American Mut. Liability Ins. Co. of Boston v. Lowe

• Decision Date: 21 August 1936
• Docket Number: No. 6090.,6090.
• Citation: 85 F.2d 625
• Parties: AMERICAN MUT. LIABILITY INS. CO. OF BOSTON et al. v. LOWE et al.
• Court: U.S. Court of Appeals — Third Circuit

85 F.2d 625 (1936)

AMERICAN MUT. LIABILITY INS. CO. OF BOSTON et al. v. LOWE et al.

No. 6090.

Circuit Court of Appeals, Third Circuit.

August 21, 1936.

Frank Fink, of Newark, N. J., and James J. Carroll, of New York City, for appellants.

Gross & Gross, of Jersey City, N. J. (Leo B. Lebovitz and Henry Rubin, both of New York City, on the brief), for appellees.

Before BUFFINGTON and DAVIS, Circuit Judges, and DICKINSON, District Judge.

DAVIS, Circuit Judge.

This is an appeal from an order dismissing the bill of complaint in which the plaintiff-appellant sought to enjoin the payment of a compensation award in favor of Liberatore Zagami, made by the appellee, Samuel Lowe, as deputy commissioner, under the Longshoremen's and Harbor Workers' Compensation Act (March 4, 1927, c. 509, § 1 et seq., 44 Stat. 1424-1446, see 33 U.S.C.A. §§ 901 to 950).

Liberatore Zagami, a longshoreman, was injured in the course of his employment on December 13, 1930, while employed by M. P. Howlett, Inc. The injury appears to have been diagnosed as a right sacroiliac sprain and later as a spondylolisthesis, or subluxation of the vertebra. Compensation payments were made until November 6, 1931. These, together with $625, paid later in a lump sum as a purported final settlement, aggregated $1510.71. Upon cessation of the payments, the claimant applied for further consideration of his claim, and on May 2, 1932, a formal hearing was held before Deputy Commissioner Jerome C. Locke. On the following day he wrote a memorandum in which he found that the claimant, Zagami, was still partially disabled, and made the following suggestions and notations:

"I suggested to both parties that about the only thing to be done in the case is to rate the man as a temporary total disability for fifty-two weeks from the date of injury, or up to December 30th, 1931, which would give him $1040 in compensation for that period. Since then, he has been a partial disability with fifty per cent. loss in earning capacity which would entitle him to eighteen weeks' additional compensation up to April 28th, 1932, in the amount of $180.00 or a total of $1220 up to April 28th. He has already been paid $887.71, leaving a net balance of $332.29. After April 28th, he should be continued on the compensation roll as a partial disability for approximately ninety days and then re-examined.

"After I suggested this as the order that must issue in the case, the claimant's attorney and Mr. Tozzi had further negotiations, and finally effected a full and final settlement on the basis of $625. I believe such settlement is fair and is hereby approved. $550 is to be paid to the claimant and $75 to be paid directly to attorney Logomasini. Upon filing of form US-208 showing payments made, the case will be closed."

The parties were supplied with copies of the above memorandum. The $625 agreed upon by the attorneys and approved by the deputy commissioner was paid. The appellants contend this constituted a final settlement.

On May 9, 1932, an unsigned notice or form, known as form 208, was filed with the United States Employees' Compensation Commission by the appellant company, which gave notice that the payments had been made. The Commission thereupon closed out the case on its own files, "within the limitations provided by section 22 of the Act." No further proceedings occurred, the claimant having gone to Italy, until September 27, 1934. On that date he applied for a further consideration of his claim. The cause then came before Deputy Commissioner Samuel S. Lowe, appellee, who held a formal hearing on April 5, 1935. On May 29, 1935, after finding that partial disability had continued, he issued the compensation order now in dispute.

Thereupon the plaintiffs, as above stated, filed a bill of complaint to restrain the further payment of compensation and to vacate the alleged order of the deputy commissioner and restrain him from making further orders requiring additional payments. Defendants filed an answer wherein they prayed for an order dismissing the bill of complaint and directing the payment to Zagami of the balance he claimed to be due him. The court filed an order dismissing the bill and approving the order of the deputy commissioner. From this order of the court an appeal was taken to this court.

The appellants, as above stated, contend that the memorandum of May 3, 1932, was in effect a final award which cannot or should not now be disturbed. Both the deputy commissioner and the District Court held that it was not a final order because it did not comply with the formal statutory requirements, and therefore the case had never been finally adjudicated.

The deputy commissioner in his memorandum used words of suggestion rather than of order: "I suggested to both parties that * * * he should be continued on the compensation roll. * * * After I suggested, * * *" etc. The only portion of the memorandum which indicates that it might be a final order is the statement that "I believe such settlement is fair and is hereby approved," but this is not decisive, and, when the memorandum is considered as a whole, aside from the formal defects, it is evident that it cannot be regarded as anything more than what it purported to be in its title, a "Memorandum for the File." The very lack of a signature is indicative of the unfinished character of the proceedings.

The formal requirements of an order or award are set forth in 33 U.S.C.A. § 919 (e), as follows: "The order rejecting the claim or making the award (referred to in this chapter as a compensation order) shall be filed in the office of the deputy commissioner, and a...