Roby v. Boston & M.R.R.

• Citation: 149 N.E.2d 661,337 Mass. 369
• Parties: Edward W. ROBY v. BOSTON AND MAINE RAILROAD.
• Decision Date: 11 April 1958
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 661

149 N.E.2d 661

337 Mass. 369

Edward W. ROBY v. BOSTON AND MAINE RAILROAD.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 5, 1958.

Decided April 11, 1958.

Joseph Schneider, Boston (Norman M. Goldberg, Boston, with him), for plaintiff.

Arthur L. Brown, Boston (Eugene J. Ratto, Boston, with him), for defendant.

Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.

WHITTEMORE, Justice.

The plaintiff, a Pullman porter, brought an action in tort against the defendant to recover for personal injuries received on October 15, 1951, as a result of a collision of railroad cars in one of which the plaintiff was working. Following verdicts for the plaintiff under both counts, the judge entered a verdict for the defendant under count 1 pursuant to leave reserved. The case is here on a report which presents the correctness of the entry of the verdict for the defendant under count 1 and denial of its motion for entry of a verdict in its favor under count 2.

Count 1 stated a common-law cause of action. Count 2 is for damages under the Federal Employers' Liability Act, U.S.C. (1952 ed.) Title 45, § 51 [45 U.S.C.A. § 51]. The report states facts admitted to be true, as follows: The defendant was negligent; the plaintiff was not contributorily negligent; the plaintiff at the time of the accident was engaged in interstate commerce in the immediate employ of the Pullman Company; both the defendant and the Pullman Company were self-insurers under the Massachusetts Workmen's Compensation Act (G.L. [Ter.Ed] c. 152, as amended); the plaintiff received compensation payments from the Pullman Company as a result of the accident; the car in which the plaintiff was working was either owned by or leased to the Pullman Company.

The reported evidence, taken most favorably for the plaintiff, would sustain findings as follows: The defendant's business included, as an essential part, the transportation of passengers in coaches, parlor cars, sleeping cars, and dining and club cars. 'Pullman service' in all such cars, save coaches, is an essential part of railroad passenger service. The plaintiff's duties were to serve the passengers. He worked 'under the train conductor' who was the 'boss of the train' and when no conductor was available to collect tickets he would do so. The uniform service contract between the Pullman Company and the defendant in effect at the time of the accident provides, 'Pullman shall provide suitable Pullman employes to perform the usual seeping car and other services for passengers in cars operated under this contract. Such employes while on duty shall be subject to the rules of the Railroad governing its own employes, so far as such rules may be applicable. Pullman shall perform such duties as may be required by law in assisting passengers while entering and leaving cars operated under this contract at stations and on arrival at destination. * * *'

1. It was error not to enter a verdict for the defendant under count 2. The plaintiff for purposes of the Federal Employers' Liability Act was an employee of the Pullman Company and not an employee of the defendant. This is established by Robinson v. Baltimore & Ohio Railroad, 237 U.S. 84, 93-94, 35 S.Ct. 491, 494, 59 L.Ed. 849. The court there noted facts, like those stressed before us, that the employee was in certain aspects in the control of the defendant and would pick up tickets at late hours when the conductor was not about. The court, after setting forth that the Pullman Company hired and discharged the porters, paid them, defined their duties and directed and supervised them, said that '* * * Congress used the words 'employee' and 'employed' * * * in their natural sense * * *. It was well known that there were on interstate trains persons engaged in various services for other masters. Congress * * * did not use any appropriate expression which could be taken to indicate a purpose to include such persons among those to whom the railroad company was to be liable under the act.' See Lindsay v. Chicago, Burlington & Quincy Railroad, 7 Cir., 226 F. 23, 25, certiorari denied 241 U.S. 678, 36 S.Ct. 727, 60 L.Ed. 1233; Wilson v. Nashville, Chattanooga & St. Louis Railway, 16 Tenn.App. 695, 65 S.W.2d 637; Annotation, 30 A.L.R.2d 517, 527. Accord, as to refrigerator car employees, Gaulden v. Southern Pacific Co., D.C., 78 F.Supp. 651, 656-657; Moleton v. Union Pacific Railroad, 118 Utah 107, 219 P.2d 1080. Accord as to express company messenger Wells Fargo Co. v. Taylor, 254 U.S. 175, 41 S.Ct. 93, 65 L.Ed. 205. Compare Pennsylvania Co. v. Roy, 102 U.S. 451, 26 L.Ed. 141, and, for a case under the Federal act where liability was fixed on the indirect employer under the borrowed servant doctrine, both employers being carriers and the employee a freight train conductor, Linstead v. Chesapeake & Ohio Railway, 276 U.S. 28, 488 S.Ct. 241, 72 L.Ed. 453. Compare also Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480; Messina v. Richard Baird Co., Mass., 147 N.E.2d 805, and cases cited.

The amendment effective August 11, 1939 (U.S.C. [1952 ed.] Title 45, § 51 [45 U.S.C.A. § 51]), of the Federal act did not change the law in this respect. It broadened the act in its application to the carrier's employees; it did not expand the latter category. Reed v. Pennsylvania Railroad, 351 U.S. 502, 76 S.Ct. 958, 100 L.Ed. 1366; Latsko v. National Carloading Corp., 6 Cir., 192 F.2d 905, 909. Report of Senate Judiciary Committee to accompany Senate Judiciary Committee Report No. 661, 76th Congress, first session. The committee report shows that a proposal to broaden the act to include express, freight forwarding and sleeping car companies was expressly rejected.

2. There was no error in entering a verdict for the defendant under count 1.

The plaintiff claims under G.L. (Ter.Ed.) c. 152, § 15, which gives the plaintiff certain rights to enforce liability '[w]here the injury for which compensation is payable was caused under circumstances creating a legal liability in some person other than the insured to pay damages in respect thereof * * *.'

Apart from the effect of the Federal Employers' Liability Act the plaintiff could not recover under c. 152, § 15. Cozzo v. Atlantic Refining Co., 299 Mass. 260, 262-263, 12 N.E.2d 744, and cases cited; Clark v. M. W. Leahy Co. Inc., 300 Mass. 565, 16 N.E.2d 57. In the Cozzo case we held, in accordance with earlier cases, that the plaintiff, an employee of an insured independent contractor of the defendant who had not reserved his rights under c. 152, § 24, might not sue the defendant at common law under § 15 for negligence, saying (299 Mass. at page 263, 12 N.E.2d at page 747): 'This protection rests on the ground that under * * * c. 152, § 18, ¹ the insurer of the general contractor or employer is required to pay compensation to workmen immediately employed by the independent contractor. Within the meaning of the workmen's compensation law such workmen are 'employees' of the general contractor or employer * * * [who is] the 'insured' and not 'some person other than the insured' * * * under * * * § 15, even though the independent contractor also is insured.' In the Clark decision, supra (300 Mass. at page 568, 16 N.E.2d at page 58), we said that §§ 15, 18 and 24 'in combination have resulted in the * * * rule * * * [that in the 'shadow' of the general contractor or 'common employer' and in the absence of notice under § 24] a cause of action for negligence causing a compensable personal injury cannot grow.'

We turn to the effect of the Federal statute. The plaintiff relies on the plain proposition that if the plaintiff's work had been done by direct employees of the defendant, the defendant, because of the Federal statute, would not, under c. 152, § 18, 'be liable to pay compensation under this chapter to' such employees. This follows from the settled rule that the Federal Employers' Liability Act provides the exclusive remedy for all employees within its terms and that it displaces all State laws, even as to compensation without fault for which it does not provide. New York Central Railroad v. Winfield, 244 U.S. 147, 37 S.Ct. 546, 61 L.Ed. 1045. At most, it appears, a State act, by appropriate language, may afford a permissive tribunal to which the parties, if all agree and...