Gauss v. HN Hartwell Co. Inc.

338 Mass. 353 (1959)

155 N.E.2d 415

KATHLEEN M. GAUSS, administratrix, vs. H.N. HARTWELL CO., INC.

Supreme Judicial Court of Massachusetts, Suffolk.

December 4, 1958.

January 14, 1959.

Present: WILKINS, C.J., RONAN, WILLIAMS, COUNIHAN, & WHITTEMORE, JJ.

Edward J. Barshak, for the plaintiff.

Philander S. Ratzkoff, for the defendant.

*354 WHITTEMORE, J.

These are the plaintiff's exceptions to the direction of verdicts for the defendant in an action of tort for negligently causing the death and conscious suffering of the plaintiff's intestate, William E. Gauss. The case, like McPadden v. W.J. Halloran Co., ante, 189, involves application of the doctrine of common employment under § 18 of the workmen's compensation act (G.L.c. 152) and is controlled by that case. There was no error.

The jury could have found facts as follows: Gauss was an employee of Eastern Fuel Company (Eastern) which was a wholly owned subsidiary of the defendant (Hartwell). Hartwell's business was "wholesale coal." Eastern "was a retail coal company." Pursuant to an arrangement between Eastern and Hartwell, Gauss had on several occasions filled a coal truck of Eastern from a hopper under Hartwell's control on the Mystic docks. He was engaged in such activity on August 14, 1953, when the accident occurred which caused his death. The coal was to be delivered to a customer of Hartwell to whom the coal was being sold by Hartwell and the delivery was to be in consummation of that sale "under an agreement whereby the defendant had hired ... [Eastern] to make the delivery from the Mystic docks to ... [the customer's] place of business." Hartwell owned no trucks. Except for the occasions when purchasers "picked up coal for themselves" Hartwell used transportation companies to deliver coal sold by it. Some of Hartwell's customers were retail coal dealers who used their own trucks to "pick up" at the Mystic docks coal sold to them by Hartwell. In terms of total sales "it was not fair to say that most of the sales of coal made by ... [Hartwell] in 1953 were to retailers." Both Hartwell and Eastern were insured under the act and at the time of the trial Gauss's dependents had been receiving benefits from Eastern's insurer. Gauss had not reserved common law rights.

We think that, as in the McPadden case, it was plainly shown that the work which the subcontractor was doing was immersed in the work which the principal contractor *355 had undertaken to do as a regular part of its business. The evidence required the conclusion that Hartwell regularly contracted to deliver coal to those of its customers who did not call for their own coal. The distinction between such a case and other transportation cases where the issue was held to be for the fact finder is stated in the McPadden decision. That Eastern was wholly the corporate creature of Hartwell reinforces the conclusion in this case.

It is not necessary to determine whether, notwithstanding the aspects of the evidence which strongly suggest the contrary, there is any reasonable basis for a finding of the defendant's negligence.

Exceptions overruled.