Bradford Electric Light Co. v. Clapper, No. 2465.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBINGHAM, ANDERSON, and WILSON, Circuit
Citation51 F.2d 992
Docket NumberNo. 2465.
Decision Date29 June 1931
PartiesBRADFORD ELECTRIC LIGHT CO., Inc., v. CLAPPER.

51 F.2d 992 (1931)

BRADFORD ELECTRIC LIGHT CO., Inc.,
v.
CLAPPER.

No. 2465.

Circuit Court of Appeals, First Circuit.

January 8, 1931.

On Rehearing June 29, 1931.


51 F.2d 993

Robert W. Upton, of Concord, N. H. (Joseph C. Donovan, of Concord, N. H., on the brief), for appellee.

Stanley M. Burns, of Dover, N. H. (Hughes & Burns, of Dover, N. H., on the brief), for appellant.

Before BINGHAM, ANDERSON, and WILSON, Circuit Judges.

WILSON, Circuit Judge.

This is an action under the Lord Campbell Act of New Hampshire, sections 9-14, c. 302, Pub. Laws 1926, to recover for injuries resulting in the death of the plaintiff's intestate and alleged to have occurred through the negligence of the defendant corporation.

The defendant in the action and appellant in this court is a public utility corporation organized under the laws of Vermont, and having its principal place of business in the town of Bradford in Vermont. It is engaged in furnishing electric current for public uses in both Vermont and New Hampshire. The plaintiff's intestate was a resident of Bradford, but received his injuries in the course of his employment in the state of New Hampshire.

The contract of employment of the plaintiff's intestate was entered into in Vermont. His work was that of a lineman, and at times he performed the duties of a "trouble shooter," or an emergency man, who might be sent out at any time to repair sudden breaks in the lines.

In the evening of the day on which his injuries occurred, he was requested to go across the Connecticut river to restore burned-out fuses at a substation in the town of Haverhill, which lies on the east bank of the river in the state of New Hampshire, where in the course of his work he came in contact with high-tension wires and received the injuries which caused his death.

The action was originally brought in the New Hampshire superior court, and on petition of the defendant was removed to the federal District Court on the ground of diversity of citizenship; the plaintiff being a citizen and a resident of New Hampshire. On the third trial before a jury, it resulted in a verdict for the plaintiff for $4,000.

Vermont in 1915 (Pub. Laws 1915, No. 164) adopted what is known as a Workman's Compensation Act of the elective type, common in most of the states, under which either the employer or employee could adopt its provisions or retain his rights at common law. To induce the employer to assent to be bound by its provisions, he was, in case of refusal, deprived of his common-law defenses of assumption of risk, negligence of a fellow servant, and contributory negligence; while the employee, in case he did not assent, must meet those defenses in addition to proving that his injuries were due to his employer's negligence. In case both assented and the employee suffered injury arising out of, and in the course of, his employment, he received compensation based on his average weekly wage during his incapacity, whether his employer was negligent or not, and even though his injury was due entirely to his own negligence, or to that of a fellow servant, or was the result of pure accident.

Both employer and employee under the Vermont act, as in many of the compensation

51 F.2d 994
acts of other states, are presumed to have accepted the act unless notice is given to the contrary. As the court of one state has put it, the failure to give such notice creates an irrebuttable presumption of assent. American Radiator Co. v. Rogge, 86 N. J. Law, 436, 92 A. 85, 94 A. 85

Such provisions for the acceptance of the act have always been held sufficient to bind the parties, and in no case has any such statute been held invalid as against public policy, or in violation of any constitutional provision on this ground. Opinion of the Justices, 209 Mass. 607, 610, 611, 96 N. E. 308; Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 N. W. 49; American Radiator Co. v. Rogge, supra; Johnston v. Kennecott Copper Corp. (C. C. A.) 248 F. 407; Hopkins v. Matchless Metal Polish Co., 99 Conn. 457, 460, 121 A. 828; Crane v. Leonard, Crossette & Riley, 214 Mich. 218, 183 N. W. 204, 18 A. L. R. 285; Industrial Commission v. Ins. Co., 64 Colo. 480, 174 P. 589, 3 A. L. R. 1336; Rounsaville v. Railroad Co., 87 N. J. Law, 371, 94 A. 392; Pierce v. Storage Co., 185 Iowa, 1346, 172 N. W. 191; Foughty v. Ott, 80 W. Va. 88, 92 S. E. 143; State ex rel. Chambers v. District Court, 139 Minn. 205, 166 N. W. 185, 3 A. L. R. 1347; Anderson v. Miller Scrap Iron Co., 169 Wis. 106, 170 N. W. 275, 171 N. W. 935; Post v. Burger & Gohlke, 216 N. Y. 544, 111 N. E. 351, Ann. Cas. 1916B, 158; Hospers v. J. Hungerford Smith Co., 230 N. Y. 616, 130 N. E. 916.

It is also generally held that such a statute on acceptance by both parties becomes a part of the contract of employment and is exclusive of all other remedies in case of injuries. Kennerson v. Thames Towboat Co., 89 Conn. 367, 371, 94 A. 372, L. R. A. 1916A, 436; Powers v. Hotel Bond Co., 89 Conn. 143, 147, 93 A. 245; Hopkins v. Matchless Metal Polish Co., 99 Conn. 457, 460, 121 A. 828; Gooding v. Ott, 77 W. Va. 487, 87 S. E. 862, L. R. A. 1918D, 637; Hunter v. Coal Co., 175 Iowa, 245, 154 N. W. 1037, 157 N. W. 145, L. R. A. 1917D, 15, Ann. Cas. 1917E, 803; Deeny v. Wright & Cobb Lighterage Co., 36 N. J. Law J. 121; Industrial Commission v. Ins. Co., supra; Dettloff v. Hammond, Standish & Co., 195 Mich. 117, 161 N. W. 949; Grinnell v. Wilkinson, 39 R. I. 447, 98 A. 103, L. R. A. 1917B, 767, Ann. Cas. 1918B, 618; Barnhart v. American Concrete Steel Co., 227 N. Y. 531, 125 N. E. 675; Martin v. Kennecott Copper Corp. (D. C.) 252 F. 207.

In terms, the Vermont act, section 5770, G. L. 1917, covers injuries to employees who are hired in that state, but whose employment requires them to perform work in another state where they are injured. It is now held with but few, if any, exceptions, at least under elective acts, and whether in terms covering injuries in another state or not, that, when assented to by both parties, a compensation act of the state of employment, at least in so far as it is administered in that state, will cover injuries received in the course of the employment in another state. In this sense such acts are said to have an extraterritorial effect. See cases above cited.

Massachusetts, in construing its original act in an early decision, Gould's Case, 215 Mass. 480, 102 N. E. 693, Ann. Cas. 1914D, 372, held the contrary, and this decision was followed in a few states; but Massachusetts since its decision in the Gould Case has amended its act, and in a recent decision, Penderzoli's Case, 169 N. E. 427, decided January 3, 1930, now holds its act under a contract of employment entered into in Massachusetts covers injuries received by the employee in another state. The great weight of authority now sustains this construction as the most practical. Otherwise great confusion would result as to the rights and obligations of employer and employee, where employees are sent out of the state to do work.

In this case, as neither the defendant corporation nor the plaintiff's intestate gave notice of a refusal to assent to the Vermont act, both were bound by it, and its provisions became a part of the contract of employment and covered all injuries, whether received in Vermont or New Hampshire, and for which under the Vermont act no action at common law based on negligence would lie. See cases above cited.

There can be no doubt, therefore, if the proceedings had been brought under the Vermont statute, the plaintiff's intestate could have recovered only the sum provided where there are no dependents; and herein lies the reason for this action. The deceased had no dependents, and, as is provided in all such acts, including that of New Hampshire, in such cases only a comparatively small sum to provide for burial expenses is allowed.

As the court said in Wasilewski v. Warner Sugar Refining Co., 87 Misc. Rep. 156, 149 N. Y. S. 1035, 1036: "The plaintiff, however, does not now wish to accept the payment to which he is entitled under the compensation plan. He is advised that his injuries were due to the employer's negligence, and he wishes to take his chances on getting a larger amount through a suit at law."

51 F.2d 995

The comment of the court in the New York case aptly applies to the heirs of the deceased in this case, who probably suffered little financial loss, if any, by his death. Because the accident happened in New Hampshire, they seek to bring their action under its death statute and recover a larger sum than they could recover under the Vermont law.

At the opening of the trial in the federal court, the defendant filed its answer and a brief statement of defense in which it set up the provisions of the Vermont Compensation Act, and the fact that the defendant and the deceased were both residents of Vermont, that the deceased was hired in Vermont, and that both the defendant and deceased had accepted the Vermont act, all of which it claimed was a bar to the action, and moved for a dismissal of the action.

The plaintiff then moved that the brief statement be rejected on the following grounds:

(1) That the Workmen's Compensation Law of Vermont has no extraterritorial force or effect and does not control the rights of the parties in this litigation.

(2) That the rights of the parties to this action are determinable solely by the laws of the state of New Hampshire.

(3) That the plaintiff's cause of action accrued under and by virtue of the laws of New Hampshire, the injury causing the death of the plaintiff's intestate occurring while he was employed within said state.

(4) That the matters set forth in the defendant's brief statement do not constitute a valid and legal defense to the plaintiff's cause of action.

This motion was in effect a demurrer to the brief statement and an admission of the facts stated therein.

The District Court we think misconceived the nature of the defense set up...

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8 practice notes
  • Triangle Chemicals, Inc., Matter of, No. 81-2453
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • February 18, 1983
    ...proper showing, only two of the decisions cited in the text or note 7, supra, touch upon this issue. In In re H.L. Stratton, Inc., supra, 51 F.2d at 992, the Second Circuit Nor is there merit in the contention that the appointment should now be authorized nunc pro tunc. The only argument in......
  • Sheerin v. Steele, No. 12887.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 31, 1957
    ...was claimed to have been caused by his employer's negligence. A judgment for the plaintiff, affirmed by the Court of Appeals, 1 Cir., 51 F.2d 992, was reversed by the Supreme Court. The Court ruled the Vermont statute was a defense to the employer against the death action brought in New Ham......
  • In re 245 Associates, LLC, Bankruptcy No. 95-B-41698.
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • November 9, 1995
    ...the case, and the attorney demonstrates "excusable neglect" or "unavoidable 188 BR 751 hardship." See In re Rogers-Pyatt Shellac Co., 51 F.2d at 992; In re Rundlett, 137 B.R. at 146; In re Robotics Resources R2, Inc., 117 B.R. at 62; In re French, 111 B.R. at 394; In re Northeast Dairy Co-o......
  • In re American Thrift & Loan Ass'n, Bankruptcy No. 90-04754-B11.
    • United States
    • United States Bankruptcy Courts. Ninth Circuit. U.S. Bankruptcy Court — Southern District of California
    • January 31, 1992
    ...receiver. If the rule is to have vitality and the evils against which it is aimed are to be eliminated, it should be enforced literally. 51 F.2d at 992. That position was reiterated by the Second Circuit in Matter of Futuronics Corp., 655 F.2d 463, 469 (1981). The Futuronics panel recognize......
  • Request a trial to view additional results
8 cases
  • Triangle Chemicals, Inc., Matter of, No. 81-2453
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • February 18, 1983
    ...proper showing, only two of the decisions cited in the text or note 7, supra, touch upon this issue. In In re H.L. Stratton, Inc., supra, 51 F.2d at 992, the Second Circuit Nor is there merit in the contention that the appointment should now be authorized nunc pro tunc. The only argument in......
  • Sheerin v. Steele, No. 12887.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 31, 1957
    ...was claimed to have been caused by his employer's negligence. A judgment for the plaintiff, affirmed by the Court of Appeals, 1 Cir., 51 F.2d 992, was reversed by the Supreme Court. The Court ruled the Vermont statute was a defense to the employer against the death action brought in New Ham......
  • In re 245 Associates, LLC, Bankruptcy No. 95-B-41698.
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • November 9, 1995
    ...the case, and the attorney demonstrates "excusable neglect" or "unavoidable 188 BR 751 hardship." See In re Rogers-Pyatt Shellac Co., 51 F.2d at 992; In re Rundlett, 137 B.R. at 146; In re Robotics Resources R2, Inc., 117 B.R. at 62; In re French, 111 B.R. at 394; In re Northeast Dairy Co-o......
  • In re American Thrift & Loan Ass'n, Bankruptcy No. 90-04754-B11.
    • United States
    • United States Bankruptcy Courts. Ninth Circuit. U.S. Bankruptcy Court — Southern District of California
    • January 31, 1992
    ...receiver. If the rule is to have vitality and the evils against which it is aimed are to be eliminated, it should be enforced literally. 51 F.2d at 992. That position was reiterated by the Second Circuit in Matter of Futuronics Corp., 655 F.2d 463, 469 (1981). The Futuronics panel recognize......
  • Request a trial to view additional results

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