In re Chisholm
| Decision Date | 25 May 1921 |
| Citation | 131 N.E. 161,238 Mass. 412 |
| Parties | CHISHOLM'S CASE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Suffolk County; Frederick Lawton, Judge.
Proceeding before the Industrial Accident Board by Mary Chisholm for compensation for the death of her husband, Daniel J. Chisholm, opposed by the Town of Lexington, alleged employer, and the Employers' Liability Assurance Company, Limited, insurer. Compensation was awarded, and from the decree on the award, the alleged employer appeals. Affirmed.
It was agreed on the hearing before a member of the Industrial Accident Board that Chisholm received a personal injury in the course of and arising out of his employment which resulted in his death, that he was an employee of Louis W. Bills, and that Bills was an independent contractor performing work for the engineers of the fire department of the town of Lexington.
After copies of the reports, findings and decision were filed in the superior court, the town moved to recommit the case to the Industrial Accident Board in order that proper notice of the decision might be given the town to enable it to appeal. The motion was granted and the board then filed the same decision and gave due notice.Timothy F. Collins, of Boston, for claimant.
Robert L. Ryder, of Boston, for town of Lexington.
This case was heard first by a single member of the Industrial Accident Board, and then by the full board on review. On Noevember 14, 1919, the decision of the board in favor of the dependent was filed and notice sent by mail, addressed to ‘Nathan B. Bidwell, Esq., Town Hall, Lexington, Mass.’ (who apparently was assumed by the board to represent the town of Lexington), and to the attorney representing the dependent. On December 1, 1919, ‘copies of reports, findings and decision’ were filed in the superior court by the dependent.
This entry was not a presentation of the papers to the superior court ‘within ten days after the notice of the filing’ of the order or decision by the Industrial Accident Board (taking that notice at its face value), as required by St. 1911, c. 751, part III, § 11, St. 1912, c. 571, § 14, and by St. 1917, c. 297, § 7, in all cases when the parties desire to appeal generally from the decision of the Industrial Accident Board to the superior court. There are, nevertheless, numerous instances where a party, successful in his contentions before the Industrial Accident Board, may need the aid of the superior court, and when that court has jurisdiction to render such aid. The entry of the copies by the dependent put her in a position to invoke the assistance of the court so far as needed.
The town presented to the Industrial Accident Board between December 1 and December 11, 1919, a motion that the decision rendered November 14, 1919, ‘be vacated.’ This motion was heard on December 11, 1919, and the decision was filed on December 20, 1919, in these words:
‘This motion is denied for lack of jurisdiction, the case now being before the superior court for further action as provided by part III, § 11, of the act.’
No appeal was taken from that decision and its correctness is not before us.
On December 27, 1919, the town of Lexington filed a motion in the case pending in the superior court by reason of the presentation of papers by the dependent on December 1; 1919, praying that the--
‘case be recommitted to the Industrial Accident dent Board so that said Industrial Accident Board may vacate a decision rendered on or about November 14, 1919, so that the Industrial Accident Board my give further and proper notice as provided in the statutes to said town of Lexington in reference to said decision, and that the said Industrial Accident Board may take such other and further action as under the circumstances may be meet and proper to give said town of Lexington the right to appeal to the Supreme Judicial Court of our commonwealth on matters pertaining to this case, all this for the reasons set forth in an affidavit hereto attached.’
The affidavit was signed by Mr. Bidwell and set out that Robert Ryder, Esq., was counsel of record for the town in the Chisholm Case before the Industrial Accident Board, and request by him that the--
‘deponent appear for him and in his behalf before said Industrial Accident Board, * * * said Robert L. Ryder, Esq., being ill and out of the city and thereforeunable to attend said hearing.’
Further words of the affidavit are:
‘That I, the said Nathan B. Bidwell, on said date did appear before said board at said hearing specifically explaining to the board the cause of said Ryder's absence, and that I was merely appearing for him in the matter temporarily until he recovered sufficiently to attend to this case, said Ryder still being attorney of record in the case, and that I did not intend to appear and did not appear as counsel of record in the matter.’
There are additional statements of a severe injury to the deponent which utterly incapacitated him from receiving or attending to the notice of the decision of the Industrial Accident Board sent on November 14 until long after the 10 days had expired, and that no notice was sent to Mr. Ryder, counsel of record in the Industrial Accident Board, who learned of the decision also after the expiration of the 10 days from November 14, 1919, and of the time for claiming an appeal from the decision. The record states that ‘after due hearing upon the aforesaid motion’ the judge of the superior court entered an order in these words:
The dependent seasonably appealed from this order or decree.
Pursuant to the order of recommittal, the Industrial Accident Board on March 24, 1920, filed a new decision in the same words as its decision of November 14, 1919, and gave due notice thereof. For the purpose of appealing from that decision, the town of Lexington seasonably thereafter presented the requisite copies to the superior court. A decree was entered in the superior court in favor of the dependent in accordance with the decision of the Industrial Accident Board. The appeal of the town brings the case here.
The entry of the case by the dependent in the superior court on December 1, 1919, if in truth and in fact after the expiration of 10 days from the giving of notice, ordinarily would not have conferred upon any party a right of appeal from the decision of the board. The only function of the court under such circumstances commonly is to enforce the finding of the Industrial Accident Board unless there is legal reason to the contrary. If in truth and in fact no notice of the award of the board had been given to the other party to the controversy (unless possibly the right had been waived or for some other extraordinary cause the notice might be omitted), that would be a sufficient reason why the award should not be enforced. When a party desires to have reviewed according to the statute the errors of law made in an award of such a purely administrative tribunal as is the Industrial Accident Board, and is deprived of exercising that right by reason of failure by the board to give the notice of its decision as required by the statute, it would be manifestly just for the superior court to refuse its aid in enforcing such award, unless on an inspection of the whole record it was free from harmful error. On such motion as was filed by the town on December 27, 1919, it was within the jurisdiction of the superior court to inquire into and decide the question whether notice had been given as required by the statute. It was necessary to determine that point in order to reach a conclusion whether the award ought to be enforced. This branch of the case is within the authority of Sciola's Case, 236 Mass. 407, 128 N. E. 666, and the decisions there reviewed.
It is not certain from the record whether the judge heard the motion to recommit only on the affidavit or whether he received other evidence or statements treated as evidence. If he pursued the latter course, it cannot be said that his finding was unwarranted because the evidence is not reported. If he heard the motion on the affidavit alone, we cannot say that his finding was without...
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