White v. George B.H. Macomber Co.

• Citation: 138 N.E. 239,244 Mass. 195
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 02 March 1923
• Parties: WHITE v. GEORGE B. H. MACOMBER CO. BINDBEUTEL v. WILLCUTT & SONS CO.

244 Mass. 195

138 N.E. 239

WHITE

v.GEORGE B. H. MACOMBER CO.

BINDBEUTEL

v.WILLCUTT & SONS CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1923.

Exceptions from Superior Court, Suffolk County; John D. McLaughlin, Judge.

Report from Superior Court, Suffolk County; P. M. Keating, Judge.

Two actions of tort, by Thomas F. White against the George B. H. Macomber Company, and by William C. Bindbeutel against the Willcutt & Sons Company, to recover on behalf of insurance companies paying compensation under the Workmen's Compensation Act against the parties claimed to have been responsible for the injuries. The court found for defendant in the first action, and plaintiff brings exceptions. Demurrer sustained in the second action, and case reported. Exceptions in the first action overruled, and judgment entered for defendant in the second action.

James T. Connolly, of Boston, for plaintiff White.

Peabody, Arnold, Batchelder & Luther, of Boston, and James E. Farley, of Peabody, for defendant Macomber Company.

Walter I. Badger and Louis C. Doyler, both of Boston, for plaintiff Bindbeutel.

Nason & Proctor and J. Frank Scannell, all of Boston, for defendant Willcutt & Sons Co.

CARROLL, J.

In Bindbeutel v. L. D. Willcutt & Sons Company, the defendant was a general contractor in the erection of a building. The plaintiff was in the employ of Buerkel & Co., a subcontractor doing the heating and plumbing for the building. Both the defendant and Buerkel & Co. had accepted the provisions of the Workmen's Compensation Act. The plaintiff was injured by reason of the negligence of the defendant or its employees. He was paid compensation by the Travelers' Insurance Company, his employer's insurer. The action of tort is under St. 1911, c. 751, pt. 3, § 15, now G. L. c. 152, § 15, and is brought for the benefit of the plaintiff and the Travelers' Insurance Company. In the superior court the defendant's demurrer was sustained, and the case reported to this court.

In White v. George B. H. Macomber Company the defendant was the general contractor. The plaintiff's employer was a subcontractor engaged in doing a part of the work comprised in the contract of the general contractor. The defendant and the plaintiff's employer were insured under the Workmen's Compensation Act. The plaintiff was injured by the negligence of the defendant's servants. He was paid compensation by the Ocean Accident & Guarantee Corporation, Limited, the employers' insurer, and this action or tort is brought by the plaintiff for his benefit and the benefit of the Ocean Accident & Guarantee Corporation, Limited, under St. 1911, c. 751, pt. 3, § 15. The plaintiff moved for a directed verdict in his favor; the motion was denied. Judgment was entered for the defendant, and the plaintiff excepted.

The same issue is presented in each of the cases. It is, whether an insurance company which has paid compensation to an injured employee of a subcontractor whom it has insured under the Workmen's Compensation Act, can maintain an action as provided by St. 1911, c. 751, pt. 3, § 15 (now G. L. c. 152, § 15), against the general contractor on the job, when the general contractor has also accepted the provisions of the act. This section provides, when an injury happens to an employee for which compensation is payable under the statute, ‘under circumstances creating a legal liability in some person other than the insured to pay damages, the employee has the option to proceed against that person or against the insurer for compensation under the Workmen's Compensation Act, but not against both’; and if compensation be paid under this chapter, ‘the insurer may enforce in the name of the employee or in its own name and for its own benefit, the liability of such other person; and in case the insurer recovers a sum greater than that paid by it to the employee four-fifths of the excess shall be paid to the employee.’ By St. 1911, c. 751, pt. 3, § 17 (now G. L. c. 152, § 18), if a subscriber enters into a contract with an independent contractor to do all or any part of the subscriber's work, and the insurer would be liable to pay compensation to those immediately employed by the subscribers if such work were done by them, it shall pay to the employees of the subcontractors the compensation payable, to the same extent as if the subcontractors were insured under the act. The insurer shall be entitled to recover indemnity from the person liable to such employee, ‘independently of this section,’ and if compensation has been paid by the insurer, it may, in the name of the employee, or in its own name, enforce the liability of such person.

The insurer in each of these cases contends that having paid the employee of the subcontractor, it can maintain action against the general contractor under the statute. It was decided in White v. George A. Fuller Co., 226 Mass. 1, 114 N. E. 829, that an employee of a subcontractor could not sue the general contractor in tort at common law, if the general contractor was insured under the Workmen's Compensation Act. That the remedy of the employee of a subcontractor who was injured by the negligence of the employees of the general contractor...