Fidelity & Casualty Co. of New York v. Huse & Carleton, Inc.

B-r.at.ey, J. This action was begun July 5, 1916, under St. 1911, c. 751, Part III, § 15, as amended by St. 1913, [361] c. 448, § 1, by the plaintiff in the name of Christina J. Anderson, as administratrix of the estate of Carl Anderson. The declaration is in two counts respectively alleging the conscious suffering and death of the intestate, and the answer, among other defences, denies that the administratrix was ever married to the intestate and alleges that her appointment was invalid. R. L. c. 137, § 1. The plaintiff had issued a policy of insurance to Edward A. Laveau, the employer of the intestate. He died September 27, 1915, within a few hours after the accident, from injuries alleged to have been caused by the defendant's negligence while he was lawfully upon its premises in the course of his employment. A committee of arbitration appointed- under St. 1911, c. 751, Part III, § 5, filed on January 4, 1916, with the Industrial Accident Board as provided in § 7, a report in which, after a hearing of all parties entitléd to notice, they found that the employee met with injuries arising out of and in the course of his employment while working'for Edmund A. Laveau which resulted in his death, and awarded compensation to his widow of $10 a week .for a period “which will bring the total amount recovered up to $4,000, namely, 400 weeks. We further find that Mrs. Anderson was the wife of Carl Anderson, and was living with him at the time of his death; and under the law is conclusively presumed to be wholly dependent upon the deceased for her support.” The defendant not being a necessary party to the proceedings, notice to it was not required. St. 1911, c. 751, Part III, §§ 4, 5, 6. But, even if under St. 1912, e. 571, § 14, which struck out § 11, Part III, St. 1911, c. 751, and provided that any party in interest may present certified copies of an order or decision of an arbitration committee to the Superior Court whereupon the court shall render a decree and notify the parties interested, the jurisdiction of the committee was not abrogated. The finding of marriage and dependency-as well as the award of compensation were within their province as defined in the statute, and the result, no review having been claimed, could be enforced, if necessary, by decree of the court. St. 1911, c. 751, Part III, § 7. St. 1912, c. 571, § 14. Pigeon’s Case, 216 Mass. 51, 56. The payments by [362] the insurer from September 27, 1915, until her appointment June 8, 1916, as administratrix were made to the widow. But after appointment they were made to her under St. 1911, c. 751, Part II, § 13, as his legal representative. These payments in no sense were voluntary, but were in compliance with the determination of the committee which on the present record was final. Opinion of the Justices, 209 Mass. 607. See Diaz's Case, 217 Mass. 36. The last payment on June 6, 1923, with the preceding payments fully satisfied the award. The court of probate, however, on the defendant’s petition had by decree entered October 31, 1924, revoked the decree appointing the administratrix because she was not the widow of the employee, and the action therefore could not be maintained in her name as such. Adams v. Leland, 7 Pick. 62, 63. But the original decree was not open to collateral attack, and until revoked it was valid. McCooey v. New York, New Haven & Hartford Railroad, 182 Mass. 205. Connors v. Cunard Steamship Co. Ltd. 204 Mass. 310. St. 1911, c. 751, Part III, § 15, now G. L. c. 152, § 15, provides that where the injury for which compensation is payable was caused under circumstances creating a legal liability in some party other than the subscriber and employer, the insurer may enforce such liability in the name of the employee or in its own name and for its own benefit; and under Part II, § 13, now G. L. c. 152, § 39, the insurer may also recover for the death of the employee if full compensation has been paid therefor. Turnquist v. Hannon, 219 Mass. 560. Hall v. Henry Thayer & Co. 225 Mass. 151. R. L. c. 171, § 2, as amended by St. 1907, c. 375, now G. L. c. 229, § 5. The right is conferred by statute. It does not depend on subrogation. There is no fiduciary relation between the plaintiff and the defendant, and the alleged failure of the plaintiff to accept the investigations of the defendant and act thereon — that Christina J. Anderson was not the widow of Carl Anderson — or make an independent investigation of itself, is not proof of bad faith. Accordingly the motion of the insurer to amend the writ and declaration by substituting its own name as plaintiff [363] was allowed rightly, and the motion of the defendant to dismiss the action was properly denied. By the terms of the report the orders are Affirmed.