Sayers v. Ralston Tree Service, Inc.

• Decision Date: 29 March 1963
• Parties: Robert A. SAYERS v. RALSTON TREE SERVICE, INC.
• Court: New Hampshire Supreme Court

Page 480

189 A.2d 480

104 N.H. 433

Robert A. SAYERS v. RALSTON TREE SERVICE, INC.

Supreme Court of New Hampshire.

Argued Feb. 5, 1963.

Decided March 29, 1963.

Charles F. Hartnett, Dover, for plaintiff.

Burns, Bryant & Hinchey and Joseph P. Nadeau, Dover, for defendant.

DUNCAN, Justice.

This is a common-law action brought against a third party tort-feasor to recover damages for personal injury suffered by an employee of the City of Haverhill in consequence of which the City paid the employee workmen's compensation pursuant to the Massachusetts Workmen's Compensation Law. Mass.G.L., c. 152. Section 15 of the statute provides in part as follows: 'Where 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, the employee may at his option proceed either at law against that person to recover damages or against the insurer for compensation under this chapter, but, except as hereinafter provided, not against both. If compensation be paid under this chapter, the insurer may enforce, in the name of the employee in its own name and for its own benefit, the liability of such other person, and if, in any case where the employee has claimed or received compensation within six months of the injury, the insurer does not proceed to enforce such liability within a period of nine months after said injury, the employee may so proceed. In either event the sum recovered shall be for the benefit of the insurer unless such sum is greater than that paid by it to the employee. If the insurer brings the action four fifths of the excess shall be paid to the employee, and if the employee brings the action he shall retain the entire excess.' Mass.G.L., c. 152, § 15.

As early as May 1958, steps were taken by the employer city looking to enforcement of the defendant's liability for the accident of March 12, 1958 under the foregoing statutory provisions. The matter was referred to the Haverhill city solicitor, and in turn to New Hampshire counsel. Suit in the name of the employee Sayers was instituted in Rockingham County Superior Court by writ dated January 14, 1959.

At the trial the defendant moved that the City of Haverhill 'be named and added' as a party plaintiff, and likewise moved to dismiss the action on the ground that it was brought by the city after the expiration of nine months from the date of injury. The motion to add the city as a party plaintiff was denied, although it was 'found and ruled that the City of Haverhill is a party in interest.' After hearing, in part before the jury and in part without the jury, the Trial Court denied the defendant's motion to dismiss grounded upon the contention that the city was barred by the statute from recovery. In support of its exceptions the defendant relies upon language of the court in Employers Mutual Liability Ins. Co. of Wisconsin v. Ford Motor Co., 335 Mass. 504, 507-508, 140 N.E.2d 634, 637 to the effect that after the nine months period the employee 'alone has the right to bring the action' against the third party, and construing 'the nine month period as a limitation on the right of the insurer to bring the third party action.' As the cited case is understood, it stands for the proposition that a compensation insurer is not entitled to declaratory relief against a third party tort-feasor when no action has been brought within the nine month period fixed by the compensation statute. It is not controlling of the case before us.

Under the Massachusetts law, the authority of the plaintiff to maintain a common law action against a third party is a preliminary question for the judge, whether the action is by the injured employee (Nealon, petitioner, 334 Mass. 213, 218, 134 N.E.2d 886) or by the insurer in the name of the employee. Murray v. Rossmeisl, 284 Mass. 263, 267, 187 N.E. 622; Hobart v. O'Brien, 243 F.2d 735, 740 (1st Cir., 1957). In the case before us the preliminary question presented by the defendant's motion was properly determined by the judge, upon evidence which warranted the finding and ruling made.

Furthermore, the issue is one not available to the defendant as a defense, so long as it will be protected against double recovery, as will this defendant. Dreher v. Bedford Realty, Inc., 335 Mass. 385, 140 N.E.2d 180, was decided a month before the Employer's case supra relied upon by the defendant. It was a common law action against a third party defendant brought by the compensation insurer in the name of the injured employee after she had accepted compensation and twenty-one months after the injury. As a part of a compensation settlement made more than sixteen months after the suit was brought, the insurer had relinquished its interest in the pending action to the employee. Evidence of these facts was held to have been properly withdrawn from consideration by the jury. The Court held that the insurer's conduct 'was of no concern to the [third party] defendant, but was entirely a matter between the insurer and the injured employee' and concluded: 'Here the defendant * * * should not be permitted to defeat or diminish the recovery against it by showing negotiations between the insurer and the injured employee * * * A contrary holding would result in conferring a windfall upon the third party wrongdoer.' Id., pp. 391, 392, 140 N.E.2d p. 185. We conclude that the defendant's motions to dismiss upon the ground that the action was brought by the city were properly denied. Hobart v. O'Brien, 243 F.2d 735 (1st Cir., 1957) supra. See also, Becker v. Eastern Massachusetts Street Ry., 279 Mass. 435, 181 N.E. 757; West v. Moulders Foundry Co., 342 Mass. 8, 171 N.E.2d 860.

The defendant's motions for nonsuit and directed verdict upon the ground that there was no evidence of the defendant's negligence and that the plaintiff was contributorily negligent as a matter of law were also properly denied. The evidence indicated that the defendant was engaged by the Haverhill Electric Company to cut down a dead elm tree in Haverhill. On March 12, 1958 three employees of the defendant and three employees of the city, including the plaintiff, converged upon the scene of the accident. Pending the arrival of the Ralston crew the city crew which arrived first, engaged in trimming a maple tree some seventy-five feet away from the elm in question. So far as removal of the elm was concerned the function of the city crew was to remove debris.

The evidence was conflicting as to whether the general practice was to remove a severed limb from beneath the tree before the cutting of a second limb proceeded, and as to whether the city crew was to take debris from beneath the tree, or to wait until it had been moved out from under the tree by the Ralston crew. In any event, one of the lower limbs was cut from the elm and lowered to the ground without incident, and a Ralston employee using a power saw proceeded to trim the brush from the outer end of the severed limb. While this was being done, the plaintiff remained at the rear of a city truck which was parked near the maple tree about seventy-five feet south of the elm on the same side of the street.

After the first limb had been lowered to the ground and partially trimmed off, and while Cloutier, the Ralston 'topper,' was rigging the ropes preparatory to removing a second limb some thirty feet above the ground and two feet above where the first limb had been cut, the plaintiff advanced with a power saw to the first limb lying in the street. Cormier, a second employee of the defendant, was then standing in the street near the fallen limb, holding the lowering rope which Cloutier, in the tree, was placing for removal of the second limb. Hardy, the third employee of the defendant, was then standing upon the sidewalk, facing toward Cormier, with the fallen limb between them, and both he and Cormier were engaged in watching Cloutier.

Cloutier testified that it took him about ten minutes to rig the ropes before he commenced to saw on the second limb which extended directly above the limb in the street. He then proceeded with a hand saw to cut the second limb from the tree, and had been sawing for about four minutes when the limb broke and fell to the ground, striking the plaintiff in the back.

Beauvais, the plaintiff's foreman who was engaged in trimming the maple, instructed the plaintiff 'to go up and cut them limbs so that we could get them out of the way and load them in this truck, that was part of our job.' The plaintiff testified that when he started with his power saw toward the limb in the street Cloutier was rigging the second limb. When he arrived at the fallen limb, the plaintiff again looked up at Cloutier and saw that he was tying the rope to the second limb. The plaintiff started his power saw and commenced to cut the limb in the street, bending over it. He had been sawing for about four minutes and possibly had started a second cut, when the second limb fell upon him. On cross-examination he testified he was not sure of the length of time that he had been sawing, that it could have been a matter of a few seconds, and again that it was 'two or three minutes.'

Cormier, who was holding the lowering rope, stood a few feet away from the fallen limb when Sayers commenced to saw on it. He testified that Sayers was sawing 'about two minutes' before the limb fell. As the plaintiff was sawing, the slack end of the lowering rope lay in the street under the fallen limb, in the vicinity of where the plaintiff was cutting. Cormier let go of the holding rope with his right hand in an effort to pull the slack away from where Sayers was working, 'three or four feet away,' and as he did so the second limb broke. Because Cormier had the rope with only one hand, he was unable to hold the limb from falling upon Sayers. Any shouted warning to Sayers at that time would have been useless because of the noise of his power saw.

...