Beauregard v. Benjamin F. Smith Co.

Hammond, J. This action was brought under the so called employers’ liability statute by the parents of one Beauregard, deceased, who were dependent in part at least upon him for support, to recover damages for his death. The case was submitted to the jury upon the first and second counts of the declaration, the first alleging defective ways, works or machinery, the second negligence of a superintendent. One of the grounds of defense was that at the time of the accident, December 13, 1909, the deceased was not in the employ •of the defendant. While the evidence upon this branch of the case was conflicting, still the jury could properly have found that the assignment made of the building contract by the defendant to the B. F. Smith Construction Company, hereafter for convenience called the new company, was made in good faith; that, in accordance therewith, at the time of the accident the defendant had entirely ceased to have anything whatever to do with the work, that none of the ways, works or machinery was owned by the defendant or used in its business, but all were owned, used and controlled exclusively by the new company, and that the deceased and all the persons engaged with him in the work, including all those for whose negligence the plaintiffs’ attempt to hold the defendant answerable, were actually in the exclusive employ of the new company. In this state of the evidence as to this branch of the case the jury were instructed in substance that, even if the jury should thus find, still the plaintiff would not thereby be barred from recovery, if the deceased had no knowledge of the change of his employer or was not put upon his inquiry with reference to such change. The record fairly raises the question whether this instruction was correct. [264] At the time of the contract of service between the deceased and the defendant certain obligations, some at common law and some under the statute, were entered into by the defendant. One was that of paying the deceased his wages during the continuance of the contract. Another was the statutory liability as to the condition of the ways, works or machinery and as to the conduct of the superintendent, both during the continuance of the contract. In cases like the present the contract continues until terminated by one party with the knowledge of the other or at least under circumstances putting him on inquiry. Not until it has been so terminated is either party released from the burden. This rule is applicable not only to the payment of wages, but to the fulfilment of the other contractual obligations. The delinquent party is held not on the actual condition of things, but on their condition as the other party has the right under the contract to assume them to be. The rule is founded upon principles of justice and fair dealing. The instruction was correct. Perry v. Simpson Waterproof Manuf. Co. 37 Conn. 520. Marietta & North Georgia Railroad v. Hilburn, 75 Ga. 379. Missouri, Kansas & Texas Railway v. Ferch, 18 Tex. Civ. App. 46. See also for a discussion of some of the general principles of the subject, Nickerson v. Russell, 172 Mass. 584, and Berry v. New York Central & Hudson River Railroad, 202 Mass. 197, and cases therein cited. 26 Cyc. 1087 and cases cited. The testimony of the deputy sheriff was properly admitted. It had a bearing on the question whether the defendant was still engaged in the work, and had no reference to his official return of the service of the notice. The exception to the exclusion of the question put to the witness Burton, as to who was doing the work, must be qverruled. In the first place it does not appear what the answer would have been, and secondly the judge ruled that the witness might state all the facts and circumstances bearing upon the question as to who was doing the work. That was enough. All the other exceptions are waived. Exceptions overruled.