London Guarantee & Accident Co. v. Dempsey (In re Dempsey)

• Decision Date: 26 June 1918
• Citation: 230 Mass. 583,120 N.E. 75
• Parties: DEMPSEY'S CASE. LONDON GUARANTEE & ACCIDENT CO., Limited, v. DEMPSEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

230 Mass. 583

120 N.E. 75

DEMPSEY'S CASE.LONDON GUARANTEE & ACCIDENT CO., Limited,

v.DEMPSEY.

Supreme Judicial Court of Massachusetts, Suffolk.

June 26, 1918.

Appeal from Superior Court, Suffolk County.

Appeal from Supreme Judicial Court, Suffolk County.

Proceedings under the Workmen's Compensation Act by Agnes Dempsey for compensation for the death of her husband, Daniel E. Dempsey, opposed by T. Owen Tully, the employer, and the London Guarantee & Accident Company, Limited, the insurer. Compensation was awarded, the widow petitioned for entry of decree and issuance of execution, and from decree of the superior court for her, the insurer appealed, and applied for suspension of decree pending appeal. From an order made by a single justice of the Supreme Judicial Court, the widow appeals. Order affirmed, and insurer's appeal from the decree of the superior court dismissed.

R. H. Smith and Wm. G. Thompson, both of Boston, for plaintiff.

H. S. Avery, of Boston, for insurer.

RUGG, C. J.

The material facts disclosed by the pleadings in these records are that Daniel E. Dempsey was an employé of T. Owen Tully, who was a subscriber under the Workmen's Compensation Act. The employé received mortal injuries in the course of and arising out of his employment on November 2, 1916. The widow of the employé and the insurer thereafter entered into an agreement for compensation under the act, a memorandum of which was filed with, and on May 17, 1917, approved by the Industrial Accident Board, and no appeal was taken therefrom. St. 1911, c. 751, pt. 3, § 4, as amended. Payments were made in accordance with the terms of that agreement up to August 9, 1917, when the insurer, without the assent of the dependent or the employé, and without the approval of the Industrial Accident Board (St. 1916, c. 90, § 1), ceased to make payments. The dependent thereupon filed in the superior court a petition with appropriate allegations setting forth a copy of the agreement and of the approval of its terms by the Industrial Accident Board, and praying for the entry of a decree and the issuance of an execution for the payments due under the agreement. St. 1911, c. 751, pt. 3, § 11, as amended by St. 1912, c. 571, § 14, and St. 1917, c. 297, § 7. A decree was entered in accordance with the petition and execution ordered. The insurer claimed an appeal in due form. The insurer then filed in the Supreme Judicial Court a petition alleging, in substance, that it had entered into the agreement and had made the payments until August 8, 1917, when for the first time its attention was called to the judgment in Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, Ann. Cas. 1917E, 900, decided in May, 1917, which it interprets as holding that the Workmen's Compensation Act has no bearing upon accidents occurring on navigable waters; that the mortal injury to the deceased employé occurred upon the steamship Devonian while lying at the wharf in the navigable waters of Boston Harbor, and that hence it was not liable under the act, and praying that the decree of the superior court be suspended until the merits of its contentions could be decided by this court.

There was no error of law in the conditional order of the single justice suspending the decree of the superior court under St. 1915, c. 132. That statute provides in effect that orders and decisions of the Industrial Accident Board and decrees of the superior court, decisions of the arbitration committee from which no appeal has been taken, and agreements approved by the board, shall have effect notwithstanding appeal unless otherwise ordered by a justice of this court. It is a strong exercise of legislative power to compel a party to pay out money upon an alleged obligation which is contested and undecided by an authoritative adjudication. The manifest purpose of the statute is to confer upon the single justice jurisdiction to suspend, coextensive with the mandate to comply with, the...