305 Mass. 464 | Mass. | 1940
The declaration alleges that the death of the plaintiff’s intestate on February 28, 1934, resulted from the negligent operation by the defendant of an automobile at Middleton on December 22, 1933. This action was brought on February 27, 1935, which date was barely within the year after the death allowed for bringing such actions by G. L. (Ter. Ed.) c. 229, § 5, taken in connection with G. L. (Ter. Ed.) c. 260, § 4, as amended.
At the pre-trial hearing, on December 6, 1938, the defendant filed a paper, called in its title “Motion to Dismiss,”
The “plea” was miscalled a “Plea to the Jurisdiction.” There was no doubt of the plenary jurisdiction of the court to deal with the parties and the subject matter, and no question of jurisdiction was raised. Nor was this paper a motion to dismiss in the ordinary technical sense, as it introduced matter not apparent on the face of the record. Graustein v. Boston & Maine Railroad, 304 Mass. 23, 25. It is unnecessary to discuss the question whether the matter set up was technically pleaded as matter in abatement or as matter in bar. White v. E. T. Slattery Co. 236 Mass. 28. It would seem that a complete and final defence to the cause of action was intended. As to so called pleas in bar in civil actions at law under our present practice see Gallo v. Foley, 299 Mass. 1, 4. At all events, it appears that the parties have, by their own choice, had a trial before the judge in a manner selected by themselves on the basis of the so called “plea,” and that the judge has found the facts which both
The material facts upon which the judge made his ruling are these: The plaintiff is the widow and sole heir of the deceased. The deceased was employed by the Metropolitan Life Insurance Company, which carried workmen’s compensation insurance in the Travelers Insurance Company. On September 21, 1934, nearly seven months after the death of her husband, the plaintiff filed a claim for compensation under the act, alleging that his death arose out of and in the course of his employment by the Metropolitan. The Travelers as insurer of the Metropolitan contested the claim. After a hearing, the Industrial Accident Board, on April 2, 1935, decided in favor of the claimant, now the nominal plaintiff. The Travelers made its first payment to the plaintiff on May 14, 1935. This was seventy-six days after this action was begun and seventy-five days after the cause of action would have been lost by limitation, if steps had not been taken to enforce it. But the claim for compensation had been filed before this action was brought, and the action was brought by the attorneys for the Travelers with the consent of the plaintiff.
Section 15 of the workmen’s compensation law, G. L. (Ter. Ed.) c. 152, before amendment by St. 1939, c. 401, read in part as follows: “Where the injury for which compensation is payable was caused under circumstances creating a legal liability in some person other than the insured to pay damages in respect thereof, the employee may at his option proceed either at law against that person to recover damages or against the insurer for compensation under this chapter, but not against both. If compensation be paid under this chapter, the insurer may enforce, in the name of the employee or in its own name and for its own benefit, the liability of such other person; and in case the insurer recovers a sum greater than that paid by it to the employee,
By enacting § 15 the Legislature intended to accomplish two objects. It intended (1) to compel the employee, or his administrator (Turnquist v. Hannon, 219 Mass. 560, 563, 564; G. L. [Ter. Ed.] c. 152, § 1 [4]), to make a final and binding election either to proceed at law against the person legally liable or to seek compensation under the act, and it intended (2) to preserve the cause of action at law for the benefit of the insurer, if the employee chose compensation, in order that the person legally at fault might not escape. In this case the administratrix made a binding and final election to abandon her rights at law and to rely upon compensation. She made this election the moment she filed her claim for compensation. From that moment she permanently lost all interest in the cause of action against the defendant, except the possibility of sharing in any amount recovered in excess of the sum required to reimburse the insurer for compensation paid. Tocci’s Case, 269 Mass. 221. Jordan v. Orcutt, 279 Mass. 413, 415. Miller v. Richards, ante, 424. G. L. (Ter. Ed.) c. 152, § 15. (We need not consider in this case any possible effect of the amendment of § 15 by St. 1939, c. 401.) See also G. L. (Ter. Ed.) c. 152, § 23. From the moment of election the occasion arose for preserving the right of action for the benefit of the insurer. In most cases there would be no occasion for controversy about this, as the insurer would have begun paying compensation before it became necessary to bring an action at law. But in this case the period within which the action must be brought was so short and the administratrix' claim for compensation was filed so late that the insurer would have had to begin payments before securing a determination of its liability to make them, if it had begun payments before the cause of action at law would have expired.
The important words of § 15 are: “If compensation be paid under this chapter, the insurer may enforce . . . the
No difficulty need be apprehended in permitting the insurer to bring suit in season to avoid the loss of the cause of action and at the same time in observing the condition of § 15 that the insurer may enforce the third party’s liability only "If compensation be paid.” After the action has been commenced the court may exercise control over it by postponing the trial, continuing the case for judgment after trial, or in any other appropriate manner so as to insure that there shall be no recovery until compensation has actually been paid. The right of the insurer to prosecute the action in the name of the employee or his administrator is treated as a matter to be determined by the judge and as distinct from the issues to be decided by the jury at the trial of the action itself. Becker v. Eastern Massachusetts Street Railway, 279 Mass. 435, 443, 444, and cases cited. Murray v. Rossmeisl, 284 Mass. 263, 267. McDonald v. Employers’ Liability Assurance Corp. Ltd. 288 Mass. 170, 176. Cozzo v. Atlantic Refining Co. 299 Mass. 260, 264.
There are statements in some of the decisions like that in Becker v. Eastern Massachusetts Street Railway, 279 Mass. 435, 443, that "Payment of compensation by the insurer ... is a condition precedent to the right of such insurer to prosecute the action.” Murray v. Rossmeisl, 284 Mass. 263, 267. Turnquist v. Hannon, 219 Mass. 560, 565. Chaves v. Weeks, 242 Mass. 156, 158. Fidelity & Casualty Co. v. Huse & Carleton, Inc. 272 Mass. 448, 452, 453. Pimental v. John E. Cox Co. Inc. 299 Mass. 579, 581-582. These
The order sustaining the defendant’s “plea” is reversed, and the case is to stand for trial.
So ordered.