Ayers v. Parker

• Decision Date: 17 June 1936
• Docket Number: No. 2116.,2116.
• Parties: AYERS v. PARKER et al.
• Court: U.S. District Court — District of Maryland

15 F. Supp. 447

AYERS v. PARKER et al.

No. 2116.

District Court, D. Maryland.

June 17, 1936.

Stuart M. Yeatman, of Baltimore, Md., for claimant.

Bernard J. Flynn, U. S. Atty., and T. Barton Harrington, Asst. U. S. Atty., both of Baltimore, Md., for E. V. Parker.

C. Damer McKenrick (of Bartlett, Poe & Claggett), of Baltimore, Md., for Arundel Corporation and United Fidelity & Guaranty Co.

COLEMAN, District Judge.

This is an appeal from a decision of the Deputy Commissioner under the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C.A. §§ 901-950) by which the appellant's claim for compensation under that act on account of the death of her husband was rejected.

The undisputed material facts as found by the Deputy Commissioner are as follows: On August 21, 1931, John Ayers, age fifty-six, husband of claimant, was working as a machinist helper aboard the dredge Corozal, which lay at the repairyard of his employer, the Arundel Corporation, in the Patapsco river, Baltimore Harbor. After Ayers had worked several hours, he complained of being ill of indigestion, was brought ashore, given medical aid at the company's dispensary, became unconscious and died shortly thereafter. Since the sole basis of the Deputy Commissioner's rejection of the claim as hereinafter shown was a jurisdictional one, he did not hear the case on the merits, although it may be stated parenthetically that it is the employer's contention that the deceased died of angina pectoris and not as a result of any accidental injury or occupational disease arising out of and in the course of his employment; whereas claimant's contention is that death was brought about by inhalation of ammonia fumes.

The Deputy Commissioner rejected the claim on the ground that it was not filed within one year after date of death as required by subsections (a) and (b) of section 13 of the act, and that it did not fall within the exceptions provided in subsections (c) and (d) of the same section (33 U.S.C.A. § 913 (a-d). These four subsections are as follows:

"(a) The right to compensation for disability under this chapter shall be barred unless a claim therefor is filed within one year after the injury, and the right to compensation for death shall be barred unless a claim therefor is filed within one year after the death, except that if payment of compensation has been made without an award on account of such injury or death a claim may be filed within one year after the date of the last payment. Such claim shall be filed with the deputy commissioner in the compensation district in which such injury or such death occurred.

"(b) Notwithstanding the provisions of subdivision (a) failure to file a claim within the period prescribed in such subdivision shall not be a bar to such right unless objection to such failure is made at the first hearing of such claim in which all parties in interest are given reasonable notice and opportunity to be heard.

"(c) If a person who is entitled to compensation under this chapter is mentally incompetent or a minor, the provisions of subdivision (a) shall not be applicable so long as such person has no guardian or other authorized representative, but shall be applicable in the case of a person who is mentally incompetent or a minor from the date of appointment of such guardian or other representative, or in the case of a minor, if no guardian is appointed before he becomes of age, from the date he becomes of age.

"(d) Where recovery is denied to any person, in a suit brought at law or in admiralty to recover damages in respect of injury or death, on the ground that such person was an employee and that the defendant was an employer within the meaning of this chapter and that such employer had secured compensation to such employee under this chapter, the limitation of time prescribed in subdivision (a) shall begin to run only from the date of termination of such suit."

It is undisputed, as appears from the findings of fact by the Deputy Commissioner with respect to the filing of the present claim, that it was not filed with the Deputy Commissioner, nor was any information given to him, verbally or otherwise of any kind, respecting this claim, until October 29, 1935. However, on November 4, 1931, the present claimant, the widow, filed a claim for compensation with the State Industrial Accident Commission of Maryland which, after hearing in due course, was rejected, the commission disclaiming jurisdiction. Thereupon, an appeal was taken to the superior court of Baltimore City, and after a trial before a jury, the action of the State Industrial Accident Commission was reversed on March 16, 1934, from which an appeal was taken by the insurance carrier, the United States Fidelity & Guaranty Company, to the Court of Appeals of Maryland. That court, in an opinion filed November 22, 1934, reversed the decision of the lower court, holding that the locus of the alleged accident being navigable water, jurisdiction was exclusively federal, and that, therefore, the state commission could not consider the claim. Arundel Corporation et al. v. Carrie Ayers, 167 Md. 569, 175 A. 586. On October 29, 1935, the present claim, as above stated, was for the first time filed with the Deputy Commissioner.

It will be seen from the provisions of the act above quoted that claims of this kind are absolutely outlawed if not filed within one year after the death, unless one of the following four situations exists: (1) Payment of compensation has been made without an award on account of the death, in which case a claim may be filed within one year after the date of the last payment; (2) objection to the failure to file the claim within the prescribed one year has not been made at the first hearing of the claim with respect to which all parties in interest are given reasonable notice and opportunity to be heard; (3) mental incompetency or minority on the part of claimant, in which cases the limitation is tolled until a guardian or other representative is appointed for, or until majority is attained by, the claimant; and (4) claimant has brought suit at law or in admiralty to recover damages on account of the injury, and recovery therein has been denied on the ground that the deceased was an employee and that his employer, against whom recovery was sought, were both within the jurisdiction of the act and that his employer had complied with the requirements of the act with respect to insurance, in which case the limitation period does not begin to run until the date of the termination of such suit.

It is conceded that the present claim does not come within the first, second, or third of the above exceptions. Claimant contends that it does, however, come within the fourth exception, at least if a liberal construction is given to the phraseology by which that exception is expressed. In short, claimant contends that the litigation carried on before the state commission and in the state courts was a suit at law; that the object of such suit was the recovery of compensation in the nature of damages because of the death of claimant's husband; that recovery of such damages was ultimately denied by the state court on the ground that such recovery, if allowable at all, was a matter of federal and not state jurisdiction which, it is contended, was tantamount to saying, using the precise language of subsection (d) of section 13 of the act (33 U.S.C.A. § 913 (d), that recovery was denied "on the ground that such person was an employee and that the defendant was an employer within the meaning of this chapter and that such employer had secured compensation to such employee under this chapter," because that is in essence the only reason why the state court rejected the claim, namely, because employer and employee, with respect to the occurrence of the accident alleged to have caused the latter's death, were exclusively within the provisions of the Longshoremen's & Harbor Workers' Compensation Act, the employer having been at the time protected by insurance in accordance with this act, against liability for such death; that is to say, that "such employer had secured compensation to such employee" under the act.

Admittedly the equities of the case appear to be strongly in favor of the claimant because it does seem harsh that she should be penalized to the extent of being forever barred from now prosecuting her claim in the proper tribunal merely because upon advice of counsel she saw fit to submit her claim first to the judgment of the state tribunals among which, as the chronological statement above given of the course of the litigation in these tribunals shows, there was divergence of opinion, although from the locus and character of the employment of the deceased the fact that the case was one exclusively for federal jurisdiction seems to have been quite clear. The lapse of time not only bars the remedy but also destroys the liability. Upon the exhaustion of the one year period, it is as if liability had never existed. William Danzer & Co. v. Gulf Railway Co., 268 U.S. 633, 45 S.Ct. 612, 69 L.Ed. 1126. Furthermore, it is argued that we are dealing with remedial legislation which should be liberally construed. As a general proposition, this is true. See De Wald v. Baltimore & Ohio Railroad Co. (C.C.A.) 71 F.(2d) 810. The Longshoremen's & Harbor Workers' Compensation Act was designed to accomplish the same general purpose as the workmen's compensation laws of the various states and is constitutional. Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598. In limiting the application of the act to cases where recovery "through workmen's compensation proceedings may not validly be provided by State law" (section 3 33 U.S.C.A. § 903), Congress did so because of limitations placed by the Supreme Court upon the scope of the exclusive authority of the national Legislature. Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, L.R.A.1918C, 451,...