242 Mass. 156 | Mass. | 1922
The plaintiff’s intestate, Antone E. Chaves, was employed by the Union Street Railway Company. He was insured under the workmen’s compensation act by the Liberty Mutual Insurance Company. The action is brought by the Liberty Mutual Insurance Company under St. 1911, c. 751, as amended by St. 1913, c. 448 (see now G. L. c. 152, § 15), in the name of the administratrix of the estate of the employee, who has entered into an agreement with the insurance company for the payment of compensation in accordance with the workmen’s compensation act.
The first count in the declaration is to recover for the death of the employee; the second count is to recover for his conscious suffering caused by the defendant’s negligence. The defendant’s answer was a general denial and an allegation of contributory negligence. In the third paragraph it was averred that the plaintiff, having received compensation under the workmen’s compensation act from the intestate’s employer, was barred from recovering in this action. After the jury was impanelled the plaintiff made a motion in writing stating that she had entered into an agreement with the Liberty Mutual Insurance Company for the payment of compensation in accordance with the terms of the workmen’s compensation act; that she is bound to account for any damages recovered under count one of the declara
When an employee receives an injury for which compensation is payable under the workmen’s compensation act, in such circumstances that a person other than his employer may be liable for damages, the employee may proceed at law against that person to recover damages or against the insurer to recover compensation under the act, but he cannot proceed against both; and if compensation is paid under the workmen’s compensation act the insurer may enforce in the name of the employee or its own name the liability against such person, and in case the insurer receives a sum greater than the amount paid by it, four fifths of the excess shall be paid to the employee. St. 1913, c. 448. In Hall v. Henry Thayer & Co. 225 Mass. 151 and Turnquist v. Hannon, 219 Mass. 560, it was decided that the insurer, having paid compensation to the administratrix, for the employee’s death in accordance with the statute, became entitled to enforce in her name the liability of the defendant and for its own benefit to enforce against third persons causing the employee’s injury rights which otherwise would have been available to the employee or his representatives. The amount of the compensation paid by the insurer was not important; as was said in Turnquist v. Hannon, supra, at page 565, "It is an immaterial circumstance how much it may have paid or be liable to pay under the act.” It was also immaterial that the administratrix was merely a nominal plaintiff/ Under the first count the averments in the third paragraph of the defendant’s answer had no bearing on any issue in the case and the plaintiff had the right to have the case tried without reference to any matters which might be prejudicial or irrelevant; the judge properly ordered the immaterial and irrelevant matter in the answer to be stricken out. Marsch v. Southern New England Railroad, 230 Mass. 483, 491, 492; S. C. 235 Mass. 304.
The motion of the plaintiff having been allowed, the record discloses that the plaintiff had made an agreement for the pay
In the second count the plaintiff sought to recover for the conscious suffering of her intestate. She had the right to have her cause of action considered by the jury, uninfluenced by any irrelevant references to the insurance of her intestate by his employer, the defendant cannot complain of the ruling made. Hall v. Thayer, supra. Turnquist v. Hannon, supra. Cripp’s Case, 216 Mass. 586.
Exceptions overruled.
