288 Mass. 170 | Mass. | 1934
This is an action of tort to recover damages for the loss by the plaintiff of the sight of his right eye, alleged to have been caused by the negligence of the defendant’s agent in treating the eye. The defendant, at the close of the plaintiff’s case, moved for a directed verdict and a verdict was directed. The case is here on the plaintiff’s exceptions to the direction of a verdict for the defendant and to the admission and exclusion of evidence.
The plaintiff testified that on December 24, 1927, while working for his employer, he “received a foreign body in his right eye,” that the eye became inflamed, and that he reported the injury to his employer, who sent him to the defendant’s clinic, or hospital, where his eye was treated. There was testimony as to the nature of the treatment, in-
The plaintiff testified further that' he continued to work until January 28,1928, when he stopped work because of the condition of his eye, applied for workmen’s compensation and signed an “Agreement in Regard to Compensation,” and that he stayed out of work until some time in May when he returned to work and, at that time, signed a “Settlement Receipt.” The agreement in regard to compensation, which was in evidence, provided for the payment of weekly compensation by the defendant on the basis of total disability beginning January 30, 1928. It described the nature of the injury as “eye injury,” and the cause thereof, “Foreign body in eye,” and contained the statement that it “is hereby agreed that I have suffered no permanent loss of use of any member of my body as a-result of the above accident, except as above stated.” The “Settlement Receipt,” which also was in evidence, acknowledged the receipt by the plaintiff from the defendant of a sum of money in settlement of compensation under the workmen’s compensation law for all injuries received by the plaintiff on or about December 24, 1927, while in the employ of the Otis Elevator Company, subject to approval and review by the Industrial Accident Board, and stated that the plaintiff agreed that he had “suffered no permanent loss of use of any member of my body as a result of the above accident,” and that his disability ended May 7, 1928. There was also introduced in evidence an “Employee’s Agreement to Discontinuance of Compensation,” signed by the plaintiff, in which he agreed that the insurance company might stop his compensation as of May 7,1928, and in which it was stated that he did this “with the understanding between us that this is not a settlement of my case and shall not prevent me from claiming
1. It was not reversible error to direct a verdict for the defendant.
It is apparent that this action was brought by the employee, as plaintiff, for his own benefit. He cannot maintain it since, according to his testimony by which he is bound, he has elected to proceed against the defendant, as insurer, for compensation under the workmen’s compensation law. G. L. (Ter. Ed.) c. 152, § 15, provides in part that where “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.” Though, so far as appears, the agreements were not approved by the department of industrial accidents (see G. L. [Ter. Ed.] c. 152, § 6), the plaintiff’s .conduct, as shown by his testimony, amounted to an exercise of his option in favor of proceeding against the insurer for compensation rather than proceeding at law against “some person other than the insured” to recover damages in respect of a legal liability not created under the workmen’s compensation law.- Compare Cripps’s Case, 216 Mass. 586; Barry v. Bay State Street Railway, 222 Mass. 366, 371; Wahlberg v. Bowen, 229 Mass. 335, 338; Tocci’s Case, 269 Mass. 221, 223-224. It is not material, as bearing upon the exercise of this option, that the plaintiff’s claim under that law has not been finally settled, or that he has not claimed or received specific compensation for the loss of sight. An employee cannot by claiming only a part of the compensation to which he .is
The plaintiff, however, contends that the provision of G. L. (Ter. Ed.) c. 152, § 15, above quoted, and the principles above stated, do not apply to the present case where the employee is proceeding at law against the insurer for negligence. But there is no sound ground for such an exception to the general rule. It is a principle underlying the workmen’s compensation law that there shall not be double recovery for injury— once by way of compensation and once by way of damages. See Tocci’s Case, 269 Mass. 221, 223-224; Ahmed’s Case, 278 Mass. 180, 183-184. This is true whether injury results from the fault of the employer, the “insured person” (G. L. [Ter. Ed.] c. 152, §§ 23, 24; see, however, § 28), or from the fault of “some person other than the insured” (§ 15). On a natural interpretation of the words, the insurer is “some person other than the insured” within the meaning of the statutory provision in § 15 requiring an employee to elect between proceeding “at law against that person to recover damages” and proceeding under the workmen’s compensation law “against the insurer for compensation.” And no reason appears why, contrary to the general principle, double recovery by an employee should be permitted in a case where his injury results from the fault of the insurer. No inference that double recovery is permitted in such a case can be drawn from the inapplicability thereto — because of the identity of the insurer and the person in whom the legal liability is created — of the
No contention is made by either party that, if, as we decide, the employee cannot maintain the action for his own benefit, the proper disposition of the case would have been to dismiss the action because prosecuted without authority rather than to direct a verdict for the defendant. See Murray v. Rossmeisl, 284 Mass. 263, 265-267. Com
2. There was no reversible error in the admission or exclusion of evidence.
The plaintiff excepted to the admission of the “Agreement in Regard to Compensation” and the “Settlement Receipt.” Though the documents were not relevant to any issue triable by the jury (Hall v. Henry Thayer & Co. 225 Mass. 161, 154, Becker v. Eastern Massachusetts Street Railway, 279 Mass. 435, 444), they were relevant to the matter to be determined by the judge — whether the plaintiff had exercised his option in favor of proceeding for compensation under the workmen’s compensation law. Since the case rightly was not submitted to the jury the plaintiff was not harmed by the admission of the documents. Nor was the plaintiff harmed by the exclusion, subject to his exception, of questions asked a physician called by him as a witness. These questions had no bearing upon the matter to be determined by the judge.
Exceptions overruled.