London Guarantee & Accident Co. v. Sterling , 233 Mass. 485 ( 1919 )

Pierce, J.

Before November 2, 1916, the London Guarantee and Accident Company, Limited, issued to one T. Owen Tully a policy of insurance under the workmen’s compensation act to cover a period from January 3, 1916, to January 3, 1917. On November 2, 1916, William E. Sterling, the deceased husband of Rena E. Sterling, and William L. Sterling, the deceased husband of Maud M. Sterling, employees of the said T. Owen Tully, a carpenter contractor, in the course of their employment while engaged in installing shifting boards on the steamship Devonian while the steamship was lying at the wharf in Boston Harbor, at Boston, upon navigable water, came to their deaths through exposure to fumigating gas used on the steamship for the purpose of exterminating rats and vermin before the loading of the ship.

At some time before March 21, 1917, the insurance company and the two widows came to an agreement by which the insurance company agreed to pay to each “$10 weekly for a period of four hundred weeks,” beginning with November 2, 1916. In accordanee with St. 1911, c. 751, Part III, § 4, and amendments thereof, these agreements were signed and filed with the Industrial Accident Board on March 21, 1917. They were approved by that board on April 20 and 26, 1917. The insurance company made the agreed compensation payments as they became due up to August 8, 1917, when it learned that the United States Supreme Court in Southern Pacific Co. v. Jensen, 244 U. S. 205, in May, 1917, had decided that it was beyond the power of the several States to enact a workmen’s compensation act applicable to injuries occurring upon navigable waters. Thereupon the insurance company stopped making payments under the agreements and have made no further payments thereon. The widows and their representatives were advised by the insurance company as to the reasons why the payments were discontinued.' Subsequently each of the widows brought proceedings under Part III, § 11, in the Superior Court for a decree on the agreement. After due hearing and in accordance with the statute the petitions of the widows were allowed. Decrees based upon the memoranda of agreement were made on September 5, 1917, and the insurer appealed therefrom. The act makes no provision for appeal from a decree of the Superior Court, such as was here entered. Dempsey’s Case, 230 Mass. 583.

On October 1, 1917, the insurance company filed petitions and amended petitions in each case to vacate the decrees; it,also filed motions in each case to vacate the decrees. These petitions and motions after hearing were severally denied on March 16 and April 18, 1918, and the insurance company in each case severally appealed. It is plain that the petitions and motions to vacate the decrees were denied rightly. The procedure under the compensation act is governed by the practice in equity. Gould’s Case, 215 Mass. 480. The right first created by St. 1875, c. 33, now B. L. c. 193, §§ 15-19, to have final judgments in civil actions reviewed and vacated in practice is limited to proceedings in courts of law under the forms of the common law as distinguished from suits in equity and criminal prosecutions.

On May 2, 1918, the insurance company filed a petition in each case with the Industrial Accident Board, in which it prayed “that the agreement entered into by the insurer with the widow of the deceased employee be modified and annulled and that the insurer be forthwith released from the payment of any further' compensation by the said Industrial Accident Board; ” and it asked for this relief on the ground that "the agreement entered into by the insurer with the dependent was made by mistake of fact and through a misunderstanding as to the meaning of the law.” On May 14, 1918, the Industrial Accident Board, after hearing, entered the decision, “The above petition is denied.” On May 21, 1918, the insurance company presented to the Superior Court certified copies of the decisions and prayed "that review of said decision be made and a decree entered thereon in accordance with the law and the facts.” On September 13, 1918, the cases came on for hearing and it was decreed in each “that the order of the Industrial Accident Board denying the insurer’s petition be affirmed.” On September 13, 1918, the insurance company appealed from the decrees entered in the above cases.

“The Industrial Accident Board is not a court of general or limited common law jurisdiction; ... it is purely and solely an administrative tribunal, specifically created to administer the workmen’s compensation act in aid and with the assistance of the Superior Court. . . . [It] possesses only such authority and powers as have been conferred upon it by express grant or arise therefrom by implication as necessary and incidental to the full exercise of the granted powers.” Levangie’s Case, 228 Mass. 213, 216. The agreement between the insurance company and the widows was an undertaking to pay compensation under the act. It was not an admission of any common law or statutory liability under a claim for damages resulting to the claimants because of the conscious pain, suffering and death of their husbands, the employees, and the amount agreed to be paid was not an adjustment settlement or compromise of an admitted or disputed claim for damages grounded on causes of action outside the scope of the compensation act. The jurisdiction of the Industrial Accident Board under Part III, § 4, to approve agreements regarding compensation, and the jurisdiction of the Superior Court under Part III, § 11, to “render a decree in accordance” with the agreement “approved by the Industrial Accident Board,” necessarily rest upon an assumption and the fact that the agreement concerns a compensation for injuries sustained by an employee protected by the act, and then only when the terms of the agreement "conform to the provisions of this act.” It is fundamental that the Superior Court could not by its decree give validity to an agreement of compensation in its inception void, because not approved by the Industrial Accident Board acting within and under the authority conferred upon it by Part III, § 4 of the act. And of course the agreement is not approved unless the formal approval be also a legal approval and within the jurisdiction conferred on the Industrial Accident Board by the act.- It is to be said of the decree of the Superior Court as was said in Levangie’s Case, supra, of the action of the Industrial Accident Board, “It follows that full performance of the conditions of the act are essential prerequisites to the jurisdiction of the board [court], and that its authority and the statutory limitation upon the exercise of it cannot be enlarged, diminished or destroyed by express consent or waived by acts of estoppel.” “ Consent cannot give jurisdiction where the law has not given it.” Jordan v. Dennis, 7 Met. 590. Gilman v. Thompson, 11 Vt. 643, 647. The action of the Industrial Accident Board and of the Superior Court was without jurisdiction, was a nullity and void, but the validity of the order and decree cannot be questioned on appeal for the reasons stated in Dempsey’s Case, supra.

On September 6, 1918, the insurance company filed petitions for leave to file a bill of review in each case. These petitions were allowed and.bills of review were filed on September -13, 1918. On October 16, 1918, decrees were entered dismissing the bills of review, and the petitioner appealed.

The fact that the injuries to which the agreements of compensation relate were maritime in their nature and hence not within the scope of the workmen’s compensation act under the Jensen decision, supra, was apparent on the record when presented to the Superior Court, and also when “in accordance to said agreement” on September 5, 1917, the Superior Court “decreed that the said . . . insurer . . . pay . . . ten dollars weekly for a period of four hundred weeks from November 2nd, 1916.” In the opinion of a majority of the court it follows that the decree of September 5, 1917, was void for want of jurisdiction and must be vacated for error on the face of the decree. Clapp v. Thaxter, 7 Gray, 384, 386. Sawyer v. Davis, 136 Mass. 239, 247.

On September 6, 1918, the insurance company brought bills in equity to enjoin the two widows' from enforcing the decrees of September 5, 1917,. Answers were filed and the cases were set down for hearing on bill and answer. After hearing and argument of counsel, each bill was dismissed, and the petitioner appealed. As the decree of September 5, 1917, must be vacated for error on the face of the decree, it is unnecessary to decide whether the petitioner is entitled to injunctive relief. See Boston Diatite Co. v. Florence Manuf. Co. 114 Mass. 69; Palmer v. Lavers, 218 Mass. 286; Currier v. Esty, 110 Mass. 536; Amherst College v. Allen, 165 Mass. 178. These bills in equity must be dismissed without prejudice and without costs.

Decrees accordingly.