Zoulalian v. New England Sanatorium & Benevolent Ass'n ( 1918 )

Crosby, J.

This is an action for personal injuries received by the plaintiff while in the employ of the defendant and at work on a buzz planer.

The defendant is a corporation organized “for the purpose of founding a hospital or charitable asylum . . . for the care and relief of indigent or other sick or infirm persons . . . and in no manner directly or indirectly for private .profit or dividend paying, to any one.” It is plain that the objects of the corporation being benevolent and charitable, it must be held to be a valid public charity. Conklin v. John Howard Industrial Home, 224 Mass. 222. Thornton v. Franklin Square House, 200 Mass. 465. Farrigan v. Pevear, 193 Mass. 147, and cases cited. In New England Sanitarium v. Stoneham, 205 Mass. 335, it was held that the defendant in the case at bar was a charitable corporation and as such was exempt from taxation under R. L. c. 12, §5, cl. 3.

It is the contention of the plaintiff that the defendant is within the provisions of the workmen’s compensation act (St. 1911, c. 751, and acts in amendment thereof); but we are unable to agree with this contention. While it is provided by § 2 of Part I, that “The provisions of section one shall not apply to actions to recover damages for personal injuries sustained by domestic servants and farm laborers,” it does not follow that all other employees who may be injured in the course of their employment are within the terms of the act. Undoubtedly the rules of law declared by this court relating to persons injured while in the employ of charitable institutions may be changed by the Legislature, still that such change was made by the workmen’s compensation act is not to be inferred in the absence of a plain intention on the part of the Legislature to that effect.

It has often been held that certain persons or classes of persons are excepted by implication out of a statute expressed in general words, the rule being that where the words of a law in their common and ordinary significance are sufficient to include such persons or classes of persons “‘the virtual exception must be drawn from the intention of the Legislature, manifested by other parts of the law; from the general purpose and design of the law; and from the subject matter of it.’ ” Bradford v. French, 110 Mass. 365, 367. McCall v. Parker, 13 Met. 372, 381.

It never has been held in this Commonwealth that a charitable institution was liable for negligence; on the other hand, it has been expressly held that such institutions are not liable for the negligence of their servants or agents. McDonald v. Massachusetts General Hospital, 120 Mass. 432. Farrigan v. Pevear, supra, and cases cited.

In Commonwealth v. Rumford Chemical Works, 16 Gray, 231, at page 232, this court said: “But it is never to be presumed that the Legislature intended to make any innovations upon the common law further than is absolutely required upon a just interpretation of the provisions of its positive enactments. And this, it is said by Chancellor Kent, has been the language of the courts in every age. 1 Kent Com. (6th ed.) 464. In the decisions of our own, it has often been recognized as an established rule that a statute is not to be construed as a repeal of the common law unless the intent to alter it is clearly expressed.”

For many years before the enactment of St. 1911, c. 751, this court in numerous decisions had uniformly held that a charitable institution was not liable for personal injuries due to the negligence of its servants or agents; and it is to be assumed that the Legislature had the existing law in mind when the statute was passed. We are of opinion that, considering the statute as a whole, together with its manifest purpose and the objects sought to be accomplished by it, it was not intended thereby to change the law as it previously stood and include employees of charitable institutions. Hyde v. Gannett, 175 Mass. 177. The cases cited by the plaintiff were decided under the English workmen’s compensation act and cannot affect the question whether St. 1911, c. 751, applies to a valid public charity.

The presiding judge submitted to the jury certain questions to be answered by them, the fourth of which was as follows: “Was the danger in operating a buzz planer without a guard an obvious danger, that could be seen by reasonable observation on the part of the plaintiff ? ” The answer was in the affirmative. This finding makes it plain that the plaintiff is precluded from recovery, either under the employers’ liability act or at common law, apart from the fact that the defendant is a charitable corporation. As the jury have found that the danger of operating the planer without a guard was obvious and could be seen by reasonable observation on the part of the plaintiff, he must be held to have assumed the risk, even thoiigh he was unable to speak or understand the English language and was inexperienced. It is clear that any instructions or warning of the danger would not have informed him of anything which was not plainly to be seen; and he was a carpenter, and there is nothing in the record to' show that he was not a man of average intelligence. Chmiel v. Thorndike Co. 182 Mass. 112. Sullivan v. Simplex Electrical Co. 178 Mass. 35. Robinska v. Lyman Mills, 174 Mass. 432. Stuart v. West End Street Railway, 163 Mass. 391.

Although the plaintiff is not entitled to recover for the reasons previously stated, we do not mean to intimate that the defendant could be held liable for its negligence, or for the negligence of its servants or agents, — these questions need not be considered in view of the conclusions reached.

Exceptions overruled.