Fid. & Cas. Co. of New York v. Huse & Carleton, Inc.

• Decision Date: 08 January 1926
• Citation: 254 Mass. 359,150 N.E. 230
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. HUSE & CARLETON, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 359

150 N.E. 230

FIDELITY & CASUALTY CO. OF NEW YORK

v.HUSE & CARLETON, Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 8, 1926.

Report from Superior Court, Suffolk County; M. Morton, Judge.

Action by the Fidelity & Casualty Company of New York against Huse & Carleton, Inc. Orders were granted permitting plaintiff's motion to amend written declaration, by substituting its own name as plaintiff, and denying defendant's motion to dismiss. On report. Orders affirmed.

C. O. Pengra, of Boston, for plaintiff.

E. A. Whitman, of Boston, for defendant.

BRALEY, J.

This action was begun July 5, 1916, under St. 1911, c. 751, pt. 3, § 15, as amended by St. 1913, c. 448, § 1, by the plaintiff in the name of Christina J. Anderson as administratrix of the estate of Carl Anderson. The declaration is in two counts respectively alleging the conscious suffering and death of the intestate, and the answer, among other defenses, denies that the administratrix was ever married to the intestate and that her appointment was invalid. R. L. c. 137, § 1. The plaintiff had issued a policy of insurance to Edward A. Laveau, the employer of the intestate, who died September 27, 1915, within a few hours after the accident, from injuries alleged to have been caused by the defendant's negligence while he was lawfully upon its premises in the course of his employment.

[4] A committee of arbitration appointed under St. 1911, c. 751, pt. 3 § 5, filed on January 4, 1916, with the Industrial Accident Board as provided in section 7, a report in which, after a hearing of all parties entitled to notice, they found that the employee met with injuries arising out of and in the course of his employment while working for Edward A. Laveau which resulted in his death, and awarded compensation to his widow of $10 a week for a period ‘which will bring the total amount recovered up to $4,000, namely 400 weeks.’ ‘We further find that Mrs. Anderson was the wife of Carl Anderson and was living with him at the time of his death, and under the law is conclusively presumed to be wholly dependent upon the decedent for her support.’ The defendant not being a necessary party to the proceedings, notice to it was not required. St. 1911, c. 751, pt. 3 §§ 4, 5, 6. But, even if under St. 1912, c. 571, § 14, which struck out section 11, pt. 3, St. 1911, c. 751, and provided that any party in interest may present certified copies of an order or decision of an arbitration committee to the superior court, whereupon the court shall render a decree and notify the parties interested, the jurisdiction of the committee was not abrogated. The findings of marriage and dependency, as well as the award of compensation, were within their province as defined in the statute, and the result, no review having been claimed, could be enforced, if necessary, by decree of the court. St. 1911, c. 751, pt. 3, § 7; St. 1912, c. 571, § 14; Pigeon's Case, 216 Mass. 51, 56, 102 N. E. 932, Ann. Cas. 1915A, 737. The payments by the insurer from September 7, 1915, until her appointment June 8, 1916, as administratrix, were made to the widow. But after appointment they were made to her under St. 1911, c. 751, pt. 2, § 13, as his legal representative. These payments in no sense were voluntary, but were in compliance with the determination of the committee which on the present record was final. Opinion of the Justices, 209 Mass. 607, 96 N. E. 308. See Diaz's Case, 217 Mass. 36, 104 N. E. 384. The last payment on June 6, 1923, with the preceding payments fully satisfied the award. The court of probate, however, on the defendant's petition had by decree entered October 31, 1924, revoked the decree appointing the...