222 Mass. 366 | Mass. | 1916
The St. of 1911, c. 751, had been in force for nearly sixty days before the accident, and although the plaintiff testified that he never had heard of the enactment, he cannot successfully set up his ignorance in bar of the enforcement of its provisions. Mulvey v. Boston, 197 Mass. 178, 182, 184. See Story Eq. Jur. (13th ed.) § 111. It was undisputed that his employer was a subscriber and that no notice under Part I, § 5, of the employee’s intention to rely on his rights at common law had been given. The plaintiff’s personal injuries having arisen out of and been received in the course of his employment he had accordingly a claim for compensation to be determined by the Industrial Accident Board. But as the exceptions recite that sufficient evidence was introduced to warrant the jury in finding his due care and negligence of the defendant, the plaintiff under Part III, § 15, either could sue the defendant for damages or ask for compensation, but could not recover both. If compensation is accepted the association or insurer is subrogated to the rights of the injured employee. Turnquist v. Hannon, 219 Mass. 560. It is at this point that the controversy begins.
The statute recognizes and provides for agreements in settlement of injuries between the association and the employee if entered into in accordance with the terms of the act. St. 1911, c. 751, Part III, § 15; Part III, § 4, as amended by St. 1912, c. 571, § 9; Part V, §§ 2, 3. Pigeon’s Case, 216 Mass. 51, 56. Cripps’s Case, 216 Mass. 586, 588.
The plaintiff and the insurer signed and filed with the board fourteen days before the date of the writ a memorandum of the agreement in question, which on its face became enforceable under the provisions of Part III, § 11, providing for an appeal and report to this court on questions of law. St. 1912, c. 571, § 9. While the purpose of the statute undoubtedly is to give to the memorandum the same force and effect as a decision of the board, which is reversible only on appeal and is not open to collateral attack, yet the question before us being whether the plaintiff, upon whom alone the right is conferred, elected to accept compensation instead of
The defendant having pleaded the settlement, the plaintiff seeks to avoid it on the ground that his signature was procured through the false representations of one Watt, the paymaster of the subscriber, who assured him in substance, that his right óf action against the defendant would not be affected by the agreement. It is unnecessary to decide whether the statements of Watt as testified to by the plaintiff could be found by the jury to have been fraudulent. The agreement was subsequently executed by the insurer acting by its president, and there is no evidence that Watt was authorized to act in its behalf in procuring the plaintiff’s signature or that its officers had been informed of what took place when the signature was affixed. It is conceded that the plaintiff is not illiterate, and the printed agreement as well as the five receipts for weekly payments contained the statement that it was made under the “workmen’s compensation act” with full reference to the statute. Nor does he contend that his signature to the receipts, or to the final payment in “settlement of compensation,” were obtained by misrepresentation, or that he had no opportunity to read them before signing, or was under such physical disability that he did not comprehend the transactions. If he had expressly stated or made known to the insurer that the agreement and receipts were given “without prejudice,” as was found to be the fact in Oliver v. Nautilus Steam Shipping Co. [1903] 2 K. B. 639, upon which he places much reliance, the insurer would have paid with notice that the employee claimed and understood the right of election had been reserved. The right, however, under our statute is exercised when with the approval of the board a settlement is made and compensation thereunder is received during disability. The remedies cannot be pursued concurrently and the choice postponed until judgment has been recovered and then upon tender to the insurer of [the amount received the employee collects the judgment. St. 1911, c. 751, Part III, § 15. The plaintiff, ■ who upon his own evidence was bound to know the contents of all 'the papers after the first, signed without protest, remained silent, and did not expressly
Exceptions sustained.