Tracy v. Cambridge Junior College

• Decision Date: 12 December 1973
• Citation: 304 N.E.2d 921,364 Mass. 367
• Parties: Rose Marie TRACY v. CAMBRIDGE JUNIOR COLLEGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 921

304 N.E.2d 921

364 Mass. 367

Rose Marie TRACY v. CAMBRIDGE JUNIOR COLLEGE.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 3, 1973.

Decided Dec. 12, 1973.

John M. Hall, Boston (Gene D. Dahmen, Boston, with him), for defendant.

Michael B. Latti, Boston (Robert S. Wolfe, Boston, with him), for plaintiff.

Before TAURO, C.J., and BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

HENNESSEY, Justice.

The plaintiff was an employee of the defendant corporation, which operated a private school in Cambridge. On July 20, 1967, the plaintiff fell and suffered personal injuries while working in one of the buildings owned and occupied by the defendant corporation. The plaintiff's action is in two counts in tort. Count 1 alleges in substance that the defendant was not a subscriber under the Workmen's Compensation Act contrary to the requirements of the law and that the plaintiff is therefore entitled to recover damages against the defendant. Count 2 alleges that the defendant was a corporation operation for private profit, that it negligently failed to maintain its premises in a safe condition, and that the plaintiff was injured as a consequence. The defendant's answer contained, inter alia, the defence that on the date of the plaintiff's injury it was immune from liability because it was a charitable corporation. See RICKER V. NORTHEASTERN UNIV., MASS., 279 N.E.2D 671^A.

At the conclusion of all of the evidence the defendant filed motions for a directed verdict on each of the two counts. These motions were denied and the defendant's exceptions were saved. In addition, with reference to count 2 only, the defendant excepted to the judge's refusal to give certain instructions to the jury concerning charitable immunity, and to the admission of certain evidence of the condition of the floor outside the scope of the plaintiff's answers to the defendant's motion for specifications.

The jury returned identical verdicts for the plaintiff on counts 1 and 2. We have concluded that the defendant's motion for a directed verdict as to count 1 was properly denied. Consequently we have found it unnecessary to consider the exceptions related to count 2.

1. The plaintiff in count 1 of her declaration asserts a tort action deriving out of the provisions of G.L. c. 152, the so called workmen's compensation statute. The essential elements of proof of such an action are in substance that she sustained personal injuries in the course of her employment; that her employer was required by law to be an insured person or a self-insurer for her benefit under the workmen's compensation statute; and that it failed to provide such insurance or to be a self-insurer.

These necessary elements of proof are established by the application of G.L. c. 152, §§ 1, 66, and 67. The text of those sections of the statute, as of the date of the accident and in so far as they are relevant to this case, is set out in the margin. ¹ It is not disputed here that the plaintiff sustained her injuries while working in the course of her employment by the defendant. Neither is it disputed that the defendant was not insured or a self-insurer under the Workmen's Compensation Act at the time of the accident. Nevertheless, the defendant argues that it was not required by law to be insured or a self-insurer, in that § 1(4) made the provisions of the statute elective as to the defendant. Specifically, the defendant relies on its assertions that it was (1) a charitable or educational institution, and (2) an employer of three or less persons, within the meaning of § 1(4). Therefore, the defendant says that, as it was not required to be insured or a self-insurer, it was entitled to a directed verdict under count 1 of the plaintiff's declaration. We do not agree.

It is clear that the defendant would have been entitled to a directed verdict on count 1 if its status had been conclusively established as an employer of three or less persons. Further, even if the defendant could be found to have employed four or more employees, a directed verdict for the defendant would have been required if it had been shown as matter of law that (1) the defendant was a charitable or educational institution, and (2) the plaintiff was not a laborer, workman or mechanic within the meaning of G.L. c. 152, § 1(4)(a). Our examination of the evidence discloses that the jury were warranted in concluding that the defendant employed more than three persons and, even assuming that the defendant was a charitable or educational institution, that the plaintiff was a laborer or workman within the meaning of the statute. It follows that the jury were warranted in concluding, as they must have done, that the defendant was required by law to be an insured or a self-insurer under the statute.

As to the number of persons employed by the defendant, the evidence warranted a conclusion that there were at least four persons employed, although it is clear that the status of some of them was arguably equivocal. In addition to the proof of the plaintiff's status, it was shown that one Dr. Irving Richards was president of the corporation and a salaried member of the faculty. His son, Paul Richards, because of the serious illness of his father, had assumed his father's administrative duties including the paying of bills, the writing of letters, and the keeping of records. He had completed dictation to the plaintiff just before her accident occurred. He had been performing these functions for about two weeks. The jury could find that he was an employee even though there was some evidence that he was not being compensated for the work.

It could also be found that Dr. Richard's wife was an employee, since she acted as hostess of the college and office assistant. She, with her husband, received the benefits of an eight-room apartment at what could be found to be a substantially reduced rental. She received additional compensation when special efforts were required. As in the situation of Paul Richards, it is not controlling that no more specific contract of employment or arrangement for compensation was shown. See Barstow v. Old Colony R.R., 143 Mass. 535, 10 N.E. 255 (1887); Cameron v. State Theatre Co., 256 Mass. 466, 152 N.E. 880 (1926); Castagna's Case, 310 Mass. 325, 38 N.E.2d 63 (1941).

In view of our above conclusions, we need not consider the further contentions of the plaintiff that, although ten faculty members of the school had completed their work for the year and had been compensated in full, they had such a continuous relationship to the school as to support a finding that they were employees, within the meaning of the statute, at the time of the plaintiff's injury.

The defendant's contention that as matter of law it was a charitable or educational corporation, or both, and that the provisions of G.L. c. 152 were thus elective, is disputed by the plaintiff. She relies upon detailed evidence of the nature and extent of corporate shares as well as the identities and privileges of the share owners, to support her premise that the charitable status of the defendant was at best a jury issue. To support her argument that the jury were also warranted in concluding that the defendant was not, at the time of the accident, an educational institution, she points to proof that the educational activities of the school had been suspended for at least the following academic year by reason of Dr. Richards's serious illness.

We need not consider the issue as to the charitable or educational status of the defendant, since we have concluded that the evidence warranted a finding by the jury that the plaintiff was a laborer or workman within the meaning of that term in § 1(4)(a). We have before us no exceptions as to the judge's charge. Therefore we must assume that the jury were properly instructed on this and all other issues, that the jury found the plaintiff to be a laborer or workman under the statute and that they found that workmen's compensation coverage for her was required under § 1(4)(a).

In concluding that the plaintiff could be found to be a laborer or workman within the meaning of c. 152, § 1(4)(a), ² we turn first to a determination of the nature of the plaintiff's work. While she apparently held the title of assistant librarian, it is the nature of the work performed and not her title which must govern. Cf. Sawyer v. Bay State Motor Exp. Co., 89 F.Supp. 843 (D.Mass.1948). It is clear from the record that her basic job classification would be that of a secretary. She had typing, stenographic and record keeping duties, answered the telephone, served as a receptionist, and countersigned checks. She supervised no one and was apparently under the direct supervision of Dr. Richards. Her work was clearly clerical rather than what is usually thought of as physical, and thus the issue before us is whether such a clerical employee could be found to be a workman or laborer under the statute. We turn to an analysis of that question.

At the outset it should be pointed out that the question is one of first impression here and, as it derives from the specific peculiarities of the Massachusetts Workmen's Compensation Act, G.L. c. 152, it apparently has never been squarely presented elsewhere either. ³ It is true that we have interpreted the terms workman and laborer under both § 1(4)(a), dealing with religious, charitable and educational institutions and directly applicable here, and §§ 68--75, dealing with governmental units and applicable indirectly. However, in each of those cases the nature of the work under consideration was substantially different from that involved here.

Nevertheless, the defendant argues somewhat persuasively that the trend of those decisions and the reasoning therein expressed support the contention that the plaintiff here was as martter of law not a workman or laborer. This court has interpreted 'workmen' to 'broadly embrace those who are skilled users of tools' and 'la...