
    APPELLATE DIVISION OF THE NORTHERN DISTRICT
    DIANA STRATIS, p.p.a. vs. McLELLAN STORES COMPANY LUCY STRATIS vs. SAME
    Essex, ss. Northern District
    District Court of Southern Essex
    Argued November 3, 1941
    Opinion filed December 9, 1941.
    Present: Jones, P. J., Pettingell. & Sullivan, JJ.
    
    
      
      W. W. Pyne, for the Plaintiffs.
    
      W. Boyle, J. W. Sullivcm, for the Defendant.
   Pettiegell, J.

These are two actions of tort consolidated in one report. The minor plaintiff sues to recover for personal injuries occasioned by the negligence of the defendant. The action of the mother, the other plaintiff, is for consequential damages. No issue is raised as to the damages in either case, the only issues presented being questions of law as to the procedure which the plaintiffs should have chosen to enforce their rights. There was a finding for each plaintiff.

During the trial a stipulation was entered into by counsel in which the following facts were agreed upon to be considered in determining the rights of the parties:

“that the minor plaintiff was employed by the A. & S. Luncheonette, Inc., a concessionaire who hired space from the defendant in the defendant’s store; that the concessionaire hired and fired its own employees; that the defendant had exclusive control of the place of the alleged defect; that both the concessionaire and the defendant carried insurance on its employees in accordance with the Workmen’s Compensation Act, that such insurance was in effect at the time of the alleged accident and each of them paid its own premiums for the workmen’s compensation insurance; that the plaintiff did not reserve her common law rights under General Laws, Chapter 152, Section 24. The arrangement between the A. & S. Luncheonette, Inc. and the defendant is set forth in a written agreement called a Concession Agreement and is attached to this report; this agreement was admitted in evidence with the consent of both parties.”

The defendant’s chief contention is that the actions cannot succeed because the minor plaintiff is an employee who has not reserved her rights at common law. It was admitted by the stipulation entered into by counsel that the employee plaintiff’s employer carried Workmen’s Compensation Insurance, that her employer was employed by the defendant, who also carried Workmen’s Compensation Insurance. Thus there was a “common employer” who was an “insured person” as in the cases of Dresser v. New Hampshire Structural Steel Co., 296 Mass. 97, at 99-101, Cozzo v. Atlantic Refining Co., 299 Mass. 260, at 267, Clark v. M. W. Leahy Co. Inc., 300 Mass. 565, at 568, and Carlson v. Dowgielewicz, 304 Mass. 560, at 562.

There are two issues of fact which if determined adversely to the defendant, are decisive of the case. Caton v. Winslow Bros. & Smith Co., Mass. Adv. Sh. (1941) 925, at 928. If the employee’s employer was an independent contractor as that term is used in General Laws, Chapter 152, Section 18, and if the work that employer was to do under his contract with the defendant was work which was a part of the defendant’s regular trade or business, and not work merely ancillary or incidental thereto, the employee plaintiff cannot recover at common law, such an employee’s recovery being only under General Laws, Chapter 152, Section 18. White v. George A. Fuller Co., 226 Mass. 1, at 3-5. Bindbeutel v. L. D. Willcutt & Sons Co., 244 Mass. 195, at 196, 199. Caralano v. George F. Watts Corp., 255 Mass. 605, at 606. Slavinsky v. National Bottling Torah Co., 267 Mass. 319, at 321. Bresnahan v. Barre, 286 Mass. 593, at 596. Dresser v. New Hampshire Structural Steel Co., 296 Mass. 97, at 99, 101. Pimental v. John E. Cox Co. Inc., 299 Mass. 579, at 585. Clark v. M. W. Leahy Co. Inc., 300 Mass. 565 at 568, 569. Carlson v. Dowgielewicz, 304 Mass. 560, at 562.

The first issue to be considered is the nature of the contract between the plaintiff’s employer and the defendant. The issue is raised by the denial of the defendant’s third requested ruling, that

“A finding that the defendant was a general contractor and the A. & S. Luncheonette Co. (the plaintiff’s employer) an independent or subcontractor within the provisions of Section 18 of Chapter 152 of the General Laws is legally warranted by the evidence.”

The parties in their briefs and oral arguments have treated this requested ruling as meaning that a finding was warranted that the A. & S. Luncheonette, Inc. was an independent contractor whose employees were as a matter of law swept within the coverage of the defendant’s insurance. The trial judge apparently had the same point of view as he ruled without request “that the plaintiff is not precluded from recovering by reason of General Laws, Chapter 152, Section 18.”

He gave also, the plaintiff’s second requested ruling that

“As a matter of law the defendant is an 'insured person’ within the terms of Section 18 of Chapter 152, of the General Laws.”

He then made findings of fact as follows:

“The business carried on by the A. & S. Luncheonette Inc., by whom the plaintiff was employed, was not a part of or process in the trade or business carried on by the defendant. The A. & S. Luncheonette Inc. was not doing any work for the defendant.”

This combination of rulings and findings in effect are a decision that the defendant was an insured person (see Dresser v. New Hampshire Structural Steel Co., 296 Mass. 97; Cozzo v. Atlantic Defining Co., 299 Mass. 260, at 267; Clark v. M. W. Leahy Co. Inc., 300 Mass. 565, at 568), but that there was no evidence which warranted a finding that the A. & S. Luncheonette, Inc. was an independent contractor or subcontractor doing a part of the defendant’s common or general trade or business. .Because the plaintiff’s employer, under its contract with the defendant, was doing work which was ancillary or incidental to the defendant’s general work, the trial judge ruled that Chapter 152, Section 18, of the General Laws did not apply and the plaintiff’s action in tort was proper.

If, however, there was evidence warranting a finding that the A. & S. Luncheonette, Inc. was an independent contractor or subcontractor having such a contract as made the provisions of General Laws, Chapter 152, Section 18, applicable, then the trial judge’s finding of fact in that respect cannot be supported, and his finding, quoted above, not being warranted by the evidence, was not a sufficient reason for the denial of the defendant’s third requested ruling. In that event the denial was prejudicial error.

The contract, although long, does not furnish much information on this question. It says nothing about the nature of the business of the defendant. It grants to the A. & S. Luncheonette Inc. a license and concession to install and maintain, in space to be designated by the defendant in its store, a luncheonette and soda fountain. Nothing is said about the general location of the space to be designated, although the defendant reserves the right to change the location, nor is anything said about the nature of the service to be furnished by the A. & S. Luncheonette, Inc. whether to store patrons only, or to employees, or to the general public. As far as the contract is concerned the A. & S. Luncheonette, Inc. had the right to serve anyone and everybody. The grant is not exclusive, and the contract in terms does not prevent similar grants to others. It does not, however, in any way, set up any control of the business, its management or conduct, the employment of help, or prescribe in any way the manner in which it shall be carried on. It was agreed that the A. & S. Luncheonette, Inc. “hired and fired its own employees.”

On the other hand the contract provides for a close oversight to be maintained by the defendant over the business of the defendant, as to its finances, prohibiting any assignment, pledging, mortgaging or hypothecating, and calling for the deposit daily in the defendant’s cash register of the total income from the business, of which the defendant is to pay back daily to the A. & S. Luncheonette Inc. eighty-eight per cent of the gross income for the running expenses of the business.

One clause of the agreement referred to in the foregoing stipulation provides that it is not “to create any partnership or joint venture between the parties, nor to create any interest in the licensee as a tenant in the said space (to be allotted by the defendant for the Licensee’s use), nor any relation of principal and agent between the Company and Licensee’s agency nor relation of master and servant between the Company and Licensee’s employees and servants ; and this notwithstanding the inclusion of the Company’s name in any Workmen’s Compensation Insurance Policy.” It is clear that under this clause of the agreement, the defendant had no control of the employees of the A. & S. Luncheonette, Inc.

What rights the A. & S. Luncheonette, Inc. acquired under the contract was chiefly the right to do business in the defendant’s store at a profit for the defendant. A fair interpretation is that the A. & S. Luncheonette, Inc. was to do business with anyone and everyone, in its own way and by its own employees as long as the defendant received its twelve percent of the gross income per annum and is otherwise fully protected.

The oral testimony at the trial was even more scanty with regard to the relation between the parties than is the contract. There was evidence that the store is a department store, “selling a general line of articles and merchandise to the public; that food and soft drinks were sold in the store by the A. & S. Luncheonette, Inc. under a lease from the defendant.”

We have two conflicting points of view, the findings of the trial judge that the business of the A. & S. Luncheonette, Inc. was not a part of or process in the trade or business carried on by the defendant, and that the A. & S. Luncheonette, Inc. was not an independent contractor, and the contention of the defendant that the evidence warranted a finding that the defendant was a general contractor, the A. & S. Luncheonette, Inc. an independent contractor, and the contract one within the provisions of General Laws, Chapter 152, Section 18.

The contract defines several things that the A. & S. Luncheonette, Inc. is not. It is not a partner with the defendant, nor a joint adventurer with it, nor is it a tenant. As to the employees of the A. & S. Luncheonette, Inc. the defendant is not a principal or master. These mentioned relations, however, do not determine the case. In Ibis particular the issue is whether the A. & S. Luncheonette, Inc. was an independent contractor as contemplated by the statute, which must mean one, “who, exercising an independent employment, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer, except as to the result of his work.” Bouvier Law Dictionary, Vol. II, (3d ed.) 1544. Crocker v. MacLean, 300 Mass. 255, at 257, 258.

From the point of view of General Laws, Chapter 152, the A. & S. Luncheonette, Inc. was an independent contractor. All of the attributes of that relation were present. No other finding was warranted by the evidence. That part of the defendant’s third requested ruling should have been given.

The third request did not in terms raise the issue of the nature of the war-k done for the defendant, whether ancillary and incidental to the general work of the defendant or a part of its general trade or work. That request, however, specified that the A. & S. Luncheonette, Inc. was an independent contractor or subcontractor “within the provisions of Section 18 of Chapter 152 of the General Laws”. This reasoned out means, within the operation of the provisions of that section of Chapter 152. There can be no doubt that that was the interpretation in the mind of the trial judge, because of his ruling “that the plaintiff is not precluded from recovering by reason of General Laws, Chapter 152, Section 18.”

The defendant operated a general store. Its primary and principal purpose was to sell things at a profit. “And the customary practice of a business of a person or corporation in carrying on its business has a material bearing upon whether a particular activity is a ‘part of or process in’ the ‘trade or business’, or ‘merely ancillary and incidental thereto’.” Cozzo v. Atlantic Refining Co., 299 Mass. 260, at 266. Caton v. Winslow Brothers & Smith Co., Mass. Adv. Sh. (1941) 925, at 928, 929. Very apparently the defendant was in business to make money by selling personal property. The contract with the A. & S. Luncheonette, Inc. provided one way in which such sales were to be made in the defendant’s store at a substantial profit to the defendant. The work called for by the contract was no venture foreign to the other business of the defendant. It supplemented that business and drew persons there who might -become customers in other departments. It was not a temporary arrangement but one of permanence, if it could be done at the price dictated by the contract. No one else but the defendant was benefited by it and the profits received went into the defendant’s general profit account and not to any capital investment in plant or equipment. It was not work to extend, alter or enlarge the premises but purely an enlargement of its other business.

We are of opinion that the facts place the case within the principle set forth in Comerford’s Case, 224 Mass. 571, at 573. S. C. 229 Mass. 573, at 574, 575. Willard v. Bancroft Realty Co., 262 Mass. 133, at 135. Cozzo v. Atlantic Refining Co., 299 Mass. 260, at 266, 267. Clark v. M. W. Leahy Co. Inc., 300 Mass. 565, at 570. Macaleese’s Case, 301 Mass. 25, at 26, 27.

The plaintiff’s injury was compensable under General Laws,. Chapter 152. It was received in the course of the plaintiff’s employment on premises where the plaintiff had the right to be. Sundine’s Case, 218 Mass. 1, at 4, 5. White v. E. T. Slattery Co., 236 Mass. 28, at 32, 34. Latter’s Case, 238 Mass. 326, at 327, 328. Haskin’s Case, 261 Mass. 436, at 437. Bresnahan v. Barre, 286 Mass. 593, at 595. Watkins v. New York, New Haven & Hartford R. R., 290 Mass. 448, at 450, 451. Mannering’s Case, 290 Mass. 517, at 519. Sylvia’s Case, 298 Mass. 27, at 28.

As there was evidence warranting the finding requested by the defendant, there was prejudicial error in the denial of the defendant’s third requested ruling considered with the further ruling of the trial judge that the plaintiff was not precluded from recovery by General Laws, Chapter 152, Section 18. The denial and the ruling, taken together, demonstrate that the trial judge was applying as the law of the case, principles of law which were not applicable to the evidence heard by him after his attention had been called by the third request to the proper rule of law applicable.

There having been prejudicial error in the denial of a ruling which should have been given, the finding for the plaintiff Diana Stratis p.p.a. must be vacated. As the giving of that request would have necessitated a finding for the defendant, judgment should now be entered for it.

The other plaintiff, Lucy Stratis, stands in a different position. She was not an employee of any of the parties mentioned in General Laws, Chapter 152, and that chapter does not apply to her. King v. Viscoloid Co., 219 Mass. 420, at 422, 425. Slavinsky v. National Bottling Torah Co., 267 Mass. 319, at 322. Her action is at common law, unaffected by any statute, and is a right to recover for damage caused to her by the employee’s injury. Erickson v. Buckley, 230 Mass. 467, at 470, 471. McGreevey v. Boston Elevated Ry., 232 Mass. 347, at 349, 350. She can recover upon proof of her daughter’s due care and the defendant’s negligence. Thibeault v. Poole, 283 Mass. 480, at 484, 485.

Nothing in the report raises the issue of due care; the only issue of negligence is that raised by the defendant’s fourth request, that a finding of negligence is not warranted by the evidence. As has been pointed out, it is admitted that the employee received her injury while she was properly on the premises where she was supposed to be as a part of her employment and before she had ended her work. See, also, the cases already cited on the compensable nature of the employee’s injury. It is admitted that the defendant had exclusive control of the place of the alleged defect. The plaintiff’s daughter undoubtedly had the right of a business invitee in using the stairs. Watkins v. New York, New Haven & Hartford R. R., 290 Mass. 448, at 450. Re-statement of Torts, Section 332 h. The defendant owed her the same duty he owed his own employees. Brogna v. Capodilupo, 279 Mass. 586, at 590, 591. Stern v. Swartz, 283 Mass. 436, at 437. The only issue of negligence raised by the fourth request is that the evidence did not describe an actionable defect. There was ample testimony that the stairs were badly worn. In Hamilton v. Cambridge, 219 Mass. 418, at 419, testimony that sidewalk bricks were “worn down” was held not to be a sufficient description of a defect, but in at least two later cases, a “worn” condition of sidewalks was held to be a good description of a: defect, and an indication of a condition, continued long enough to have given the municipality sufficient notice. In Cook v. Boston, 266 Mass. 159, at 161, testimony that the sides of a hole were “worn smooth” was so held while in Duffy v. Boston, 275 Mass. 13, at 14, testimony that a curbing was “worn down” was similarly held. See, also, Russo v. Rizzo, 302 Mass. 177, at 178.

In the case at bar the evidence went further; the treads were not only badly worn but one was worn back in its depth as far as to be “about even with the riser” which supported it. In ordinary experience such a description means that from one-half of an inch to an inch of the wood of the tread was worn away. It was further described as “hollowed out”. Furthermore, one tread was so badly worn that one stepping on it was thrown out of balance and “pitched” forward. Stairs which because of their lay-out and construction, have a cadence which is unusual are not defective if their fabric is sound and substantial and they are otherwise in good condition. Pastrick v. S. S. Kresge Co., 288 Mass. 194, at 196, 197. The situation is different when a fall occurs at a worn place. As the court said in Marquis v. John Nesmith Real Estate Co., 300 Mass. 203, at 206, “while the question is close on the point whether the plaintiff fell where there was a worn place and where people walk, a finding was warranted that there was a causal connection between the defective condition and the injury to the plaintiff. ’ ’ Stairs which by wear are rounded off at the edge so as to be slippery have been found to be defective. Bennett v. Jordan Marsh Co., 216 Mass. 550, at 551. In the case at bar the employee did not slip but was “pitched” forward by the worn condition of the tread on which she stepped. In Ruzzo v. Rizzo, 302 Mass. 177, at 178, the plaintiff, because of the defective condition of the stairs, lost her balance and fell. Whether or not the worn condition of the stairs was the cause of the plaintiff’s fall was a question of fact. Mulloy v. Kay Jewelry Co., 289 Mass. 264, at 266. See, Cook v. Boston Elevated Ry., 256 Mass. 27, at 29. DuBois v. Boston Elevated Ry., 276 Mass. 98, at 99. Shrigley v. Boston Symphony Orchestra, Inc., 287 Mass. 300, at 303.

We are of opinion that there was evidence sufficient to warrant findings that there was an actionable defect and that the defendant was negligent in not discovering and remedying it. There was no prejudicial error in the denial of the defendant’s fourth requested ruling.

In the action of Diana Stratis, p.p.a., the finding for the plaintiff is to be vacated and judgment entered for the defendant.

In the case of Lucy Stratis, the report is to be dismissed.  