Jarka Corporation v. Monahan
| Decision Date | 29 December 1932 |
| Docket Number | No. 2733.,2733. |
| Citation | 62 F.2d 588 |
| Parties | JARKA CORPORATION et al. v. MONAHAN, Deputy Commissioner, et al. |
| Court | U.S. Court of Appeals — First Circuit |
La Rue Brown, of Boston, Mass. (Richard Field, and Brown, Field & McCarthy, all of Boston, Mass., on the brief), for appellants.
George L. Dillaway, of Boston, Mass., for appellee Nellie Barnes.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
This is an appeal from a decree of the District Court for the District of Massachusetts dismissing the appellants' bill to enjoin the enforcement of a compensation order made under the Act of March 4, 1927, entitled the "Longshoremen's and Harbor Workers' Compensation Act" chapter 509, 44 Stat. 1424 (33 USCA §§ 901-950). The appellants are the employer and insurance carrier, respectively, while the appellees are the deputy commissioner appointed under the act and the surviving wife, in whose favor, for the benefit of herself and her minor children, the compensation order was made for injuries resulting in the death of her husband. Jurisdiction to restrain the enforcement of an order of the deputy commissioner is conferred upon the District Courts by section 21 (b) of the act (33 USCA § 921(b).
Arthur Barnes, an employee of the Jarka Corporation of Boston, died on December 7, 1929, as the result of injuries received on December 5, 1929, due to defective equipment of a vessel, owned by a third party, on which he was working. His widow and administratrix exercised her right under section 33 (a) of the act (33 USCA § 933 (a), and in April, 1930, brought a libel against the vessel. Her action was settled in November, 1930, with the approval of the employer of the injured workman, by the payment to the administratrix of the sum of $5,500.
Under section 33 (g), if a compromise with a third person responsible for the injury is made with the consent of the employer, and the amount received under such compromise is less than the compensation to which the workman would be entitled under the act, "the employer shall be required to pay as compensation under this chapter a sum equal to the excess of the amount which the commission determines is payable on account of such injury or death over the amount recovered against such third person." (It is clear, we think, that there was an error in the reference to a previous section in subdivision (g) of section 33. The reference obviously should have been to subdivision (f) and not subdivision (e).
On application to the commission, the deputy commissioner made an award requiring the employer and insurance carrier to pay an additional sum of $2,250 in a lump sum as a death benefit to the surviving wife and her minor children. From this award the employer and insurance carrier appealed, and it was set aside by the District Court 48 F.(2d) 283, on the ground that there was no basis for making such an award in a lump sum, and no evidence that the deputy commissioner, in making the award, proceeded under section 14 (j), (33 USCA § 914 (j), which provides for an award of a lump sum under certain conditions to be found by the deputy commissioner. The deputy commissioner afterward made the award here involved of $2,000 payable in weekly payments of $9.45 to the widow, and $2.70 weekly for the use of each of the minor children, or a total of $14.85, payments to date from December 7, 1929, the date of the workman's death.
This in effect awards the maximum amount to which the widow and children were entitled under the act, viz. $7,500.
No question is raised by the appellants as to the propriety of this award as to the amount or the manner of its payment. The sole issue here is, On what date shall the payments begin? The appellants contend that the amount recovered of a third person should be treated as compensation under the act, and first applied in...
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