Home PHILIP W. PRENEVEAU [Note 1] vs. E. A. WILSON CO. & another. [Note 2]

353 Mass. 766

January 5, 1968

The sole question is whether there was error in directing verdicts for the defendants on the ground that G. L. c. 152, Section 18, bars the action. The plaintiff was an employee of Coleman which, under its contract with the Commonwealth to build substructures for a bridge across the Merrimack River, erected cofferdams into each of which concrete was poured from a "transit mix" truck on the river bank by means of a steel chute extending from the river bank to the cofferdam. Attached to the rear of the truck was a chute (four or five feet long) which was hinged so that it could be swung out from the truck and "lined up" with the steel chute, one end of which rested on I-beams on the river bank. There was thus gravity flow of the concrete from the truck to the cofferdam. Wilson was under contract to supply concrete to Coleman for the job. Coleman's despatcher told Barton where to deliver concrete each day. The plaintiff's job was to guide the truck into position by hand signals to Barton and then to unfasten and swing out the truck chute. About 7 A.M. on August 28, 1962, while the plaintiff was going behind the stopped truck to unfasten the chute, the truck rolled back and injured him. It is undisputed that the injury took place in or about the premises where Coleman was doing its work, that both Coleman and Wilson are insured, that the plaintiff had not reserved his common law rights, and that he has received benefits under the act. We think it is plain that under G. L. c. 152, Section 18, as construed and discussed in McPadden v. W. J. Halloran Co. 338 Mass. 189 , there was "common employment." The verdicts were correctly directed.

Exceptions overruled.


FOOTNOTES

[Note 1] Preneveau was an employee of Coleman Brothers Construction Co., Inc. (Coleman).

[Note 2] Albert Barton the operator of the "transit mix" truck owned by E. A. Wilson Co. (Wilson).

Home FRANCIS DORAN vs. A. B. MADDISON CO., INC. & others.

353 Mass. 766

January 11, 1968

On the record of this case as it has reached us it is impossible to determine whether there was liability on the part of any of the defendants, for all of whom the judge directed verdicts at the conclusion of the evidence. The evidence left it wholly a matter of conjecture whether any defendant was responsible for an alleged window defect which caused the injury to the plaintiff.

Exceptions overruled.

Home ANGELO G. MARRONE vs. RAND-WHITNEY CORPORATION.

353 Mass. 766

January 31, 1968

The plaintiff was struck by an automobile owned and driven by one Miller, an employee of the defendant. In an action for injuries sustained, the jury returned a verdict for the plaintiff. The defendant excepted to the admission of evidence, to the denial of its motion for a directed verdict, and to portions of the charge to the jury. All of the exceptions pertain to the issue of the defendant's responsibility for Miller's negligence. The accident occurred while Miller was driving his car during his regular working hours on an errand

Page 767

for the defendant. The defendant's comptroller was called as a witness by the plaintiff (G. L. c. 233, Section 22) and testified, over the defendant's objection, that he instructed Miller as to what route to follow, and that he could have told Miller how to drive his car en route. Commonwealth v. Makarewicz, 333 Mass. 575 , 590. The corporate officer who sent Miller on his errand was a logical person to be cross-examined as to the degree of control which the defendant could exercise over Miller. "The test of the relation [of master and servant] is the location of the power of control." Marsh v. Beraldi, 260 Mass. 225 , 231. The testimony of the comptroller warranted the jury in finding that the power of control was in the defendant. The trial judge charged the jury that the relevant "small particulars" (Reardon v. Coleman Bros. Inc. 277 Mass. 319 , 322) were those "pertaining to use and safety because, of course, we are talking in a context of safety in the operation of a motor vehicle." We cannot conceive of relevant particulars not pertaining to use or safety. There was no error.

Exceptions overruled.