Charles A. Moschella vs. City of Quincy, 347 Mass. 80

Cutter, J. Moschella seeks damages from the city in this action of tort under Gr. L. c. 84, § 15, for injuries sustained on September 17,1960, because of a defect in a pub-lie way. The case was submitted on a written stipulation which meets the requirements of a case stated. See Hayes v. Lumbermens Mut. Cas. Co. 310 Mass. 81, 83; Quintin Vespa Co. Inc. v. Construction Serv. Co. 343 Mass. 547, 551-552. The judge made a finding for the city. Moschella, who filed a bill of exceptions and an appeal (see Gr. L. e. 231, § 96), cannot pursue both methods of review. Royal Paper Box Co. v.

Munro & Church Co. 284 Mass. 446, 449. We treat the judge’s finding as an appeal-able order for judgment (see United States Plywood Corp. v. Pioneer Display Co. 343 Mass. 150), dismiss the exceptions, and consider the appeal. Apart from the workmen’s compensation aspect of the case, all facts (as the city admits) are established which would entitle Moschella to recover under Gr. L. c. 84, § 15. Moschella was performing duties for his employer, Hol-brook Livestock Farm, Inc. (Holbrook).

While collecting garbage, he sustained serious injuries by reason of a defect in a public sidewalk which could have been found to have been controlled and negligently maintained by the city. The city was given timely notice. At the time of his injury, Moschella was employed by Holbrook, an independent contractor, to collect garbage from containers placed outside dwellings in the city. Before the contract with Holbrook became effective, the city had collected garbage, using its own employees and trucks.

Moschella was one of a crew of four men, employees of Hol-brook and not of the city, assigned to a truck owned by Holbrook. All were hired, paid, and supervised solely by Holbrook. The city made no independent charge to its inhabitants for the work done by Holbrook. The contract, Holbrook’s “only material connection with the [c]ity,” required Holbrook to provide workmen’s compensation for all persons employed under the contract. Moschella has received workmen’s compensation benefits from Holbrook’s insurer, which has taken no action against the city under Q-. L. c. 152, § 15.

The city in 1953 had accepted the provisions of Gr. L. c. 152, § 69, as amended. Moschella did not claim or receive workmen’s compensation from the city. The city contends that, as a common employer insured under Gr. L. c. 152, it is immune from an action brought by or on behalf of an injured employee of an independent contractor. Moschella contends that his injury was caused in “circumstances creating legal liability in” the city, that the city is “some person other than the insured,” that Hol-brook’s insurer has not proceeded to enforce the city’s liability, and that he may now do so in his own right under Gr.

L. c. 152, § 15. It is stipulated that if a judgment for Moschella is proper on the agreed facts, judgment is to be entered for him for $4,000. Otherwise judgment is to be entered for the city. There is no doubt that, on the stipulated facts, judgment for Moschella would be proper unless, as matter of law, he is barred by the so called “common employment” doctrine from obtaining judgment against the city. The “common employment” doctrine was restated in Clark v. M. W. Leahy Co.

Inc. 300 Mass. 565, 568, where it was said that c. 152, §§ 15,18, and 24, “in combination have resulted in the establishment of a rule governing common law actions for personal injuries suffered by employees of” certain persons insured under the Workmen’s Compensation Act. For present purposes the provisions of § 18 (as amended through St. 1939, c. 93) set out in the margin are controlling.

The common employment doctrine does not bar an action against the city under § 15, if Holbrook was engaged in an activity “ancillary and incidental to, and . . . no part of or process in, the trade or business carried on by the insured.” We think that the garbage collection was ancillary and incidental to any work which the city itself was conducting. Garbage collection by a municipality is, of course, a permitted governmental function which may become commercial in character in some circumstances. See Baumgardner v. Boston, 304 Mass. 100, 106-110.

In Quincy, however, although the city at one time had engaged in garbage collection, it no longer was so engaged at the time of the accident. By the arrangement with Holbrook the city had used its authority (G. L. c. 40, § 4, as amended through St. 1958, c. 613, § 2A) to make a contract “for the exercise of [one of] its corporate powers,” viz. “[f]or the disposal of its garbage . . . for a period not exceeding five years.” See G. L. c. 40, § 1, for applicability of § 4 to cities.

Although this service was in a sense a part of the city’s operations and constituted a service provided for Quincy’s residents without a separate charge, the city had no continuing direct participation in the work. That work could reasonably be found to have become ancillary and incidental to the remaining directly handled municipal functions. See Pimental v. John E. Cox Co. Inc. 299 Mass. 579, 582-586 (construction of a terminal for a freight forwarder); Cannon v.

Crowley, 318 Mass. 373, 375-377 (whether transportation of a general contractor’s large power shovel by an independent trucker was “ancillary” was a question of fact for the jury); Dubois v. Soule Mill, 323 Mass. 472, 474-477 (study, survey, and overhauling of a heating plant of a factory). See also Harrington v. H. F. Davis Tractor Co. 342 Mass. 675, 677-678 (informal agreement for demonstration on the job of a crane which owner wished to sell to a construction contractor). Cf. McPadden v. W. J. Halloran Co. 338 Mass. 189, 192-193; Van Bibber’s Case, 343 Mass. 443, 449.

Because we hold that there was no common employment, this is not a case where (see Carlson v. Dowgielewicz, 304 Mass. 560, 562), in any event, any compensation insurance (or liability as self-insurer) of the city, or of any common employer other than Holbrook, throws its “shadow over the whole work.” We thus do not reach two troublesome questions argued in the briefs, viz. (1) whether the city can be an “insured person” (see Gr.

L. e. 152, § 1 [6]) or a common employer insured under the act (see italicized language of § 69, fn. 2, supra) for purposes of §§ 15,18, and 24, and (2) whether there is any conflict between Saxe’s Case, 242 Mass. 290, 291, and statements made in Pettiti v. Edward J. McHugh & Son, Inc. 341 Mass. 566, 571. Since judgment for Moschella is proper, the order for judgment is reversed and judgment is to be entered for him in the sum of $4,000 in accordance with the stipulation. Moschella’s exceptions are dismissed, Mr. Justice Kirk and Mr. Justice Spiegel concur for reasons separately stated. So ordered.

Neither party has raised the question whether Moschella at the time of his injury was a traveler on the public way. See Wershba v. Lynn, 324 Mass. 327, 330-331. We do not consider the question.

Section 69 (as amended through St. 1959, c. 555), so far as relevant to the issue before us, reads: “The commonwealth and any county, city, town or district having the power of taxation which has accepted . . . [St. 1913, c. 807] . . . shall pay to laborers, workmen and mechanics employed by it who receive injuries arising out of and in the course of their employment . . . the compensation provided by this chapter. . . .

The terms laborers, workmen and mechanics . . . shall include all employees of any such city . . . who are engaged in work being done under a contract with the state department of public works, and shall include other employees ... of any such . . . city ... to such extent as .. . such . . . city . . . shall determine .... Any . . . city . . . which accepts this

section may provide for payment of compensation of certain or all of its employees by insurance with an insurer, subject, however, to the provisions and limitations of this section” (emphasis supplied).

Section 69 has been further amended by St. 1960> c.

Section 18 reads in part, “If an insured person enters into a contract . . . with an independent contractor to do such person’s work, or if such a contractor enters into a contract with a sub-contractor to do all or any part of the work comprised in such contract . . . and the insurer would, if such work were executed by employees immediately employed by the insured, be liable to pay compensation ... to those employees, the insurer shall pay to such employees any compensation which would be payable to them ... if the independent or sub-contractors were insured persons.

The insurer, however, shall be entitled to recover indemnity from any other person who would have been liable to such employees independently of this section; and if the insurer has paid compensation under this section, it may enforce, in the name of the employee or in its own name and for its benefit, the liability of such other person. . . . This

section shall not apply to any contract of am independent or sub-contractor which is merely ancillary and incidental to, and is no part of or process in, the trade or business carried on by the insured, nor to any case where the injury occurred elsewhere than on, in or about the premises on which the contractor has undertaken to execute the work for the insured or which are under the control or management of the insured. The word ‘premises’ . . . shall include the public highways if the contract . , . necessitates the use of the public highways.’’