Travelers Insurance Company v. E. G. Evans

• Decision Date: 03 October 1928
• Citation: 143 A. 290,101 Vt. 250
• Parties: TRAVELERS INSURANCE COMPANY v. E. G. EVANS
• Court: Vermont Supreme Court

143 A. 290

101 Vt. 250

TRAVELERS INSURANCE COMPANY v. E. G. EVANS

Supreme Court of Vermont

October 3, 1928

January Term, 1928.

Master and Servant---Findings as to Erection of Stagings---"Understanding" as Synonymous with "Agreement"---Inadequate Briefing---Workmen's Compensation Act---G. L. 5758, 5768---Duty of Owner of Private Dwelling Supplying Staging for Workmen Slating Such Building---Independent Contractor---Effect of Compensation Award for Death of Employee of Independent Contractor on Right of Insurer To Recover Against Negligent Third Person Causing Deceased's Death.

1. In

ACTION OF TORT, by insurance carrier for workmen's compensation liability, brought under G. L. 5775, for alleged negligence causing death of an employee of a slater employed in slating defendant's house, through collapse of staging on which such employee was working, evidence held to justify court's refusal to find that defendant had nothing to do with building stagings, and to also justify finding that staging was "erected by the defendant or his employees."

2. "Understanding," as used in findings, Held to be synonymous with "agreement."

3. Reference to transcript, in briefing defendant's exception to court's failure to find that workmen were engaged in common enterprise, by stating that "the whole transcript shows that this was a common enterprise," held not to entitle exception to consideration because not a compliance with rule requiring specific reference to such parts of evidence as may be deemed material, giving page and number of interrogatory.

4. In action of tort by insurance carrier for workmen's compensation liability, brought under G. L. 5775, where defendant was a private person engaged in building a private dwelling for himself, and hence, not being in a trade or occupation "for the sake of pecuniary gain," was not engaged in "employment" within meaning of term as defined in G. L. 5758, and there was no finding that defendant had taken steps required by G. L. 5768, as amended by Laws 1923, No. 105, 2, to bring himself within provision of Workmen's Compensation Act as an individual engaged in a business trade, or occupation not carried on for pecuniary gain, held that Supreme Court could not infer that he had come under said Act from findings, even though defendant himself had to do with directing work to a certain extent and even though he was insured in a liability insurance company under provisions of said Act.

5. Where defendant erecting private dwelling house for himself contracted with slater, who was engaged in taking jobs of slating houses and had employees of his own, to have charge of slating such dwelling, and defendant agreed to furnish stagings put up by him in erection of houses, as completed structures or instrumentalities for use of slater and his employees,

it was defendant's duty to use due diligence to see that structure so furnished was reasonably safe for purpose of its intended use, and his liability was same whether defective staging was put up by him personally, or by his servants doing carpenters' work on same building.

6. Slater employed to do particular work of slating defendant's house, supplying his own tools, assistants, and instrumentalities, except completed stagings which defendant agreed to furnish, and who alone supervised, controlled, and directed work, defendant specifying result only, and slater adopting such means and methods as he saw fit to accomplish that result, held to be an independent contractor.

7. Where defendant, engaged in erecting his own private dwelling, employed a slater as independent contractor to slate such house, and employee of slater was killed by reason of collapse of staging on which he was working supplied by defendant, receipt of compensation by widow of deceased under Workmen's Compensation Act, held no bar to action of tort by insurance carrier against defendant under G. L. 5775, standing of defendant as to deceased at time of latter's fatal injury being that of a "person other than the employer," and said section providing that employer, which by statute is made to include "insurer," who has paid compensation or has become liable therefor is subrogated to rights of injured employee to recover against such third person.

ACTION OF TORT, brought under G. L. 5775 by insurance carrier for Workmen's Compensation liability for alleged negligence of person engaged in erecting private dwelling, causing death of employee of slater employed in slating such house, through collapse of staging, erected by defendant, on which such employee was working. Trial by court at the January Term, 1928, Chittenden County, Willcox, J. presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case. Affirmed.

Judgment affirmed.

Max L. Powell for the defendant.

Warren R. Austin and William H. Edmunds for the plaintiff.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, and CHASE, JJ.

OPINION

WATSON

This is a common law action of negligence brought by the Travelers Insurance Company under section 5775 of the General Laws, to recover of defendant E. G. Evans, for negligence which caused the death of one William Rogers. That section of the statute is part of chapter 241 which relates to "Employer's Liability and Workmen's Compensation. "The particular section mentioned relates to "Liability of Third Persons,"and reads "When an injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in some person other than the employer a legal liability to pay damages in respect thereto, the injured employee may, at his option, either claim compensation under the provisions of this chapter or obtain damages from or proceed at law against such other person to recover damages; and, if compensation is claimed and awarded under the provisions of this chapter, an employer having paid the compensation or having become liable therefor shall be subrogated to the rights of the injured employee to recover against that person; provided, if the employer recovers from such other person damages in excess of the compensation already paid or awarded to be paid under the provisions of this chapter, then any such excess shall be paid to the injured employee less the employer's expenses and costs of action. "By section 5758 certain words and phrases used in that chapter, unless the context otherwise requires, shall be construed as follows:

"I. Employer' to include any body of persons, corporate or unincorporated, public or private, and the legal representative of a deceased employer, and to include the owner or lessee of premises, or other person who is virtually the proprietor or operator of the business there carried on, but who, by reason of there being an independent contractor or for any other reason, is not the direct employer of the workmen there employed. If the employer is insured, employer' includes his insurer so far as applicable;

"II. 'Workmen' and 'employee' to mean a person who has entered into the employment of, or works under contract of service or apprenticeship with, an employer, but not to include a person whose employment is purely casual or not for the purpose of the employer's trade or business, * * * * * * *;

"V. 'Employment,' in the case of private employers, to include employment only in a trade or occupation which is carried on by the employer for the sake of pecuniary gain * * * * * *;

"VIII. Insurance carrier' to include any corporation from which an employer has obtained workmen's compensation insurance or guaranty insurance in accordance with the provisions of this chapter."

Sec. 5768 (as amended by Laws of 1923, No. 105, § 2) provides:

"* * * * * A charitable, religious, educational or other corporation, * * * * * or individual engaged in a business, trade or occupation which is not carried on for the sake of pecuniary gain, may voluntarily come within the provisions of this chapter by giving a similar notice" to said commissioner that he wishes to be included within such provisions.

By section 5774: "The rights and remedies granted by the provisions of this chapter to the employee on account of a personal injury for which he is entitled to compensation under the provisions of this chapter, shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, at common law or otherwise on account of such injury * * * * *" The trial was by court. The following facts, among others, appear of record: The defendant was engaged in building for himself a private dwelling in the city of Burlington and he himself had to do with directing the work to a certain extent, and employed one Tomlinson to look after the erection of the house and one Salls to have charge of slating it. Salls' business was that of taking jobs of slating houses, and said William Rogers was an employee of his in the prosecution of such business. Salls was insured in the plaintiff company under the provisions of Chapter 241, General Laws, and defendant Evans was insured in the Employers Liability Company under the provisions of same chapter. The findings state "that there was an understanding between the defendant and Salls that the staging erected by Evans (defendant) and those in charge under him should be left for the use of Salls and his employees in slating the house." Said Rogers met with an accident July 28, 1922 arising out of and in the course of such employment, and while upon a staging erected by defendant or his employees. The staging fell, throwing Rogers to the ground with the planking, some slate, and other material, a distance of approximately twenty-seven to thirty feet, injuring him so that he died shortly afterwards. That...