Willard v. Bancroft Realty Co.

• Decision Date: 09 January 1928
• Citation: 262 Mass. 133,159 N.E. 511
• Parties: WILLARD v. BANCROFT REALTY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 133

159 N.E. 511

WILLARD

v.BANCROFT REALTY CO.

Supreme Judicial Court of Massachusetts, Worcester.

Jan. 9, 1928.

Report from Superior Court, Worcester County; Philip J. O'Connell, Judge.

Action of tort by Eugene B. Willard against the Bancroft Realty Company for a personal injury alleged to have been sustained on a defective platform. Verdict directed for defendant, and case reported. Judgment for defendant.

C. W. Proctor, of Worcester, for plaintiff.

C. C. Milton, of Worcester, for defendant.

WAIT, J.

[1][2] This is an action of tort brought by an employee of a subcontractor against a general contractor, for injuries sustained through the alleged negligence of the defendant in putting him at work in a dangerous place, without warning, upon a platform defective by reason of its lack of care. Both the subcontractor and the general contractor were insured under the workmen's compensation statute (G. L. c. 152). No notice of retention of common-law rights had been given by the plaintiff. The defendant contends that in such circumstances there can be no recovery in this action at law. The law is well established that an injured employee who has a right to compensation under G. L. c. 152, and who has not reserved his rights at common law by notice under the statute, cannot maintain an action at law against any one liable to him for such compensation. G. L. c. 152, § 24; Young v. Duncan, 218 Mass. 346, 106 N. E. 1; Cox's Case, 225 Mass. 220, 114 N. E. 281;White v. George A. Fuller Co., 226 Mass. 1, 114 N. E. 829;Gilbert v. Wire Goods Co., 233 Mass. 570, 124 N. E. 479;White v. E. T. Slattery Co., 236 Mass. 28, 127 N. E. 597; Bindbeutel v. Willcutt & Sons Co., 244 Mass. 195, 138 N. E. 239;Catalano v. George F. Watts Co., 255 Mass. 605, 152 N. E. 46; Comerford's Case, 229 Mass. 573, 118 N. E. 900; and 224 Mass. 571, 113 N. E. 460. The plaintiff, however, contends that an exception exists under section 18 of the statute, and that upon its facts this case is within the exception. Section 18 provides for compensation under the act for injured employees of independent or subcontractors who have contracted to do all or part of the work comprised in the job which a general contractor is carrying on, if the insurer would be liable had they been employees of the general contractor; but makes an exception if the contract of the independent contractor or subcontractor is ‘merely ancillary and incidental to, and is no part of or process in, the trade or business carried on by the insured’ or ‘where the injury occurred elsewhere than on, in, or about the premises on which the contractor has undertaken to execute the work for the insured or which are under the control or management of the insured.’

There was no dispute that the defendant was constructing an addition to a building owned by it in which a separate corporation carried on a hotel business, and that a metal fire escape on what had been the outer wall of the old building was to be removed so that the wall might become part of an inner wall of the enlarged building. The plaintiff's employer was in the business of welding and cutting iron and steel beams by a process which used a flame of mixed oxygen and acetylene gases. Most construction concerns, except the very largest contractors, let out such work. He did nothing but welding and cutting. The defendant requested him to furnish a cutter to take down the fire escape which necessitated cutting the beams that held it to the old wall. He sent the plaintiff with the cutting equipment. The plaintiff...