Stoltz's Case

• Decision Date: 27 April 1950
• Citation: 325 Mass. 692,92 N.E.2d 260
• Parties: STOLTZ'S CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

325 Mass. 692

92 N.E.2d 260

STOLTZ'S CASE.

Supreme Judicial Court of Massachusetts, Hampden.

April 27, 1950

Argued April 4 1950.

E H. Wright, Springfield, for American Casualty Co.

J. H. Mulcare Springfield, N. M. Harvey, Springfield, for Aetna Casualty & Surety Co.

Before QUA, C. J and LUMMUS, WILKINS, WILLIAMS and COUNIHAN, JJ.

WILKINS, Justice.

On this record this is a conflict between two insurers. On December 18, 1947, the employee received an injury arising out of and in the course of his employment by the city of Westfield, which had accepted the provisions of St. 1913, c. 807, ^[1] and accordingly, was required to pay the compensation provided by the workmen's compensation act. G.L. (Ter.Ed.) c. 152, § 69, as amended. Fallon's Case, 322 Mass. 61, 62, 76 N.E.2d 144. The city did not become a self-insurer, ^[2] nor did it insure all its employees covered by the act with one insurer. See Friend Brothers, Inc., v. Seaboard Surety Co., 316 Mass. 639, 642, 56 N.E.2d 6, 153 A.L.R. 962. Instead there were no less than five policies of workmen's compensation insurance, each purporting to cover a different department of the city. The two insurers who are parties to the present case are American Casualty Company, on a policy purporting to cover the public works department; and Aetna Casualty & Surety Company, on a policy purporting to cover the gas and electric light department. The record mentions three other policies, respectively purporting to cover the school, water and aviation departments, but does not give the names of the insurers. There may be still other policies purporting to cover other departments.

The employee occupied the position within the classified civil service of deputy tree warden in the forestry department. This department as such does not appear to have been expressly covered by any policy of insurance. The employee's duties were mainly manual, and he was an employee within the meaning of § 69. On the day of his injury he was temporarily assigned to the gas and electric light department, because the appropriation of the forestry department became insufficient to pay his salary toward the end of the fiscal year. He was engaged in performing work of the same character as he performed as deputy tree warden, such as cutting and trimming trees and brush. While he was engaged with other city employees working on trees along a high voltage line of the gas and electric light department, a dead limb which he was cutting with a power saw collapsed and struck the saw, causing it to strike and incapacitate him.

The single member decided that the employee at the time was employed in the gas and electric light department, and that the Aetna company was the insurer liable. The reviewing board reversed the decision of the single member, dismissed the claim against the Aetna company, and held the American Casualty Company liable. In so doing, the reviewing board stated, 'The American Casualty Company does not dispute the fact that its policy covers the regular position of the employee as deputy tree warden.' If material, this finding was not warranted by the evidence and cannot stand. On this record the employee was regularly employed in the forestry department, which was not part of the public works department. It was the latter department which the American Casualty Company's policy purported to cover.

In the Superior Court a decree ^[3] was entered adjudging that the employee is entitled to compensation for injuries 'arising out of and in the course of his employment with the forestry department of the public works department' of the city whereby he was incapacitated, and ordering the American Casualty Company to make payment; and also adjudging that the employee was not an employee of the gas and electric light department when injured, and dismissing the claim against the Aetna company. The American Casualty Company appealed.

For reasons already discussed, the decree, in so far as it describes the forestry department as part of the public works department, is erroneous. Nor is this an accurate recital of any finding of the reviewing board.

The employee admittedly is entitled to compensation, but the procedure afforded by G.L. (Ter.Ed.) c. 152, § 15A, as amended by St. 1934, c. 252, was not used.

In its decision the reviewing board said: 'The city as a single political entity, accepted the act by vote of its electorate and not by the individual departments into which it is organized. In so accepting the provisions of the act as to its laborers, workmen and mechanics, the city became primarily liable to pay compensation to such employees and thus assumed somewhat the position of an insurer (though not an insurance company in the strict sense of that term), assuming the liabilities and enjoying the benefits of the act (Hurley's Case, 302 Mass. 46 ). * * * But the city could not so insure its laborers, workmen and mechanics in some of its departments and not such employees in others. If the city elected to so insure, it then assumed the position of any other employer subject to the act; i. e., if it insured at all, it was required to insure the whole of its obligations to the extent of its acceptance of the act (Cox's Case, 225 Mass. 220 ). * * * But it is our considered opinion that if the city insured at all with an insurance company, it was required to do so under a single policy of insurance contracted for through its legislative and executive authority. * * * In the foregoing view, it is our opinion further that as matter of law any one of the multiple policies of workmen's compensation covering laborers, workmen and mechanics of the city at the time of the employee's injury and constituting duplicate or manifold coverage might be selected and held liable to pay compensation on the instant claim (Cox's Case, 225 Mass. 220 ). In particular, either of the two insurers named in this record could be selected to thus pay, since they were both parties to this proceeding.'

We are of opinion that...