232 Mass. 487 | Mass. | 1919
The intestate, John J. ICeohane, a teamster, had been in the employ of one Timothy J. McCarthy, to whom under St. 1911, c. 751, as amended, the insurer issued a policy dated March 3, 1916, to run for one year, protecting him as a subscriber from liability on account of injuries or death sustained by his employees. But, McCarthy having died testate on June 15,1916, his executrix, without being empowered by the will or authorized by a decree of the court of probate, continued after his death in the business for the benefit of the estate and retained ICeohane as an employee. See St. 1910, c. 411, § 1; Hines v. Levers & Sargent Co. 226 Mass. 214.
The arbitration committee found that on August 14, 1916, ICeohane received a personal injury in the course of and arising out of his employment “by being thrown from and run over by the team-which he was employed to drive, and that he died on the same day as a result of the injury,” and ordered the insurer to pay compensation to the administratrix in the amount stated in the record.' St. 1911, c. 751, Part II, §§ 6, 13. The decision was filed on October 9, 1917, and, the insurer having failed within seven days thereafter to file a claim for review as required by St. 1911, c. 751, Part III, § 7, as amended, the Industrial Accident Board rightly decided on January 12, 1918, that it had no author
The procedure thereafter was as follows: The insurer on January 21, 1918, presented to the Superior Court certified copies of the decision of the Industrial Accident Board and the findings of the arbitration committee and of all papers in connection therewith, stating that it intended to appeal to this court from the decision of the board. The administratrix, however, could not enforce the decision of the committee on arbitration except by a decree of the Superior Court and it is to be inferred, although the record does not so state specifically, that she presented and asked for the entry of the decree recited in the record. But the presiding judge on February 11, 1918, made an order on the above decree that “After hearing, I am satisfied that no contract of insurance existed at the time of the injury; that, in consequence, there was no jurisdiction in the accident board, and the motion for decree is denied.” The dependent widow on March 1, 1918, appealed to this court from the order.
The case thereafter was remitted to the Industrial Accident Board under an order, the material recitals of which are as follows: “And now comes the Massachusetts Bonding and Insurance Company, alleged insurer in the above entitled matter, and moves that the matter be dismissed for want of jurisdiction of the same by the Industrial Accident Board. . . . And a decree was presented to the court, upon which the following order was made, to wit: — After hearing, I am satisfed that no contract of insurance existed at the time of the injury; that, in consequence, there was no jurisdiction in the accident board, and the motion for decree is denied. . . . And on the 15th day of said February, 1918, after due hearing, the court ordered that said cause be remitted to the Industrial Accident Board for entrance of a finding that the board had no jurisdiction of the matter and the dismissal of the claim.”
While the question, whether the case presented by the record was as matter of law within the statute, was before the court, the procedure adopted was irregular. The statute requires a final decree from which the party aggrieved can appeal to this court. Gould’s Case, 215 Mass. 480, 483. Pigeon’s Case, 216 Mass. 51, 54, 55. Young v. Duncan, 218 Mass. 346. Camden’s Case,
The board upon receiving the order on March 11, 1918, decided on April 12, 1918, that “in accordance with the order of the Superior Court, the Industrial Accident Board find that they have no jurisdiction of the matter and dismiss the claim for compensation.” The case thereupon again came before the Superior Court and, a final decree having been entered affirming the decision, the case is properly before us on the claimant’s appeal. St. 1911, c. 751, Part III, § 11. Gould’s Case, supra.
The decree must be affirmed. The contract of insurance was solely between the testator and the insurer. The company undertook by the terms of the policy to indemnify him personally as a subscriber, and, even if he died during the year, the policy cannot be extended to include claims for injuries suffered by the employees of the executrix who is an employer of labor in the business which she is personally conducting. People’s Ice Co. v. Employers’ Liability Assurance Corp. 161 Mass. 122. Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452.
The administratrix, however, contends that under St. 1911, c. 751, Part V, §2, cl. 1, which says that “employer” shall include the legal representative of a deceased employer, the executrix, being the legal representative of the testator, is covered by the policy. But the preceding words of this section are, that the following words and phrases as used in this act shall, unless a different meaning is plainly required by the context, have the meaning we have just quoted. The definition simply means that, in the construction of the act, an administrator or an executor, if an employer of labor, may become a subscriber, instead of remaining under the common law subject to the disadvantages imposed by the statute.
Decree affirmed.
