Duart v. Simmons

• Decision Date: 28 June 1920
• Citation: 128 N.E. 32,236 Mass. 225
• Parties: DUART v. SIMMONS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 225

128 N.E. 32

DUART

v.SIMMONS.^*

Supreme Judicial Court of Massachusetts, Bristol.

June 28, 1920.

Exceptions from Superior Court, Bristol County; John A. Aiken, Judge.

Action of tort for personal injuries by Joe Duart against La Forest L. Simmons. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

David R. Radovsky, of Fall River, for plaintiff.

Sawyer, Hardy, Stone & Morrison, of Boston (E. C. Stone, of Boston, of counsel), for defendant.

RUGG, C. J.

This cause of action arises from the facts that the plaintiff, an employé of an independent contractor, was injured while working in the hold of a barge in discharging coal, by reason of the fall of a tub caused by the parting of a rope owned by the defendant and by him furnished for the unloading of his cargo from the barge. The case was before us in 231 Mass. 313, 121 N. E. 10. One issue then presented was whether the defendant was exonerated from liability in an action at law because he was a subscriber under the Workmen's Compensation Act. Since the injury arose upon a vessel plying in interstate commerce between different ports of this country while it was lying at wharf in navigable waters, we felt constrained by the controlling authority of Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900, to hold that the Workmen's Compensation Act did not apply to an injury so received. The judge in the superior court had thus ruled. The case then went to trial to a jury as an ordinary action of tort. The case came before us on the defendant's exceptions, which are set forth at length in the earlier decision. The exceptions were overruled and judgment was entered in favor of the plaintiff in the superior court on December 18, 1918. Thereafter the case was taken to the Supreme Court of the United States on writ of error. It was disposed of on March 1, 1920, in a per curiam opinion to the effect that it be ‘dismissed for want of jurisdiction upon the authority of section 237 of the Judicial Code, as amended by the Act of September 6, 1916, c. 448, § 2, 39 Stat. 726.’ Simmons v. Duart, 251 U. S. 547, 40 Sup. Ct. 342, 64 L. Ed. 408. A mandate issued from the United States Supreme Court under date of April 23, 1920, to the effect that the cause was remanded to the superior court for such proceedings as ‘ought to be had therein, * * * the said writ of error notwithstanding.’ The defendant filed a motion in the superior court on March 31, 1920, praying that the judgment be set aside chiefly on the ground that under the decision in Chelentis v. Luckenbach S. S. Co., Inc., 247 U. S. 372, 38 Sup. Ct. 501, 62 L. Ed. 1171, the plaintiff could not prevail in an action at common law and that no other relief was open. Requests for rulings of law based upon the same decision were presented by the defendant. These requests were refused, the motion of the defendant was denied and upon a motion by the plaintiff, judgment for the plaintiff affirmed, to all of which the defendant excepted.

The verdict for the plaintiff was rendered on April 12, 1918. The decision in Chelentis v. Luckenbach S. S. Co., Inc., supra, was delivered six days later. It is manifest from these dates as well as from the record that the case could not have been and was not tried to the jury upon the view of maritime law announced in that decision.

[2][3] The case could not go to the United States Supreme Court except after final judgment in the superior court. Judicial Code, § 237, as amended (U. S. Comp. St. § 1214). The writ of error did not vacate that judgment. That judgment continued in force until reversed. It...