Kennerson v. Thames Towboat Co.

• Decision Date: 10 June 1915
• Citation: 89 Conn. 367,94 A. 372
• Court: Connecticut Supreme Court
• Parties: KENNERSON v. THAMES TOWBOAT CO. MARSDALE v. SAME.

94 A. 372

89 Conn. 367

KENNERSON

v. THAMES TOWBOAT CO.

MARSDALE

v. SAME.

Supreme Court of Errors of Connecticut.

June 10, 1915.

Cases Reserved from Superior Court, New London County; William L. Bennett, Judge.

Proceedings under the Workmen's Compensation Act by Sophia Kennerson, administratrix, to recover compensation from the Thames Towboat Company for the death of Wallace J. Hodges, and by Marcia S. Marsdale, administratrix, to obtain compensation from the same company for the death of George Marsdale. Compensation was awarded and appeals taken to the superior court, which reserved the cases upon certain questions of law and as to the judgments or decrees to be rendered by that court. Judgments advised dismissing the appeals.

The decedents, Wallace J. Hodges and George Marsdale, were citizens of Connecticut. The respondent, the Thames Towboat Company, was and is a Connecticut corporation located in New London, Conn. Contracts of employment entered into in New London existed between the respondent company and Hodges, decedent of Kennerson, administratrix, and Marsdale, decedent of Marcia S. Marsdale, administratrix, under which decedents' employment upon respondent's towboats was to be in Connecticut and on waters of the high seas, and of other states. Both decedents and the respondent had accepted the provisions of part B of the Workmen's Compensation Act. The decedents were, on the 15th day of April, 1914, drowned in Raritan Bay, near South Amboy, N. J., by the foundering of the tug on which they were employed; their deaths arising out of and in the course of their employment.

Said Wallace T. Hodges left surviving him two sisters under 18, a married sister, and a mother, claimant herein. He had given his mother for upwards of 10 years half of his earnings, or $20 a month. His mother used the sums so contributed for her own support and that of her minor children. She also received other support from her husband, who earned $50 a month. None of the other children contributed to their mother's support.

Said George Marsdale left surviving him two brothers, a sister, and a mother, claimant herein. He had during the illness of his father sent his mother from July until his father's death, November 10, 1913, $10 a week of his weekly wages of $15. After her husband's death the mother went to live with her son Charles temporarily, and on December 9, 1913, the decedent engaged in said employment with the respondent for $30 a month and his board, worth $.50 a day. Out of his earnings the decedent gave his mother from $20 to $25 a month, which sums were to pay the funeral expenses of her husband. These were just paid prior to George's death. The mother and decedent had arranged that as soon as the funeral expenses were paid her residence with her son Charles should cease, and they should then live together, and the decedent should support his mother. Except as stated, none of the children contributed to the support of their mother.

From the foregoing facts the commissioner found that Mrs. Kennerson, the mother of Wallace T. Hodges, was a partial dependent of her son Wallace, and that Mrs. Marsdale, the mother of George Marsdale, was a total dependent of her son George.

In Kennerson v. Thames Towboat Co.:

Hull, McGuire & Hull, of New London, for appellant. Waller, Waller, Avery & Gallup, of New London, for appellee.

In Marsdale v. Thames Towboat Co.:

Hadlai A. Hull and Frank L. McGuire, both of New London, for appellant. Christopher L. Avery, of New London, for appellee.

WHEELER, J. (after stating the facts as above). The reservation raises three questions for decision: (1) Whether recovery under the Compensation Act may be had for the injury resulting in the death of these decedents; (2) whether the claimants, or either of them, were entitled to compensation under the act; and (3) what judgment should be rendered by the superior court.

Before proceeding to the discussion, it is well to restate the position before the superior court of appeals from the finding and award of a compensation commissioner. The compensation commissioner is an executive officer engaged in administrative duties. The superior court cannot on appeal retry the facts. It inquires into the facts merely to determine whether "the finding and award appealed from are unauthorized in law, irregular or informal, or based upon a misconception of the law, or of the powers or duty of the administrative tribunal, or are so unreasonable as to justify judicial interference." If it so find, it will set aside the award; otherwise it will dismiss the appeal. Hotel Bond Company Appeal, 89 Conn. 143, 93 Atl. 245.

The accident resulting in the death of Hodges and Marsdale, for which compensation is claimed under our Compensation Act, occurred in the waters of Raritan Bay; whether on the high seas or within the navigable waters of New Jersey, the record does not distinctly specify. The parties on the argument have agreed that it occurred in the navigable waters of New Jersey, and we shall so assume. The decedents and the respondent were citizens of Connecticut The contracts of employment between them were made in Connecticut, to be performed partly within and partly without the state.

The parties to each contract had accepted the provisions of part B of our Workmen's Compensation Act. As a consequence, the act became a part of these contracts, part consideration of which was the promise of the employer to pay the compensation for injury provided by the act, and the promise of the employé to accept such compensation in full for all rights and claims arising out of injuries sustained in the course of his employment. The relation arising between these employers and employés was that of contract. Recovery was not dependent upon the fault of the employer, but upon the terms of the contract made. Acceptance of the act, whether made expressly or impliedly, as permitted by the act, made its provisions a part of these contracts of employment. The significance of the contract relation is foundational in the consideration of these cases, as, indeed, it must be in the consideration of many of the questions likely to arise under any compensation act contractual in character.

Since the injury for which compensation is sought occurred in the navigable waters of New Jersey, the respondent insists that the admiralty court has exclusive Jurisdiction. Maritime torts, contracts, and claims are cognizable in admiralty. Torts depend on locality; contracts and claims, upon their character. As to in rem actions the jurisdiction of the admiralty court is exclusive. As to personal actions it is not.

The clause in the Judiciary Act of 1789, now section 256, c. 231, Act March 3, 1911 (the Judicial Code of the United States), "saving to suitors in all cases the right of a common-law remedy, where the common law is competent to give it," was inserted in order to make clear that the grant of judicial power to the United States in all cases of admiralty did not deprive the suitor of his common-law remedies. The common-law remedies do not mean remedies in the common-law courts. They embrace all methods of enforcing rights and redressing injuries known to the common or statutory law. Our state courts have from the beginning enforced remedies to redress torts and sustain rights arising under contracts, and their jurisdiction so to do has been from the earliest time an established judicial fact. The Hine v. Trevor, 4 Wall. 555, 567, 18 L. Ed. 451.

The Jurisdiction of the state courts over torts occurring on that part of the sea not under the control of a state is admitted. Martin v. Hunter, 1 Wheat. 304, 337, 4 L. Ed. 97. And likewise for a similar reason the jurisdiction of the state courts over torts occurring in the navigable waters of the state is established. The Hamilton, 207 U. S. 398, 403, 28 Sup. Ct. 133, 52 L. Ed. 264. If this proceeding were one to secure a recovery for a tort, the place of the injury would determine the right of recovery. Pendar v. Mach. Co., 35 R. I. 321, 87 Atl. 1. The attempt in this proceeding is to secure through a procedure prescribed by statute recovery of compensation for injury under a contract authorized by statute.

The contract in question may be assumed to be a maritime one. That would give the admiralty court the right to take jurisdiction over it. It could not take from our courts jurisdiction over a contract made in Connecticut by citizens of Connecticut, nor prevent its enforcement wherever it is operative by the procedure of the state of its origin. This contract is to be interpreted and enforced by the application of the same principles accorded any contract. A contract for work to be done, or services to be performed, or goods to be delivered, in a jurisdiction other than the place of contract, is as enforceable in the state where the contract was made as in that where it was to be performed, unless the contract be against the law or the public policy of that jurisdiction, or its legal machinery is inappropriate or inadequate to its enforcement. Plainly this proceeding is a personal action, and not one in rem. The admiralty court has not exclusive jurisdiction. Knapp, Stone & Co. v. McCaffrey, 177 U. S. 638, 643, 648, 20 Sup. Ct. 824, 44 L. Ed. 921; Schoonmaker v. Gilmore, 102 U. S. 118, 26 L. Ed. 95; Leon v. Galceran, 11 Wall. 185, 20 L. Ed. 74; The Belfast, 7 Wall. 624, 19 L. Ed. 266; The Hine v. Trevor, 4 Wall. 555, 567, 568, 18 L. Ed. 451; Manchester v. Mass., 139 U. S. 240, 262, 11 Sup. Ct. 559, 35 L. Ed. 159.

Again, it is insisted that an action for the injury in question is given in the admiralty court, and hence, under section 40 of the Compensation Act, it does not apply to this case. By this section the liability must have occurred in interstate or foreign commerce. There is nothing in the record to indicate whether the injury occurred while the employé was engaged in interstate or foreign commerce. If this be...