de Gray v. Miller Bros. Const. Co., Inc.
| Decision Date | 01 May 1934 |
| Citation | 173 A. 556 |
| Parties | DE GRAY v. MILLER BROS. CONST. CO., Inc., et al. |
| Court | Vermont Supreme Court |
Appeal from decision of Commissioner of Industries.
Proceeding under the Workmen's Compensation Act by Mabel P. De Gray, dependent widow of James H. De Gray, deceased, for the death of her husband, James H. De Gray, opposed by Miller Brothers Construction Company, Inc., employer, and Maryland Casualty Company, insurer. Prom an adverse decision of the Commissioner of Industries, claimant and insurer appeal.
Order vacated and proceedings dismissed.
Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.
Theriault & Hunt, of Montpelier, for claimant.
Robert W. Ready, Chas. P. Black, and J. Boone Wilson, all of Burlington, for defendant Maryland Casualty Co.
This is an appeal by Mabel P. De Gray, dependent widow of James H. De Gray, deceased, hereafter called the claimant, and an appeal by the Maryland Casualty Company, hereafter called the casualty company, from an award by the Commissioner of Industries.
The case was heard by the commissioner on an agreed statement of facts which includes certain exhibits which were introduced in evidence by the claimant.
The following facts appear from the record: The defendant, Miller Brothers Construction Company, Inc., hereafter called the construction company, is a Connecticut corporation having its office and principal place of business in Hartford, Conn. It takes road construction contracts in Connecticut and other states. In August, 1929, it entered into a contract of employment, to be performed in Connecticut and other states, with the decedent, James H. De Gray, who was a resident of Connecticut. The decedent, after working for some time in Connecticut for the construction company, was sent by the latter to Vermont to work on a road construction job at East Ryegate, for which it had contracted. The decedent, while working on the job in Vermont, received a fatal injury which arose out of and in the course of his employment. The claimant, who lives in Connecticut, on her application therefor as dependent widow, was awarded compensation in Connecticut against the construction company, as employer, under the provisions of the Compensation Law of that state, and it has paid such compensation to the claimant. No appeal was taken from that award.
When the construction company began work in Vermont it procured in Vermont, in compliance with the provisions of the Workmen's Compensation Act of this state (G. L. 5752 et seq., as amended), a policy of compensation insurance from the casualty company which covered its operations in Vermont. It also had a policy of compensation insurance which it had procured in Connecticut from the Indemnity Insurance Company of North America, in compliance with the provisions of the Workmen's Compensation Act of that state (Gen. St. Conn. 1930, § 5223 et seq.), which covered its operations in the states of Connecticut and New York. Both policies were in force when the decedent was injured.
Following the award in Connecticut, the construction company brought an action in Connecticut against the two insurers in which it sought recovery for the sums it had expended under the award, and for expenses and an order requiring them, one or both, to pay compensation to the claimant in accordance with the terms of the policies. A judgment was rendered for each defendant in the lower court. On an appeal to the Supreme Court of Errors of Connecticut, it was held by that court that, by reason of certain restrictive provisions in the policy of the indemnity company, the coverage of its policy was limited to business operations of the construction company in the states of Connecticut and New York, including such operations as were necessary, incident, and appurtenant thereto, and that it did not cover the decedent while working on the Vermont job. It was held, as to the casualty company, that its "obligation, if any, was determinable by the Compensation Law of the State of Vermont, and no award by a commissioner in Connecticut could in itself create liability under the Vermont Act." It was held that there was no error in the proceedings in the lower court. Miller Bros. Construction Co. v. Maryland Casualty Co. et al., 113 Conn. 504, 155 A. 709.
After the decision in that case, the claimant brought this petition against the construction company and the casualty company to the Commissioner of Industries, in which she alleges, in substance, that following the fatal accident to her husband proceedings were had before the proper compensation commissioner in the state of Connecticut, and an award of compensation was made to her against the construction company under the Compensation Law of that state; that the casualty company was a party to such proceedings, but no ruling was made there as to its claim that, since the contract of employment under which the decedent was working at the time of his injury was made in Connecticut, it was not the insurance carrier of the construction company as to such injury for cognizance by the compensation commissioner under the Compensation Law of Connecticut; that the construction company, in compliance with that award, has paid hospital and doctors' bills to the amount of $1,058.16, and compensation to the claimant in amounts aggregating $2,562; that the claimant was entitled to compensation under the Compensation Law of Connecticut, and, since the injury occurred in Vermont, she was entitled to compensation under the Compensation Law of this state; that her rights, if determinable under the law of the state of Connecticut, are such that they can be reasonably determined and dealt with by the Commissioner of Industries and courts of this state, in which the casualty company, as insurance carrier, in either event, is liable to respond to an award by the Commissioner of Industries to the extent of the benefits given by the Compensation Law of this state; that the parties have not hitherto reached an agreement in regard to compensation.
The relief sought by the claimant is stated in the language of the commissioner as follows:
The commissioner ruled, as to these requests, "that the claimant is not entitled to receive an order from the Commissioner of Industries granting the benefits of the Vermont Compensation Act, and to her personally as the dependent widow of James H. De Gray, deceased"; and, "that neither the claimant nor the employer are entitled to receive the benefits provided by the Compensation Law of Connecticut through an order of the Commissioner of Industries."
He ruled that the casualty company "is liable under its said policy to indemnify the employer for expenditures paid to said widow in compliance with the order of the Connecticut compensation commissioner, said liability to be measured, however, by the liability created by the Vermont Compensation Law in like circumstances." He found that the liability created by the Vermont Compensation Law, and due at the time of his award, was $3,500, and he made an award that the casualty company should pay that amount to the construction company.
The commissioner has certified twenty-eight questions of law arising from this case for review by this court, twenty at the request of the casualty company, and eight at the request of the claimant. These questions have not been briefed separately, so we do not give them separate consideration. Many of them involve the same question of law, and, for convenience and brevity, we group them in the form of contentions.
The parties agreed at the trial below that the commissioner might take notice of the law of the state of Connecticut and decisions relevant thereto without proof thereof, and the commissioner makes "all pertinent Connecticut law" a part of the record before us. We assume, in view of that agreement and the incorporation of the Connecticut law into the record, that it is the agreement of the parties that we shall take judicial notice of such statutory law of the state of Connecticut and the decisions of its highest court as we deem pertinent in the consideration of the questions before us, and we shall act accordingly. See Brown, Adm'r, t. Perry, 104 Vt. GO, 70, 156 A. 910, 77 A. L. R. 1294.
The casualty company contends that the commissioner lacks jurisdiction to entertain this proceeding.
Since the proceedings to administer the Workmen's Compensation Act are wholly statutory, the authority of the commissioner is limited to such powers as are conferred upon him by express legislative grant, or such as arise therefrom by implication as incidental and necessary to the full exercise of the powers granted; and, while the act is to be liberally construed, the court cannot, by construction, extend the authority of the commissioner...
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