Langevin's Case

326 Mass. 43 (1950) 91 N.E.2d 920

JAMES E. LANGEVIN'S CASE.

Supreme Judicial Court of Massachusetts, Suffolk.

April 4, 1950. May 25, 1950.

Present: QUA, C.J., LUMMUS, WILKINS, WILLIAMS, & COUNIHAN, JJ.

J.L. Fitzpatrick, for Maryland Casualty Company.

No argument nor brief for the claimant or for Aetna Casualty and Surety Company.

LUMMUS, J.

The question in this case is whether the employee, when injured, was an employee of a corporation called the Jere Healey Estate, Inc., which was insured by Maryland Casualty Company, or of Cashman Brothers, a corporation, which was insured by Aetna Casualty and Surety Company. The single member and the reviewing board held that the employee was an employee of Jere Healey Estate, Inc., and ordered Maryland Casualty Company to pay compensation. The Superior Court entered a decree accordingly. The insurer, Maryland Casualty Company, appealed.

General Laws (Ter. Ed.) c. 152, § 1 (4), as appearing in St. 1945, c. 369, defines "employee" as "every person in the service of another under any contract of hire, express or implied, oral or written," with certain immaterial exceptions. If one at every moment, with respect to every detail, is bound to obedience and subject to direction and control, as distinguished from a right of inspection and insistence that the contract be performed or a right to designate the work to be done under the contract, then he is a servant or employee. McDermott's Case, 283 Mass. 74, 76.

The evidence, which was not contradicted, may be summarized as follows. The employee had worked for the Jere Healey Estate, Inc., for fourteen years as a truck driver, delivering coal, and as a gardener. His foreman there, one Doyle, at times told him to take his truck to Cashman Brothers and to work for them. While working for Cashman Brothers, he reported nearly every morning to Doyle, and was told where he was to work that day. But the manager or a foreman for Cashman Brothers directed him in his work. He was hurt on July 19, 1948, while shoring up a floor in one Flynn's house, a job being done by Cashman Brothers. The employee and a foreman for Cashman Brothers were the only persons present. The employee was paid by the Jere Healey Estate, Inc., even when working for Cashman Brothers, and that estate charged Cashman Brothers for his work. The two corporations were closely connected in ownership, and worked in harmony.

The single member and the reviewing board found and ruled (Pequod Realty Corp. v. Jeffries, 314 Mass. 713, 718) that the relation of employer and employee existed between the Jere Healey Estate, Inc., and Langevin when he was hurt, and impliedly that it did not exist between Cashman Brothers and him. These findings were not warranted if the single member believed the uncontradicted evidence above described.

In Coughlan v. Cambridge, 166 Mass. 268, 277, this court said, "It is well settled that one who is the general servant of another may be lent or hired by his master to another for some special service, so as to become as to that service the servant of such third party. The test is whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master or becomes subject to that of the party to whom he is lent or hired." In accord are many cases, but only a few need be cited. Shepard v. Jacobs, 204 Mass. 110, 111, 112. Berry v. New York Central & Hudson River Railroad, 202 Mass. 197, 202, 203. It is not decisive that he was paid by the one whose general servant he is. Hasty v. Sears, 157 Mass. 123, 124. And it is not decisive whether the one to whom he is lent or hired actually exercises control, if he has the right to do so. Delory v. Blodgett, 185 Mass. 126, 128. The requirement that, to become the servant of the one to whom he is lent or hired, the servant must assent to the change of masters, is satisfied in the present case. Abbott v. Link-Belt Co. 324 Mass. 673, 677.

An exception to the foregoing general rule has been established in this Commonwealth. "Drivers of horses, automobiles, locomotives and perhaps other vehicles of travel, when lent with the vehicles presumptively remain the servants of the general employer and are subject to his control in so far as pertains to the care, management and preservation of the property." Mahoney v. New York, New Haven & Hartford Railroad, 240 Mass. 8, 10-11. This exception has often been applied. Wall's Case, 293 Mass. 93: Emack's Case, 232 Mass. 596, 598. Shepard v. Jacobs, 204 Mass. 110, 112. Dutton v. Amesbury National Bank, 181 Mass. 154, 160, per Knowlton, J. The general rule is distinguished in Pigeon's Case, 216 Mass. 51, 54, by saying that "In that class of cases no property of the general employer was entrusted to the agent to be used in the service of the new employer." In the present case, although the employee took his truck into the service of Cashman Brothers, his injury did not take place while he was on the truck, but while he was working in a house. It was not connected with the care or management of the truck. In Scribner's Case, 231 Mass. 132, the employee of an ice company was lent with horses and a wagon to a coal company, but was hurt by being hit by a shovel in the hands of an employee of the coal company. Since the injury had no connection with the horses and wagon, it was held that the employee was in the service of the coal company. A similar result should be reached in the present case.

Pursuant to agreement and an order by the single member, the Maryland Casualty Company has been paying compensation to the employee under the provisions of § 15A of the workmen's compensation act, and now claims reimbursement from the Aetna Casualty and Surety Company. The decree is reversed, and the case is remanded to the Industrial Accident Board with directions to make findings upon all the evidence as to employment of the employee by Cashman Brothers, and if such employment is found, as to the amount of reimbursement due to the Maryland Casualty Company from the Aetna Casualty and Surety Company under said § 15A, and for further proceedings not inconsistent with this opinion.

So ordered.