White v. George A. Fuller Co.

De Courct, J. At the time of the accident the defendant, as general contractor, was erecting a large building in Boston. The plaintiff’s employer, the National Fireproofing Company, was one of twenty-three subcontractors furnishing work or materials under contracts with the defendant. The plaintiff, while at work in the building, was struck by a plank which was negligently dropped by one of the defendant’s employees; and he brings this action of tort at common law. Compensation insurance was carried by the defendant and notices thereof were properly posted on the-building; but apparently the fireproofing company was not insured. The sole question before us is whether the plaintiff’s only rights as against the defendant are those arising under the workmen’s compensation act. St. 1911, c. 751, Part III, § 17, of the act provides in part as follows: “If a subscriber enters into a contract, written or oral, with an independent contractor to do such subscriber’s work, or if such a contractor enters into a contract with a subcontractor to do all or any part of the work comprised in such contract with the subscriber, and the association would, if such work were executed by employees immediately employed by the subscriber, be liable to pay compensation under this act to those employees, the association shall pay to such employees any compensation which would be payable to them under this act if the independent or subcontractors were subscribers.” Accordingly the plaintiff, as one of "such employees,” was entitled to compensation from the defendant, who was a subscriber. King’s Case, 220 Mass. 290. Comerford’s Case, 224 Mass. 571. It happened in this instance that the plaintiff’s injury was caused by an employee of this. — 4 — defendant. But the liability of the defendant to compensate the plaintiff under the act would be the same if the careless workman were an employee of any of the twenty-three subcontractors engaged on the building. The reason for thus putting upon the general contractor a broad responsibility to all the workmen employed on the building is stated by the commission that framed the act, as follows: “Section 17 provides that an employer shall be liable to.pay compensation to employees of a contractor who is performing part of the work of the employer on the premises of the employer or on premises under his control. The object of this section was to prevent the possibility of defeating the act by hiring an irresponsible contractor to carry on part of the employer’s work.” Report of Massachusetts Commission, on Compensation for Industrial Accidents, 1912, page 52. For the full protection of all the workmen on the building, as to them the liabilities of an employer were placed on the defendant general contractor by § 17. The contention of the plaintiff in effect is, that while the statute makes the principal contractor responsible to him as an employer, and practically compels such contractor to carry insurance for his benefit, yet it denies that contractor the immunity from common law liability which is afforded to employers generally. Such a one-sided interpretation of the act is not to be adopted unless the language clearly requires it. As was said in King v. Viscoloid Co. 219 Mass. 420, 422, "It was undoubtedly the intention of the Legislature by that statute to take away from employees who should become subject to its provisions all other remedies that they had against their employers for injuries happening in the course of their employment and arising therefrom, and to substitute for such remedies the wider right of compensation given by the act.” See also Cox’s Case, 225 Mass. 220. And if the employee of a subscriber wishes to retain a common law right of action to recover damages for personal injuries, he must so notify his employer in writing in accordance with Part I, § 5. Young v. Duncan, 218 Mass. 346. Barry v. Bay State Street Railway, 222 Mass. 366. See Cripps’s Case, 216 Mass. 586. We are of opinion that on this particular work and so far as concerns the waiving of his right of action at common law, the plaintiff must be considered an “employee” of the defendant — 5 — within the meaning of Part I, § 5. The general definition of “employee” in Part V, § 2, is not applicable where “a different meaning is plainly required by the context.” By force of Part III, § 17, the plaintiff was given the same rights as the immediate employees of the defendant. It is not to be assumed that the Legislature intended to impose upon the general contractor greater liability to the workmen of independent contractors than to his own immediate employees. Apparently it was intended that the employee should take the statutory rights subject to the statutory limitations. He must either give the notice, and take the chances of common law remedies, or be bound by the provisions of the act. And see St. 1911, c. 751, Part III, § 15. The judge rightly directed a verdict on the ground that the plaintiff’s only rights as against the defendant arose under the workmen’s compensation act. In accordance with the terms of the report, judgment must be entered on the verdict for the defendant. So ordered.