Gillard's Case
- Reporters:
- Before:
- Rugg
This is а proceeding under the workmen’s compensation act. The case was heard by a board member, who stated as agreed facts that the employee received an injury in the course of and arising out of his employment on the ship “ Cohasset” on *50November 14, 1918, and that the employer had knowledge of the injury. He then stated that the questions were “ (1) The insurer contends that the injury.occurred in a ship on navigable waters and, therefore, the board is without jurisdiction; and (2) dependency.” The board member made a report of the evidence, found that the injury “occurred on navigable waters,” and ridеd that the case was not within the jurisdiction of the board and dismissed the claim. The industrial accident board on review stated the “Questions” to be “(1) Jurisdiction; (2) dependency,” found that the “report of the Board Member contains all the material evidence” and affirmed the ruling of the board member on the jurisdictiоnal ground. The case then came before the Superior Court, where a decree was entered reciting that it “was agreed by the parties that at the time of the injury for which compensation is sought, the employee was engaged in the work of original construction of a vessel which had theretofore been launched,” adjudging “that the work of the employee at the time of said injury was non-maritime in its nature,” and ordering the insurer to make payments to the two “minor children of said deceased employee” at the rate of $10 per week. It was agreed that the wages of the employеe were sufficiently large to entitle total dependents to that sum as the maximum.
The original claimants were Annie M. Gillard, alleged widow, and Jessie and George C. Gillard, minor children. During the hearings before the board member Annie M. Gillard withdrew as claimant, leaving the minor children as the only claimants.
The reported evidence, which was not contradicted in any particular and which manifestly formed the basis of the findings of fact of the board member and to which resort may be had as background for the findings of the industrial accident board, was in substance that the ship “ Cohasset” was launched on November 3, 1918, at the Quincy yard of thе Fore River Shipbuilding Corporation into the Fore River, which is navigable water; that the ship then was towed around to the dock, to which it was tied with manila and steel wire lines; that a portable gangway, which was lifted over the side of the ship and which was not secured in any way except by its own weight, was put on board for workmen to get on and off the ship; that the ship was then about seventy-five per cent completed, no engines, boilers or machinery except some *51piping being then installed; that all these were put into the ship while she was tied up to the dock; that after completion the ship was delivered to the government, and that the employee was doing some kind of carpentering work in connection with the completion of the ship while she was to that end tied up to the dock.
The words of
The words of the workmen’s compensation act, now G. L. c. 152, formerly St. 1911, c. 751, are broad enough in their scope to include maritime torts except and so far as jurisdiction of the General Court of Massachusetts in that particular is excluded by the grant of power to the United States in “all cases of admiralty and maritime jurisdiction.”
In none of the cases which have come before us since the decision of Southern Pacific Co. v. Jensen, 244 U. S. 205, have we undertaken to delimit the jurisdiction of the Commonwealth under the workmen’s compensation act further than to apply to specific cases the principles of that decision аs we understood them. Duart v. Simmons, 231 Mass. 313; S. C. 236 Mass. 225. Sterling’s Case, 233 Mass. 485. Proctor v. Dillon, 235 Mass. 538, 544, 545. Sterling v. Frederick Leyland & Co. Ltd. 242 Mass. 8. The language of that act, in view of its beneficent purpose, ought not to be narrowed any further than jurisdictional bounds demand.
So far as our own decisions are concerned, we are quite at liberty to extend the workmen’s compensation act to any case to which it is аpplicable under adjudications of the Supreme Court of the United States, and it is our duty so to extend it in order to effectuate the intention of the Legislature.
It seems to us that the case at bar is indistinguishable on its facts from those in Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469. That was a proceeding in admiralty to recover damages for pеrsonal injuries to an employee while at work as carpenter on a partially completed vessel lying at dock in navigable waters within the State of Oregon. In that State there was operative a workmen’s compensation act, which in effect gave both to employer and to еmployee an option to accept or reject the law and which, if not rejected, made the relief afforded thereby to the employee in lieu of all claims against his employer for injuries or death, with exceptions not here relevent. Neither the employer nor employee took the steps necessary to reject the act and thereby both came within its operation. It was held that, although the injury was maritime because occurring in navigable waters, nevertheless the exclusive features of the Oregon workmen’s compensation act applied and аbrogated the right to recover damages in an admiralty court which otherwise would exist. It was said, 257 U. S. 475, 476, that the contract for the construction of the vessel “was non-maritime, and although the incompleted structure upon *53which the accident occurred was lying in navigable waters, neither Rohde’s [the emplоyee’s] general employment, nor his activities at the time had any direct relation to navigation or commerce. Thames Towboat Co. v. The Schooner ‘Francis McDonald,’ 254 U. S. 242. The injury was suffered within a State whose positive enactment prescribed an exclusive remedy therefor. And as both parties had accepted and proceeded undеr the statute by making payments to the Industrial Accident Fund it cannot properly be said that they consciously contracted with each other in contemplation of the general system of maritime law. Union Fish Co. v. Erickson, 248 U. S. 308. Under such circumstances regulation of the rights, obligations and consequent liabilities of the parties, as between themselves, by a local rule would not necessarily work material prejudice to any characteristic feature of the general maritime law, or interfere with the proper harmony or uniformity of that law in its international or interstate relations. Southern Pacific Co. v. Jensen, 244 U. S. 205; Western Fuel Co. v. Garcia, ante, 233. ‘The general doctrine that in contract matters admiralty jurisdiction depends upon the nature of the transaction and in tort matters upon the locality, has been so frequently asserted by this court that it must now be treated as settled. . . . The workmen’s compensation law of Oregon declares that when a workman subject to its terms is accidentаlly injured in the course of his employment he ‘shall be entitled to receive from the Industrial Accident Fund hereby created the sum or sums hereinafter specified and the right to receive such sum or sums shall be in lieu of all claims against his employer on account of such injury or death. . . .’ In Western Fuel Co. v. Garcia, supra, [257 U. S. 233] we recently pointed out that, as to certain local matters regulation of which would work no material prejudice to the general maritime law, the rules of the latter might be modified or supplemented by State statutes. The present case is controlled by that principle. The statute of the State applies and defines the rights and liabilities of the parties. The employee may assert his claim against the Industrial Accident Fund to which both he and the employer have contributed as provided by the statute, but he can not recover damages in an admiralty court. This conclusion accords with Southern Pacific Co. v. Jensen, 244 U. S. 205; Chelentis v. Luckenbach S. S. Co. 247 U. S. 372; Union Fish Co. v. Erickson, *54248 U. S. 308; and Knickerbocker Ice Co. v. Stewart, 253 U. S. 149. In each of them the emрloyment or contract was maritime in nature and the rights and liabilities of the parties were prescribed by general rules of maritime law essential to its proper harmony and uniformity. Here the parties contracted with reference to the State statute; their rights and liabilities had no direct relation tо navigation, and the application of the local law cannot materially affect any rules of the sea whose uniformity is essential.”
Our workmen’s compensation act differs in no essential particular from the Oregon act as described in the opinion in the Rohde case, so far as affects the case at bar. An employer who becomes insured according to our workmen’s compensation act is required to give notice thereof to his employees,
The circumstance that in Oregon both parties contribute to аn industrial accident fund, while under our act the employer alone incurs expense by becoming insured in accordance with
As we understand the decision in Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469, it is precisely applicаble to the facts of the case at bar. It follows that jurisdiction of the case at bar is vested in the tribunals of this Commonwealth under the workmen’s compensation act and under the Constitution of the United States.
. It was the duty of the Superior Court to enter such decree as the law required on the facts found even though contrary to the decision of the Industrial Accident Board. McNicol’s Case, 215 Mass. 497, 502. Bell’s Case, 238 Mass. 46, 52. Therefore he was entirely within his judicial function in reversing the rulings of law of the board member and of the Industrial Accident Board as to jurisdiction, which may well have been made before the decision in the Rohde case came to their аttention.
The insurer contends that the record does not warrant a decree for the dependents because there is no finding that the employee elected to come under the act, or that he was not injured by his own serious and wilful misconduct. There is nothing in these contentions. The insurer raised no such points before either the board *56member or the Industrial Accident Board. The report of each stated explicitly that the questions raised were (1) jurisdiction and (2) dependency. The insurer must be taken to have waived all other questions and cannot raise them now for the first time. If there was any mistake in thе record, appropriate proceedings for its correction should have been taken seasonably. Doherty’s Case, 222 Mass. 98.
The suggestion that there was informality in entering the case in the Superior Court made for the first time in this court also comes too late. That court had jurisdiction of the cause, and the рarties. Paige v. Sinclair, 237 Mass. 482.
There is no express finding of fact concerning dependency of the minor children. That is stated both by the board member and by the Industrial Accident Board to have been one of the “questions” presented for their decision. Neither made any decision of that question. It seems pretty clear thаt dependent minor children are conclusively presumed to be wholly dependent upon the father with whom they live in the absence of claim by a widow.
Decree affirmed.