresser v. New Hampshire Structural Steel Co. 296 Mass. 97 . This result follows from the purpose of the workmen's compensation law, stated in Bresnahan v. Barre, 286 Mass. 593 , 597, and restated in Dresser v. New Hampshire Structural Steel Co. 296 Mass. 97, 100-101, and in Caira v Caira, 296 Mass. 448 , 449-450, "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, and not to preserve for the benefit of the insurer or of the insurer and those injured liabilities between those engaged in the common employment which but for the act would exist at common law." Within this...
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