
353 Mass. 681 (1968)
234 N.E.2d 281
HILDA M. FERRIS & another
vs.
RUSSELL GRINNELL, JR., & another.
Supreme Judicial Court of Massachusetts, Essex.
January 3, 1968.
February 16, 1968.
Present: WILKINS, C.J., SPALDING, CUTTER, KIRK, & REARDON, JJ.
Walter F. Henneberry for the defendants.
Walter J. Hurley for the plaintiffs.
SPALDING, J.
In this action of tort the plaintiff Hilda M. Ferris (plaintiff) sought to recover under a count alleging that she was injured while in the defendants' employ; that the accident arose out of and in the course of her employment; and that the defendants who were required to be insured under the Workmen's Compensation Act were not insured.[1] The case was submitted to the jury on this count and a verdict was returned for the plaintiff. The question *682 for decision stems from the denial of the defendants' motion for a directed verdict.
There was evidence of the following: On August 26, 1960, the plaintiff, who was one of five persons in the defendants' employ, was injured as a result of a fall on the defendants' kitchen floor. The plaintiff began working for the defendants in 1952 or 1953. Her duties consisted primarily of preparing dinner, bathing the children and putting them to bed, and cleaning the kitchen. The accident occurred between 5:30 and 6 P.M. after the plaintiff had finished preparing the evening meal. She fell "in the area where the kitchen sink was located."
The plaintiff was a domestic servant and prior to 1953 would not have come within the protection afforded employees by the Workmen's Compensation Act (Act), for domestic servants were expressly excluded. G.L.c. 152, § 1 (4), as appearing in St. 1945, c. 369. Hagerty v. Myers, 333 Mass. 387, 389. If she comes within the Act it must be on the basis of the amendments of § 1 (4) by St. 1953, c. 656, § 1; St. 1955, c. 755; St. 1956, c. 680; and St. 1960, c. 306.[2] If the plaintiff was an employee protected by the Act and her employers were not insured or self-insurers, she could recover in tort for an injury arising out of and in the course of her employment without proof of negligence. And the employers would not have the benefit of the common law defences such as contributory negligence, the fellow servant rule, and assumption of the risk, voluntary and contractual. G.L.c. 152, §§ 66 and 67. The defendants urge that the plaintiff was not an employee as defined in the Act. "Employee" under G.L.c. 152, § 1 (4), is defined as "every person in the service of another under any contract of hire, express or implied, oral or written, excepting ... a person whose employment is not in the usual course of the trade, business, profession or occupation of ... [her] employer." *683 It is obvious that there is a repugnancy between this definition and the purported inclusion of certain domestic servants within the Act's protection, for it is difficult to see how such servants would be employed "in the usual course of the trade, business, profession or occupation of" the employer in the running of his home. The Act, it would seem, needs legislative clarification on this point. But how, absent such clarification, we would resolve this repugnancy need not be decided, for there is another ground which is dispositive of the case.
If the plaintiff, because a domestic servant, is to be afforded the protection of the Act she must establish that at the time of her injury there were more than three such servants in the defendants' employ. As to persons employing three domestic servants or less the Act remains elective. G.L.c. 152, § 1 (4) (c), as amended through St. 1960, c. 306. At the time of the accident the defendants employed five persons. There was evidence that, in addition to the plaintiff, Mary Courletis and Hazel Carpenter were employed by the defendants as domestic servants, each of whom worked more than sixteen hours a week, or so the triers of fact could have found. Walter Johnson and Warren Spurling, according to the evidence, also worked more than sixteen hours a week at the time of the accident. Their duties included mowing the grass, painting, gardening, driving the children to and from school, taking care of storm windows, doing errands and general repair work.
Section 1 (5) of the Act, as amended through St. 1958, c. 429, which defines "employer," contains a proviso that "the owner of a dwelling house having not more than three apartments and who resides therein, or the occupant of a dwelling house of another who employs persons to do maintenance, construction or repair work on such dwelling house or on the grounds or buildings appurtenant thereto shall not because of such employment be deemed to be an employer." The defendants come within the description contained in the first clause of the proviso. Thus they are not to be deemed employers as to persons doing the type of work described in *684 the proviso. It is clear, on this record, that the work done by Spurling and Johnson was of this type. Consequently at the time of the accident there were not more than three domestic servants in the defendants' employ. The Act, therefore, as to the defendants was elective. Since the plaintiff's case is based exclusively on the theory that the defendants were required to insure under the Act, she failed to make out a case, and the defendants' motion for a directed verdict should have been granted.
The defendants' exceptions are sustained and judgment is to be entered for the defendants.
So ordered.
NOTES
[1]  There were other counts in the declaration but these need not concern us; one, based on negligence, was waived, and another in which the plaintiff's husband sought consequential damages resulted in a verdict for the defendants.
[2]  Section 1 (4), as amended by St. 1960, c. 306, now provides that the Act "shall remain elective as to the employers of ... (b) Seasonal or casual or part-time domestic servants. For the purposes of this paragraph, a part-time domestic servant is one who works in the employ of the employer less than sixteen hours per week."
