
    Gilbane Building Company et al. vs. Antonio DeRuosi.
    JUNE 18, 1948.
    Present: Flynn, C. J., Capotosto, Baker, Condon and O’Connell, JJ.
   O’Connell, J.

This case is before us on two appeals taken under the workmen’s compensation act, general laws 1938, chapter 300, which were argued together by agreement of counsel. The first appeal is by the respondent employee from a decree of the superior court entered after a hearing de novo on the petition of the employer and its insurance carrier to review the terms of a preliminary agreement of the parties which had been approved by the director of labor. The superior court granted such petition and entered a decree authorizing termination of payments. Notwithstanding respondent’s appeal therefrom, petitioners terminated compensation payments in reliance on the above decree.

Thereupon the respondent filed a petition in the superior court seeking to have the petitioners adjudged in contempt for failing to continue payments under the terms of the preliminary agreement, pending the hearing and disposition of the original appeal before this court. The trial justice who heard this petition entered a decree holding the petitioners in contempt and permitting them to purge themselves by resuming payments from the date of their discontinuance. From this decree the petitioners have duly appealed, and this second appeal will now be considered.

We are of the opinion that this case is governed by the law as stated in Dunn v. Broomfield, 74 R. I. 27. It is different from that case only in the fact that in the Dunn case the employee’s appeal from the decree authorizing discontinuance of payments, though pending before this court, was not heard together with the appeal of the employers and their insurance carrier from the decree adjudging them to be in contempt. But we think that the law therein stated is equally applicable to the instant case, where both appeals were argued at the same time.

The Dunn case was an appeal from a similar decree of the superior court adjudging the employers in contempt for failure to continue payments after the filing of an employee’s appeal from a decree authorizing discontinuance of such payments. This court held that the provision in the compensation act that a claim of appeal shall suspend the operation of the decree appealed from refers to a petition for review, as in the instant case, as well as to one based on an original petition, and affirmed the decree adjudging the employers in contempt.

We have considered the petitioners’ argument that the Dunn case should be reconsidered and overruled because of the possible hardship to them if they are compelled to continue payments until the appeal from the order of discontinuance is decided by this court and in the event that such appeal should be decided in their favor. But we are also cognizant of the fact that if the petitioners were permitted to discontinue payments upon entry of the decree in the superior court before the appeal was finally determined, then in the event this court should not sustain the ruling of the trial justice the hardship upon the employee might be much greater than any which might be suffered by the petitioners. This court does not make the law but merely construes it, and such an argument would be more properly addressed to the legislative branch of the government than to this court.

Hinckley, Allen, Tillinghast & Wheeler, 8. Everett Wilkins, Jr., Thomas J. Hogan, for petitioner.

William H. McSoley, Jr., for respondent.

We are of the opinion that in the instant case the decision of the trial justice holding petitioners in contempt for failing to continue payments in accordance with the terms of the preliminary agreement pending respondent’s appeal was correct; and, since petitioners in their petition for review are seeking affirmative relief, we do not think we should pass upon the issue raised by them until it appears, by the entry of a proper order in the superior court, that they have purged themselves of such contempt in accordance with the terms of the decree appealed from.

The petitioners’ appeal from the decree adjudging them in contempt is denied and dismissed, the decree appealed from is affirmed, and the cause is remanded to the superior court for further proceedings under that decree. Thereafter, if the petitioners purge themselves of contempt in accordance with such decree, the cause shall be returned to this court for disposition of the other appeal.

Harry Feigelman, Alexander G. Teitz, for petitioner.

Goldberg & Goldberg, Philip B. Goldberg, Leo M. Goldberg, George Ajootian, for respondent.  