Moschella v. City of Quincy

Kirk, J.

(concurring) Mr. Justice Spiegel and I agree that the plaintiff should recover. It is our view, however, that the decision should rest on different grounds. The *85fact that the Legislature has placed the Commonwealth and its political subdivisions, of which the defendant city is one, in a separate and distinct category under the Workmen’s Compensation Act (C. L. c. 152, §§ 69-75) should be the main premise upon which the opinion should be based. We think it is important that this approach should be used because, in our judgment, Pettiti v. Edward J. McHugh & Son, Inc. 341 Mass. 566, departs from the provisions of the Workmen’s Compensation Act and is not reconcilable with decisions of this court relating to the status of the Commonwealth and its political subdivisions under that act. Specifically, the Pettiti case conflicts with Saxe’s Case, 242 Mass. 290, which it does not mention. Because of this conflict, an exposition of the applicable law should now be undertaken with a view to suggesting the resolution of the conflict.

Before proceeding with the detailed consideration of the ease before us, the following summary observation is offered: Having received workmen’s compensation from his employer’s insurer, the sole source of the plaintiff’s right to recover against the city is Gr. L. c. 152, § 15. Under that section, if, as to the plaintiff, the city is an insured person (i.e., is not “some person other than the insured”), the plaintiff’s right to recover in an action at law against the city does not exist. On the other hand, if, as to the plaintiff, the city is “some person other than the insured” (i.e., is not an insured person), the plaintiff’s right to recover against the city is clear, and resort to the subjoined doctrine of common employment is unnecessary. Further, if it be the law that the city is under no obligation to provide, or cannot by law provide, workmen’s compensation for the plaintiff, then the city is not an insured person as to the plaintiff, and he may maintain his action.

For expository purposes, however, it is advisable to start, as does the court, from a broad base, by reference to Clark v. M. W. Leahy Co. Inc. 300 Mass. 565. We state in full the same rule as quoted by Qua, J., in Carlson v. Dowgielewicz, 304 Mass. 560, 562. “The insurance of the *86general contractor or ‘common employer’ . . . throws its shadow over the whole work. In that shadow ... a cause of action for negligence causing a compensable personal injury cannot grow. . . . Since the insurance of the ‘common employer’ covers and protects all employees engaged in the ‘common employment’ . . ., one engaged in that common employment as contractor, subcontractor or employee cannot be a ‘person other than the insured’ within § 15, and the injured employee has no option to sue him at common law. An insurer, whether of the common employer or of a subcontractor, paying compensation to an employee, cannot recover over under § 15 against a negligent contractor, subcontractor or employee engaged in the ‘common employment’; for the insurer succeeds only to the rights of the employee receiving compensation. ... In the application of this rule, it is immaterial whether the subcontractors are insured or not. . . . The essential thing is the existence of a ‘common employer’ who is an ‘insured person’ under % 18 ..., and who is having work done by contract in or about premises specified in § 18 ..., which work is part of or process in his trade or business” (emphasis supplied).

For our purposes the significant words are the italicized words in the last sentence of the quoted rule. It is our opinion that the city is not an “insured person” under § 18. We base our opinion (a) upon the scheme of the Workmen’s Compensation Act in the context of general tort liability; (b) upon the express terms of §§ 69-75; and (c) upon our decisions.

We note first the principle of nonliability, in the absence of statute, of the Commonwealth in general, and of its political subdivisions, in actions of tort for the negligence of their officers and employees in the performance of strictly public functions from which is derived no special corporate advantage, no pecuniary profit, and no enforced contribution from individuals particularly benefited. Bolster v. Lawrence, 225 Mass. 387, 389-390. Baumgardner v. Boston, 304 Mass. 100, 106-109. Molinari v. Boston, 333 Mass. 394.

*87We note also that the Commonwealth and its political subdivisions are not included within the definition of the word “employer” i/n G. L. c. 152, % l.1 We note, too, and emphasize, that the act of 1913 (now Gr. L. c. 152, §§ 69-75) sets apart for separate consideration the employees of the Commonwealth and of its subdivisions as distinguished from employees in private industry. The act extended the principle of compensation to public employees; but it ‘‘ applies only to the Commonwealth and to such local subdivisions as accept it.” Stone’s Case, 290 Mass. 530, 531. Section 70 of the act gives jurisdiction of cases arising under §§ 69-75 to the division of industrial accidents, prescribes that the procedure shall be the same as under §§ 1-68, and secures to the city all the rights of an insurer under §§ 1-68. Hurley’s Case, 302 Mass. 46, 48. The obligation to pay workmen’s compensation benefits by those who accept the act is imposed by § 69.2

We now consider our decision in Saxe’s Case, 242 Mass. 290, 291, in which the court stated, citing earlier cases, that the “right to compensation [from a city which has accepted G-. L. c. 152, § 69] is expressly limited ‘to such laborers, workmen and mechanics employed by it as receive injuries arising out of and in the course of their employment.’ ” It was held that an employee of an uninsured independent contractor, injured in the performance of his employer’s contract with a city which had accepted § 69, was not entitled, under the provisions of § 18, to receive compensation from the city. The validity of that holding stands unimpaired by our decisions.3 See Stone’s Case, 290 Mass. 530, 531; Carlson v. Dowgielewicz, 304 Mass. 560, 563. The effect of the holding is that the city, having accepted § 69, assumed the obligation to pay compensation only within the prescribed limits of the section. That obligation extends only *88to its own eligible employees and to those covered by § 74.4 It does not extend to employees of independent or subcontractors engaged in work under a contract with the city. The obligation of the city does not and cannot, under § 69, throw “its shadow over the whole work.” The city therefore is not a common employer insured under the act and in consequence is not entitled to immunity against such actions at law within its limited sphere of liability, as may be brought by, or in the rights of, employees so engaged.

It would seem to be clear that the statute, our decisions, and the rule itself recognize that the purpose of the Workmen’s Compensation Act (Bresnahan v. Barre, 286 Mass. 593, 597) cannot be carried out in all cases. “Otherwise there would be no room for the application of Gr. L. (Ter. Ed.) c. 152, § 15, under which an employee may . . . [proceed] in an action at law for damages against ‘some person other than the insured.’ ” Pimental v. John E. Cox Co. Inc. 299 Mass. 579, 584. The reasoning in the Pimental case (58^-586) where the basis for immunity is analyzed (and recognized in Clark v. M. W. Leahy Co. Inc. 300 Mass. 565, 568) is here applicable and adaptable. It is the fact that there is an obligation to pay workmen’s compensation, and the further fact that the obligation must extend to all workmen on the job whether or not immediately employed by the contractor which give the general contractor immunity to actions at law by other employees so engaged. Here the plaintiff is outside the scope of the obligation of the city under the statute to make workmen’s compensation payment. In such a case there is no basis for immunity against the liability which is imposed upon the city by Gr. L. c. 84, § 15.5

Amendments to Gr. L. c. 152, since Saxe’s Case, 242 Mass. 290, tend to confirm the conclusion which we reach. The definition of an “insured” or “insured person” in Gk L. *89c. 152, § 1 (6), as amended by St. 1943, c. 529, § 2,6 does not include a city. The definition of an “insurer” in § 1 (7), as amended by St. 1950, c. 277, § 2,7 although it does include a city, places the city in a different category from a ‘ self-insurer,” and thus negatives the implication that a city, even though payments are made from its own funds, is an “insured” or “insured person.” We construe the word “insurer,” in context, as being applicable to the Commonwealth and to those of its political subdivisions which have assumed the obligation to make compensation payments to their employees from funds raised by taxation. Finally, St. 1951, c. 610, § 2,8 which added a paragraph to § 69 permitting political subdivisions of the Commonwealth an alternate method of providing for payment of compensation to their employees, does not indicate a legislative intent to extend the obligation of cities to pay compensation to persons other than their own employees. On the contrary, this added paragraph emphasizes that even though a political subdivision should cover employees by a policy with an insurance company (which thereupon would become the “insurer”) the coverage is to extend only to “laborers, workmen and mechanics employed by it.”

We now refer to Pettiti v. Edward J. McHugh & Son, Inc. 341 Mass. 566, where the court denied recovery to an employee of the Commonwealth who, having received compensation payments, sought damages from an independent contractor and its employee whose negligence caused the injury *90to the Commonwealth’s employee. The denial was on the basis that (a) the Commonwealth was the common employer of the negligent employee of the independent contractor, and (b) the Commonwealth was, as to the negligent employee, an insured person under the act. Specifically, the court said at page 571: “Although it has never been decided, there can be no doubt that the doctrine of common employment applies to the Commonwealth as well as to any other insured person. The Commonwealth is obligated by Gr. L. c. 152, § 69, to pay compensation to its injured employees (see Stone’s Case, 290 Mass. 530) and is specifically defined as an insurer under the workmen’s compensation law by § 1 (7), as amended by St. 1950, c. 277” (emphasis supplied).

It is respectfully submitted that nowhere in the statute is the Commonwealth defined as an “insured” or as “an insured person.” Gr. L. c. 152, § 1 (6). It is likewise submitted that there is no authority in our decisions that the Commonwealth is like “any other insured person.” Our cases, as noted, say the opposite. Further, the definition of the Commonwealth as an “insurer” is carefully circumscribed and can scarcely be the basis for a judicial construction that it thereby became an “insured.” Since the burden of paying compensation to an injured employee of the Commonwealth or of one of its political subdivisions falls upon the taxpayers (0. L. c. 152, § 69), the holding of the court in the Pettiti case that the Commonwealth is the common employer of the negligent employee of the independent contractor, and that the Commonwealth is an insured person, exposes the Commonwealth and towns to an obligation to pay compensation to injured employees of uninsured independent contractors. The holding in Saxe’s Case is precisely to the contrary. We think that the conflict should be resolved in favor of Saxe’s Case.

This exclusion from tibie definition of an “employer” as used in the act prompts the inquiry whether the Commonwealth or a subdivision can be considered a common employer under the act.

See fn. 2 in the court’s opinion.

The city’s reliance upon the language in Collms’s Case, 342 Mass. 389, 393, is misplaced. There the claimant’s decedent was admittedly an employee of the city and the only question was whether § 26 was applicable to him.

Tie city does not contend that the plaintiff comes -within the terms of § 74.

This liability is of course wholly statutory. Wershba v. Lynn, 324 Mass. 327, 331, and cases cited.

The amendment added the words “or is a self-insurer under subsection 2 (a) or 2 (b) of section twenty-five A.” These subsections are not applicable to political subdivisions which accept § 69.

As amended the definition reads: “ (7) ‘Insurer,’ any insurance company, reciprocal, or interinsurance exchange, authorized so to do, which has contracted with an employer to pay the compensation provided for by this chapter. The term ‘Insurer’ within this definition shall include, wherever applicable, a self-insurer, the commonwealth and any county, city, town, or district which has accepted the provisions of section sixty-nine of this chapter” (emphasis supplied). See Burley’s Case, 302 Mass. 46, 48, and Stolts’s Case, 325 Mass. 692, 693, 695.

“Any county, city, town or district which accepts this section may provide for payment of compensation of certain or all of its employees by insurance with an insurer, subject, however, to the provisions and limitations of this section” (emphasis supplied).