Cote v. Bachelder-Worcester Co.

• Decision Date: 05 April 1932
• Parties: COTE v. BACHELDER-WORCESTER CO.
• Court: New Hampshire Supreme Court

160 A. 101

COTE

v. BACHELDER-WORCESTER CO.

Supreme Court of New Hampshire. Hillsborough.

April 5, 1932.

Transferred from Superior Court, Hillsborough County; Matthews, Judge.

Petition for compensation under the Employers' Liability and Workmen's Compensation Act, by Georgiana Oote, administratrix of the estate of Zephirin Cote, against the Bachelder-Worcester Company. After trial, the case was transferred for the opinion of the Supreme Court upon questions.

Case discharged.

Petition for compensation under the Employers' Liability and Workmen's Compensation Act (P. L. c. 178). Trial by the court. The two questions which are stated below were transferred without ruling by Matthews, J.

The plaintiffs intestate, Zephirin Cote, was injured on April 2, 1931, while in the employ of the defendant corporation which had accepted the provisions of the act above referred to. He died on August 7, 1931. At the time of the accident the maximum amount of compensation recoverable under the act was $3,000 (P. L. c. 178, § 19, subd. 1). Chapter 131 of the Laws of 1931, increasing the amount of recovery to $4,500, went into effect upon July 1, 1931.

The following facts were found by the court:

"The normal running time of the defendant corporation was fifty hours per week. At the price per hour which Mr. Cote was receiving for his labor, his average earnings for the year preceding the accident would have been $21.50 per week if the defendant's factory had been running full time and he had worked all the time."

"During the year preceding the accident, Mr. Cote worked for defendant all the time that there was work for him to do, and his actual average earnings were only $14.22 per week."

Other facts appear in the opinion. The case was transferred for the opinion of the court upon the following questions:

"1. Is the plaintiff entitled to compensation under the provisions of the law in force at the time of Mr. Cote's death, or are her rights limited by the provisions of the law in force at the time of the accident?

"2. Are Mr. Cote's average weekly earnings for the year preceding the accident to be computed upon the amount which he would have earned if the factory had been in operation at its full normal running time as claimed by the plaintiff, or are they to be computed upon his actual earnings for the full time that the defendant had work for him to do as claimed by the defendant?"

Alfred J. Chretien, of Manchester, for plaintiff.

Wyman, Starr, Booth & Wadleigh, of Manchester (Wilbur F. Parker, of Manchester, orally), for defendant.

BRANCH, J.

I. The argument of the plaintiff with reference to the first question reserved by the trial court may be summarized as follows: "The widow is not suing for a wrong done to or on a right acquired by the employee, but for a loss to her, and on a right of her own. * * * It is a statutory right created by the statute for her benefit expressly made determinable at the time of the death of the employee and not arising until then. * * * It follows that the law existing at the time of death should govern the extent of the recovery."

The provisions of the statute do not sustain this position. No right of action is given to a widow as such. The act in terms imposes upon employers liability for compensation only to their employees. "Such employer shall thereafter be liable to all workmen engaged in any of the employments specified in section 1 for any injury arising out of and in the course of their employment, in the manner provided in the following sections." P. L. c. 178, § 4. If an injured workman dies, the amount of compensation due under the act is made payable to his legal representative for the benefit of such dependents or other persons as are entitled thereto. Ib., § 20. The existence or nonexistence of dependents affects the amount of compensation recoverable by the personal representative (lb., § 10), but no right of action for any loss suffered by such dependents is given to them by the act.

The statute might conceivably have been drawn in such a way as to give to every dependent of a deceased workman a separate right of action for the loss resulting to such dependent from his death, but no such purpose is discernible in the present act. On the contrary, it appears to have been framed on an entirely different theory, and the technique which had formerly been employed with reference to the survival of tort actions (P. L. c. 302, §§ 9-15) was here adopted. Instead of creating new rights of action in the dependents of a deceased workman, the act gave to the workman himself a new right to demand compensation for personal injury and provided that this right should survive to his personal representative for the benefit of his dependents. We therefore must conclude that the right to claim compensation from the defendant, which plaintiff is now seeking to enforce, accrued at the time when the deceased received his injury and that the defendant's liability became fixed as of that date.

From these conclusions it follows that the plaintiff's rights are limited by the provisions of the law in force at the time of the accident. In order to bring the present case within the provisions of chapter 131 of the Laws of 1931, it would be necessary to give retroactive effect to that statute. This result, if constitutionally permissible (see Constitution of New Hampshire, part. 1, art. 23), would involve a violation of the principles which were stated and examined at length in Murphy v. Railroad, 77 N. H. 573, 94 A. 967.

Although the decisions of other courts with reference to statutes of varying phraseology have only slight persuasive effect here, it is interesting to note that similar conclusions have been reached elsewhere with reference to the time when a right to compensation accrues and that the contrary decision reached by the Supreme Court of Minnesota in State ex rel. Carlson v. District Ct., 131 Minn. 96, 154 N. W. 661, has not met with judicial approval. Thorpe v. Dept. of Labor, 145 Wash. 498, 261 P. 85; Quilty v. Connecticut Co., 96 Conn. 124, 113 A....