Whitehouse v. Cities Service Oil Co.

• Decision Date: 30 November 1943
• Citation: 52 N.E.2d 414,315 Mass. 108
• Parties: WILLIAM A. WHITEHOUSE v. CITIES SERVICE OIL COMPANY (and a companion case [1]).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

315 Mass. 108

52 N.E.2d 414

WILLIAM A. WHITEHOUSE v. CITIES SERVICE OIL COMPANY (and a companion case ^[1]).

Supreme Judicial Court of Massachusetts, Plymouth.

November 30, 1943

November 9, 1943.

Present: FIELD, C.

J., LUMMUS, QUA COX, & RONAN, JJ.

Workmen's Compensation Act, Employee of independent contractor. Sale What constitutes. Practice, Civil, Requests, rulings and instructions.

A request at the trial of an action of tort for an instruction that the jury might consider, as bearing upon the plaintiff's contributory negligence, a certain fact, if found to be a fact, properly was denied where the evidence as to that fact was conflicting and the fact was not decisive of the issue of contributory negligence.

The relation between a corporation engaged in marketing, selling and distributing petroleum products and the proprietor of a tank truck, who under a "distributor's sales contract and license agreement" with the corporation bought such products from it and resold them to his own customers within a territory designated in the contract and subject to its terms, was that of seller and buyer; a finding would not have been warranted that the proprietor of the truck had entered into a contract with the corporation to do a "part of or process in . . . [its] trade or business" within G. L (Ter. Ed.) c. 152, Section 18.

TWO ACTIONS OF TORT. Writs in the Second District Court of Plymouth dated December 2, 1939.

On removal to the Superior Court, the cases were tried together before Warner J.

M. J. Dray, for the defendants. H. F. Hathaway, for the plaintiff.

RONAN, J. The plaintiff was employed by the Albert Culver Co., hereinafter called Culver, as an operator of a large ten-wheeled tank truck. He drove the truck upon the premises of the corporate defendant, hereinafter called the oil company, for the purpose of obtaining fuel oil and kerosene. After getting a written order at the office of the oil company, he drove the truck into one of the stalls located under elevated tanks and loaded on the quantity of fuel oil mentioned in the written order. Another truck was waiting to load at this stall. A platform or catwalk, twenty inches wide and about four feet above the ground, ran along the uprights that supported the elevated tanks. There was a clearance of about a foot between this catwalk and the right side of the tank truck. The defendant Glencross, a loader in the employ of the oil company, got into the cab of the Culver truck to drive it out of the stall so that the other truck which was waiting to be loaded could get into the stall. There was evidence that the plaintiff, as he was getting down from the side of the truck, discovered that Glencross was in the cab back of the steering wheel; that, when he reached the running board or the step near the cab, he told Glencross not to drive the truck as he, the plaintiff, would drive it out; and that Glencross then started the truck and the plaintiff was wedged between the truck and the catwalk. There was other evidence that the plaintiff was stepping down from the catwalk when the truck started. There was also evidence that Glencross did not see the plaintiff before he started the truck and that, after the truck started, the plaintiff ran along the catwalk to get ahead of the truck and, in attempting to get on the truck, he went down between it and the catwalk. No question is raised but that it could be found that Glencross was acting within the scope of his employment in moving the truck out of the stall. The jury returned verdicts for the plaintiff. The cases are here on exceptions to the refusal to direct verdicts for the defendants and to give two requests for instructions, and to the exclusion of evidence which the defendants contend, if admitted, would show that the only remedy the plaintiff had was under the workmen's compensation act.

The two requests for instructions were to the effect that the jury might consider, as evidence of the plaintiff's contributory negligence, the fact, if it was found to be a fact, that the plaintiff attempted to board the truck while it was in motion. There was a conflict in the evidence as to just what the plaintiff was doing immediately before he was caught between the truck and the catwalk. These requests were not decisive of any issue in the case. They simply directed the jury's attention to a part of the evidence introduced upon the issue of the contributory negligence of the plaintiff, and asked the jury to find, if the facts assumed in the request were found to be true, that they could consider them as evidence of negligence. The defendants had no right to select a portion of the evidence which was favorable to them and to secure additional emphasis to that aspect of the evidence by embodying it in a request and having it given to the jury. These requests were properly refused by the trial judge. Sodekson v. Lynch, 314 Mass. 161 . Burgess v. Giovannucci, 314 Mass. 252 . Russell v. Berger, 314 Mass. 500 .

The remaining and principal contention of the defendants is that Culver was an independent contractor who had entered into a contract with the oil company, an insured employer, by which it was to do the latter's work and that by virtue of G. L. (Ter. Ed.) c. 152, Section 18, the plaintiff, who had not reserved his right of action at common law against Culver, which was also insured, had no rights to maintain against the oil company or against its employee, the defendant Glencross. The defendants in support of this contention offered in evidence a statement of stipulated facts which were admitted by the parties to be...