
    John Vergobbi & another vs. Joseph Corman Corporation.
    Suffolk.
    February 2, 1959.
    February 27, 1959.
    Present: Wilkins, C.J., Ronan, Spalding, Williams, & Cutter, JJ.
    
      Pleading, Civil, Replication. Practice, Civil, Judgment on the pleadings, Hearing without jury.
    An order that the plaintiff in an action file a replication to a certain paragraph of the defendant’s answer, "specifically setting forth in said replication what parts are admitted and what parts are denied as provided in G. L. c. 231, § 34,” was not complied with by a replication wherein the plaintiff “generally” denied the allegations of that paragraph and, “not waiving his general denial thereto,” specifically admitted certain facts alleged in the paragraph, averred ignorance of another fact alleged therein and neither admitted nor denied it, and did not mention specifically still another fact alleged therein. [609]
    In an action in which the plaintiff claimed a jury trial and filed a replication to the defendant’s answer by order of the court under G. L. c. 231, § 34, and the defendant then filed a motion for judgment on the replication, at the hearing of which it appeared that material issues of fact remained to be determined, it was reversible error on the part of the trial judge to hear evidence on and decide those issues without jury and to grant the defendant’s motion for judgment, even though the replication filed did not comply with the court's order for a replication. [609]
    Tort. Writ in the Superior Court dated September 30, 1957.
    The action was reported by Smith, J.
    
      Joseph P. Rooney, for the plaintiffs.
    
      Eugene C. McCabe, for the defendant.
   Wilkins, C.J.

This action of tort is reported on the correctness of rulings made by the judge before granting the defendant’s motions for judgment. The declaration contains two counts. In count 1 the plaintiff Vergobbi alleges that on or about May 14, 1957, while he was on a staging or scaffolding erected and maintained by the defendant at “Logan Airport” in Boston, the staging or scaffolding collapsed by reason of the defendant’s negligence, and he fell and was injured. In count 2 the plaintiff Robert W. Weber, Junior, makes identical allegations.

The defendant filed an identical answer to each which contains a general denial, a defence of contributory negligence, and a third paragraph, which reads: “And further answering, the defendant says that at the time alleged in the plaintiff’s declaration the plaintiff was an employee of the J. J. Crespi Co.; that the said J. J. Crespi Co. was a subcontractor of the defendant and was engaged in work which was a part of or process of [sic] the trade or business carried on by the defendant; that the defendant was the general contractor; and that both said J. J. Crespi Co. and the defendant were covered by the ‘workmen’s compensation act’ so called; that the plaintiff was injured while working for the said J. J. Crespi Co. and his injury arose out of and in the course of his employment as such; that the plaintiff •has been paid compensation under the provisions of c. 152 of the ‘workmen’s compensation act’ by the said J. J. Crespi Co. and therefore the plaintiff cannot recover in this action.”

Thereafter the defendant moved that each plaintiff file a replication to paragraph 3 of the respective answers. Orders were entered that each plaintiff file “a replication to paragraph No. 3 of the defendant’s answer, specifically setting forth in said replication what parts are admitted and what parts are denied as provided in G. L. c. 231, § 34.” Each plaintiff filed a replication reading as follows: “Now comes the plaintiff John Vergobbi [Robert W. Weber, Junior] and generally denies the allegations of paragraph 3 of the defendant’s answer. And further replying to the said paragraph, but not waiving his general denial thereto, the plaintiff specifically admits that at the time alleged in his declaratian the plaintiff was an employee of Joseph J. Crespi; that the said Joseph J. Crespi was a subcontractor of the defendant; that the said Joseph J. Crespi was covered by the provisions of G. L. (Ter. Ed.) c. 152; that the plaintiff was injured while working for the said Joseph J. Crespi; and that the plaintiff has been paid compensation under the provisions of G. L. (Ter. Ed.) c. 152. And further replying to the said paragraph, but not waiving his general denial thereto, the plaintiff has no knowledge of whether the defendant was covered by the provisions of G. L. (Ter. Ed.) c. 152, and neither admits nor denies such.”

The defendant then filed motions for judgment on the replications. The judge states in his report that at the hearing on the motions it appeared that there were two issues: (1) whether the defendant was insured under the workmen’s compensation act; and (2) whether the injuries arose out of or in the course of employment which was a part of or process in a trade or business carried on by the. defendant contractor, Joseph Gorman Corporation, or merely ancillary and incidental to it.

The plaintiffs, who had filed claims of jury trial, objected to these issues being heard by the judge sitting without jury. The judge overruled the objection, and the plaintiffs excepted. At the hearing the plaintiffs agreed that the defendant was insured under the act.

After hearing evidence on the second issue, the judge found that at the time of their injuries the work in which the plaintiffs were engaged was a part of or process in the trade or business carried on by the defendant and not merely ancillary and incidental to it. See G. L. c. 152, § 18 (as amended through St. 1939, c. 93). Other findings were that the defendant, a general contractor which held no plumber’s license, had entered into a contract with the United States government, acting through the Department of Commerce, Civil Aeronautics Administration, to finish a floor of “New Cotitrol Tower Building”; that Crespi was employed by the defendant as the plumbing subcontractor; and that the plaintiffs were employees of Crespi.

The replications were not a compliance with the orders. Both the orders and the statute upon which they were expressly based required the plaintiffs to state what parts of the respective answers were admitted and what parts denied. As to some parts of the answers the plaintiffs endeavored to do both. Were it not for the statements in the replications that the denial was not waived, it might have been possible to interpret the replications as containing (1) an admission respecting those allegations expressly admitted and (2) a denial of the others. See Pell v. New Bedford Gas & Edison Light Co. 325 Mass. 239, 240-241. In the circumstances, however, it could not be ruled that the replications by express admission or failure to deny had admitted enough to permit the application of the rule of Adiletto v. Brockton Cut Sole Corp. 322 Mass. 110.

The plaintiffs were, and are, undoubtedly subject to non-suit for failing to file replications which comply with the orders. But the judge was not thereby empowered to proceed without jury to decide the remaining issues. The rulings on the plaintiffs’ requests presented questions as to the sufficiency of the evidence, which are not likely to arise a^am" Orders for judgment reversed. 
      
       “The plaintiff may, at any time before trial, file a replication to the answer, clearly and specifically stating any facts in reply to new matter therein; but, except as herein provided, no further pleading shall be required after the answer. Any new matter in avoidance of the action which the answer contains shall be considered to be denied by the plaintiff without a replication, unless the court, upon motion of the defendant, requires him to reply thereto, and to state what part, if any, he admits or denies.”
     