In re Derinza

• Decision Date: 04 March 1918
• Parties: In re DERINZA. In re PUCCI. In re CONTRACTORS' MUT. LIABILITY INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

229 Mass. 435

118 N.E. 942

In re DERINZA. In re PUCCI. In re CONTRACTORS' MUT. LIABILITY INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 4, 1918.

Appeal from Superior Court, Suffolk County.

Proceedings under the Workmen's Compensation Act by Giovanni Pucci, administrator, to recover compensation for the death of Michael Derinza, the employé, opposed by Fred T. Ley & Co., Incorporated, the employer, and the Contractors' Mutual Liability Insurance Company, the insurer. Compensation was awarded by the Industrial Accident Board, and, from the decree of the superior court confirming the award, the insurer appeals. Decree ordered reversed, and cause remanded to the Board for further hearing on the question of dependency.

The question as to the intention of decedent when he left Italy to rejoin his wife and children, in the deposition of his widow taken by commission in Italy, was as follows:

‘When your husband left Italy, was it his intention to return to rejoin you and his children?’

Norman F. Hesseltine and J. Frank Scannell, both of Boston, for appellant.

Sawyer, Hardy, Stone & Morrison, of Boston (Gay Gleason, of Boston, of counsel), for appellee Derinza.

RUGG, C. J.

The deceased admittedly received fatal injuries in the course of and arising out of his employment by a subscriber under the Workmen's Compensation Act.

1. There were irregularities in the application for the deposition to take the evidence of the widow of the deceased. Prior to the enactment of St. 1915, c. 275, § 1, there was no special provision for the taking of depositions in foreign countries in workmen's compensation cases. Letters rogatory could not issue in such cases. Martinelli's Case, 219 Mass. 58, 106 N. E. 557. The entire subject is now covered by that statute. The present deposition purports to have been taken under its terms. Therefore the words of the statute afford the sole guide as to the necessary steps. It expressly provides that a commission to take a deposition shall issue ‘upon the written request of the board or of any member thereof.’

2. There was in the case at bar no ‘written request’ whatever. The filing certificate of the clerk of the superior court shows that the application was made by the Industrial Accident Board but not that it was made in writing. The filing of the interrogatories by the secretary of the board was not a written request for a commission, but was an utterly different matter. Interrogatories are expressly required by the statute, and are the essential basis for the taking of a deposition. That is one thing. The written request for a commission is another and quite separate thing. It cannot rightly be said that the writing out of the interrogatories by the secretary of the board was a written request for the issuing of a commission to a consul of the United States in Italy to take a deposition.

3. The making of a written request for a deposition by the Industrial Accident Board hardly can be said to be a merely formal requirement. It is to be made by a public board acting impartially and not as an adversary party. The written request is a matter of substance. It frequently might be open to inference, as it is in the case at bar, in view of the certificate of the clerk of the superior court, that the commission was issued at the request of the board, and that the omission of the board to make the written request was by mistake or oversight. If so, it could be cured by the filing of a written request by the board or some member of it, and the allowance of that request by the superior court by a nunc pro tunc order. Perkins v. Perkins, 225 Mass. 392, 396, 397, 114 N. E. 713.

4. The case has been argued as if the request for the commission to take the deposition had been made by the secretary of the board in its behalf. The secretary of the board cannot make such request. The board is empowered by part 3, § 2, of the act (St. 1911, c. 751) as amended (St. 1912, c. 571, § 7) to ‘appoint a secretary’ and to ‘remove him.’ No provision fixing his duties has come to our attention. The phrase of the statute is that the commission to take a deposition shall issue ‘upon the written request of the board or any member thereof.’ These words fairly interpreted mean that the application must be actually signed by the board or by some member of the board. The statutory words impose a personal responsibility in making the application to be manifested by the signatures of the board or some member of it. They do not mean that the application is a purely clerical matter which may be delegated to an agent, officer, or employé. A written request by the secretary of the board cannot be held the equivalent of a ‘written request by the board or any member thereof.’ See R. L. c. 8, § 3, subd. 25; Finnegan v. Lucy, 157 Mass. 439, 32 N. E. 656.

5. It does not follow, however, that the deposition must be rejected. No objection was made to the form of the deposition until it was offered in evidence before the arbitration committee. The insurer filed interrogatories and hence must have known or had the opportunity for observing this irregularity at its inception. It has been held that objections to irregularities in the form of a deposition must be taken in some appropriate manner by notice, motion to suppress, or otherwise, before the trial opens, or they will be held to be waived. It is only objections to the substance of the interrogatories or answers that avail when presented for the first time at the trial. Atlantic Mutual Fire Ins. Co. v. Fitzpatrick, 2 Gray, 279;Palmer v. Crook, 7 Gray, 418;Howard v. Stillwell & Pierce Mfg. Co., 139 U. S. 199, 205, 11 Sup. Ct. 500, 35 L. Ed. 147;Bibb v. Allen, 149 U. S. 481, 489, 13 Sup. Ct. 950, 37 L. Ed. 819.

6. It appears from the report of the arbitration committee that direct interrogatories were drafted and signed by the secretary of the board ‘in behalf of’ the claimant, and that ‘he was acting for a committee on arbitration which had been formed to hear the case.’ The further fact is stated that ‘the alleged widow lives in a foreign land. She is without counsel in these proceedings.’ It does not appear that the insurer knew of the fact that the interrogatories were thus framed until advised of by it the report of the arbitration committee. Its objection to the deposition on this ground is treated as open to it. There is no necessary incompatibility between the duty imposed upon the arbitration committee of passing upon the rights of the dependents and the insurer, and the preparation of interrogatories to the widow of a deceased employé by the secretary of the board at the request of such committee under the circumstances here disclosed. An examination of the interrogatories does not disclose such a partial attitude of mind as to warrant the inference that the arbitration committee, assuming that they directed the line of inquiry or the particular phrase of the questions, disqualified themselves from performing the duty imposed on them by the statute.

7. There is nothing in the objection to the admission of the deposition on the ground that it did not appear that the deponent could be punished for perjury in the place where it was taken. The commission was in usual form directed to a consular officer of the United States accredited to a civilized nation. The return was in due form. This was enough to make the deposition admissible prima facie. R. L. c. 175, §§ 42, 45. There is nothing in Com. v. Smith, 11 Allen, 243, to the contrary.

8. There is no reversible error in the answers to the interrogatories, so far as these have been argued orally or upon the brief of the insurer. The question as to the intention of the deceased husband when he left Italy to rejoin his wife and children, was objectionable in form; but the answer was responsive. It doubtless would have been remedied if objection had been made when the interrogatories were filed. No other point has been argued in this connection.

9. It is urged that nonresident aliens domiciled in a friendly nation are not entitled to the benefit of the provisions established by the Workmen's Compensation Act for the compensation of those dependant upon the earnings of a deceased employé. Cases where awards to such aliens have been sustained by this court without the question having been raised are passed by and the case is considered on its merits. The starting point in this commonwealth is Mulhall v. Fallon, 176 Mass. 266, 57 N. E. 386,54 L. R. A. 934, 79 Am. St. Rep. 309. That case held that nonresident aliens were entitled to the penalty awarded to dependents by the Employers' Liability Act against an employer wrongfully causing the death of an employé. The reasons for that decision are there set forth at length. The same reasoning has since led to a similar decision by the Supreme Court of the United States respecting the federal Employers' Liability Act (McGovern v. Phila. & Reading R. R., 235 U. S. 389, 35 Sup. Ct. 127, 59 L. Ed. 283), and by the Court of King's Bench in England respecting the English Employers' Liability Act (Davidson v. Hill, [1901] 2 K. B. 606). To the same effect are Cetofonte v. Camden Coke Co., 78 N. J. Law, 662, and cases collected at page 669, 75 Atl. 913,27 L. R. A. (N. S.) 1058,Atchison, Topeka & Santa Fé Ry. v. Fajardo, 74 Kan. 314, 86 Pac. 301,6 L. R. A. (N. S.) 681, and Kellyville Coal Co. v. Petraytis, 195 Ill. 217, 63 N. E. 94,88 Am. St. Rep. 191. There is no sound distinction in principle between Mulhall v. Fallon and the case at bar. The difficulties of investigating the facts as to the dependency of nonresident aliens, the temptation to fraud, and the obstacles as to making payments, urged by the insurer against this construction, appear to be no greater in one class of cases than in the other. So far as these circumstances afford opportunities for overreaching, they are legislative rather than judicial questions. There is in the words of our act no exclusion...