In re Gillard

Citation138 N.E. 384,244 Mass. 47
PartiesGILLARD'S CASE.
Decision Date01 March 1923
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Appeal from Superior Court, Suffolk County; Hammond, Judge.

Proceeding under the Workmen's Compensation Act by Annie M. Gillard, alleged widow, and Jessie Annie Gillard and another, children, for compensation for the death of Edward C. Gillard, opposed by the Bethlehem Shipbuilding Corporation, employer, and the United States Mutual Liability Insurance Company, insurer. Compensation was denied by the Industrial Accident Board, but granted to the children by the superior court, and the insurer appeals. Affirmed.

The question before the board were those of jurisdiction and dependency. The injury causing the death was sustained on board a ship in course of construction and then tied up at a dock in navigable waters. The member of the board found that, because the injury occurred on navigable waters, the board was without jurisdiction, and the full board on review affirmed and adopted this rule. The superior court awarded the children $10 a week for 400 weeks, unless sooner terminated under the act.

Elias Field and Brown, Field & McCarthy, all of Boston, for appellant.

Jeremiah F. Kiley, of Natick (Joseph D. Taylor, of Boston, of counsel), for appellee.

RUGG, C. J.

This is a proceeding under the Workmen's Compensation Act. The case was heard by a board member, who stated as agreed facts that the employee received an injury in the course of and arising out of his employment on the ship Cohasset on November 14, 1918, and that the employer had knowledge of the injury. He then stated that the questions were:

(1) The insurer contends that the injury occurred on a ship in navigable waters and therefore the board is without jurisdiction; and (2) dependency.’

The board member made report of the evidence, found that the injury ‘occurred on navigable waters,’ and ruled that the case was not within the jurisdiction of the board and dismissed the claim. The Industrial Accident Board on review stated the ‘questions' to be (1) Jurisdiction; (2) dependency,’ found that the ‘report of the board member contains all the material evidence,’ and affirmed the ruling of the board member on the jurisdictional ground. The case then came before the superior court, where a decree was entered reciting that it ‘was agreed by the parties that at the time of the injury for which compensation is sought, the employee was engaged in the work of the original construction of a vessel which had theretofore been launched,’ and adjudging ‘that the work of the employee at the time of said injury was nonmaritime in its nature,’ and ordering the insurer to make payments to the two minor children of the deceased employee at the rate of $10 per week. It was agreed that the wages of the employee were sufficiently large to entitle total dependents to that sum as the maximum.

The original claimants were Annie M. Gillard, alleged widow, and Jessie and George C. Gillard, minor children. During the hearings before the board member Annie M. Gillard withdrew as claimant, leaving the minor children as the only claimants.

The reported evidence, which was not contradicted in any particular and which manifestly formed the basis of the findings of fact of the board member and to which resort may be had as background for the findings of the Industrial Accident Board, was in substance that the ship Cohasset was launched on November 3, 1918, at the Quincy yard of the Fore River Shipbuilding Corporation into the Fore river, which is navigable water; that the ship then was towed around to the dock, to which it was tied with manila and steel wire lines; that a portable gangway, which was lifted over the side of the ship, and which was not secured in any way, except by its own weight, was put on board for workmen to get on and off the ship; that the ship was then about 75 per cent. completed, no engines, boilers or machinery, except some piping, being then installed; that all these were put into the ship while she was tied up to the dock; and that after completion the ship was delivered to the government, and that the employee was doing some kind of carpentering work in connection with the completion of the ship while she was to that end tied up to the dock.

The words of G. L. c. 152 § 1 (4), are that ‘employee,’ as used in the act, means ‘every person in the service of another under any contract of hire, express or implied, oral or written, except masters of and seamen on vessels engaged in interstate or foreign commerce. * * * ’

[1][2] The words of the Workmen's Compensation Act, now G. L. c. 152, formerly St. 1911, c. 751, are broad enough in their scope to include maritime torts except and so far as jurisdiction of the General Court of Massachusetts in that particular is excluded by the grant of power to the United States in ‘all cases of admiralty and maritime jurisdiction.’ Const. U. S. art. 3, § 2, and article 1, § 8. In several instances jurisdiction under the workmen's compensation act over an injury which might have been argued to be maritime in its nature was taken without the point being raised, discussed or thought of. Gillen's Case, 215 Mass. 96, 102 N. E. 346, L. R. A. 1916A, 371; Brightman's Case, 220 Mass. 17, 107 N. E. 527, L. R. A. 1916A, 321;McManaman's Case, 224 Mass. 554, 113 N. E. 287. The only significant point in this connection is that by a verbal interpretation of our Workmen's Compensation Act, apart from constitutional considerations, maritime torts are included. Dorman's Case, 236 Mass. 583, 584,129 N. E. 352.Although these words are broad enough, as mere matter of grammatical construction, to include strictly maritime torts exclusively within admiralty jurisdiction, yet it is familiar law (to quote the words of Chief Justice Knowlton) that--

‘A statute which would be unconstitutional as applied to a certain class of cases, and is constitutional as applied to another class, may be held to have been intended to apply only to the latter class, if this seems in harmony with the general purpose of the Legislature.’ Attorney General v. Electric Storage Battery Co., 188 Mass. 239, 241, 74 N. E. 467, 469 (3 Ann. Cas. 631);Manchester v. Popkin, 237 Mass. 434, 440, 130 N. E. 62;United States v. Standard Brewery, Inc., 251 U. S. 210, 220, 40 Sup. Ct. 139, 64 L. Ed. 229.

The Workmen's Compensation Act, therefore, must be and is interpreted as intended only to operate upon the classes of employment and injury within the jurisdiction of the general court. On the other hand, the words of the act and its chief aim render the conclusion irresistible that the General Court intended to make the act applicable to all classes of injuries therein described which are within its jurisdiction. ‘The statute is as broad as the jurisdiction of the commonwealth.’ Kinney v. Treasurer and Receiver General, 207 Mass. 368, 369, 93 N. E. 586, 587 (35 L. R. A. [N. S.] 784, Ann. Cas. 1912A, 902).

In none of the cases which have come before us since the decisions 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, have we undertaken to delimit the jurisdiction of the commonwealth under the Workmen's Compensation Act, further than to apply to specific cases the principles of that decision as we understood them. Duart v. Simmons, 231 Mass. 313, 121 N. E. 10; Id., 236 Mass. 225, 128 N. E. 32;Sterling's Case, 233 Mass. 485, 124 N. E. 286;Proctor v. Dillon, 236 Mass. 538, 544, 545, 129 N. E. 265;Sterling v. Frederick Leyland & Co., Limited, 242 Mass. 8, 136 N. E. 60. The language of that act, in view of its beneficent purpose, ought not to be narrowed any further than jurisdictional bounds demand.

So far as our own decisions are concerned, we are quite at liberty to extend the Workmen's Compensation Act to any case to which it is applicable under adjudications of the Supreme Court of the United States, and it is our duty so to extend it in order to effectuate the intention of the Legislature.

It seems to us that the case at bar is indistinguishable on its facts from those in Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469, 42 Sup. Ct. 157, 66 L. Ed. 321. That was a proceeding in admiralty to recover damages for personal injuries to an employee while at work as carpenter on a pertially completed vessel lying at dock in navigable waters within the state of Oregon. In that state there was operative a Workmen's Compensation Act (Laws Or. 1913, c. 112, as amended), which in effect gave both to employer and employee an option to accept or reject the law, and which, if not rejected, made the relief afforded thereby to the employee in lieu of all claims against his employer for injuries or death, with exceptions not here relevant. Neither the employer nor employee took the steps necessary to reject the act and thereby both came within its operation. It was held that, although the injury was maritime, because occurring in navigable waters, nevertheless the exclusive features of the Oregon Workmen's Compensation Act applied and abrogated the right to recover damages in an admiralty court which otherwise would exist. It was said (257 U. S. 475-476, 42 Sup. Ct. 158, 66 L. Ed. 321) that the contract for the construction of the vessel--

‘was nonmaritime, and although the incompleted structure upon which the accident occurred was lying in navigable waters, neither Rohde's [the employee's] general employment, nor his activities at the time had any direct relation to navigation or commerce. Thames Towboat Co. v. The Francis McDonald, 254 U. S. 242. The injury was suffered within a state whose positive enactment prescribed an exclusive remedy therefor. And as both parties had accepted and proceeded under the statute by making payments to the Industrial Accident Fund it cannot properly be said that they consciously contracted with each other in contemplation of the general system of maritime law. ...

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