305 Mass. 424 | Mass. | 1940
In this action of tort begun on May 25, 1938, the trial judge in a District Court found for the plaintiff. The Appellate Division dismissed a report, and the defendant appealed to this court.
There was evidence of the following facts. The plaintiff was employed as a meat cutter by the United Beef Company, which was.insured under the workmen's compensa
The defence is that the plaintiff and the insurer had entered into a written agreement under G. L. (Ter. Ed.) c. 152, §§ 6, 7, 11, for the payment to the plaintiff of $18 a week, beginning October 29, 1937, under the provisions of the workmen’s compensation act. Compensation was paid for three weeks, and then the plaintiff went back to his job and on November 27, 1937, filed an agreement for discontinuance of compensation.
For the purpose of further proceedings under the workmen’s compensation act the facts admitted by the written agreement were conclusively determined; the insurer "ought not now to be able to raise any question it then forbore to litigate,” including "the question, whether the injury arose out of and in the course of . . . [the] employment.” Kareske’s Case, 250 Mass. 220, 227. McCracken’s Case, 251 Mass. 347, 350, 351. Perkins’s Case, 278 Mass. 294, 299. MacKinnon’s Case, 286 Mass. 37. Virta’s Case, 287 Mass. 602, 607. DiLeo’s Case, 295 Mass. 568, 571. Employers’ Liability Assurance Corp. Ltd. v. DiLeo, 298 Mass. 401. That principle, though argued, has no application, for this is an action of tort; moreover, one against a person other than the employer or the insurer.
By G. L. (Ter. Ed.) c. 152, § 15 (see now St. 1939, c. 401), "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
This election, as was pointed out in Tocci’s Case, 269 Mass. 221, 224, is a peculiar statutory one, and not the ordinary common law election between inconsistent remedies. If it were the latter, an employee who prosecuted one remedy to the end only to find that it did not exist, might then resort to the other. Snow v. Alley, 156 Mass. 193. Burke v. Willard, 249 Mass. 313. Ferris v. Boston & Maine Railroad, 291 Mass. 529, 533. Lilly v. New York, New Haven & Hartford Railroad, 295 Mass. 384. Western Massachusetts Finance Co. v. Carrier, 295 Mass. 441, 445.
The law is settled otherwise as to the statutory election. The statutory election to “proceed” against the third person in tort, which takes place when the action is brought, is effective to bar a proceeding to obtain workmen’s compensation, except as otherwise provided in § 15 (see St. 1939, c. 401), even though the result of the action establishes that there was no “legal liability” on the part of the third person. Coughlin v. Royal Indemnity Co. 244 Mass. 317. Sciacia’s Case, 262 Mass. 531. Tocci’s Case, 269 Mass. 221. The same words of § 15 govern the result of an election the other way, namely, to institute proceedings under the workmen’s compensation act. The mere in
The case of Clark v. M. W. Leahy Co. Inc. 300 Mass. 565, 569-570, to the effect that the waiver of an action at law against an employer under G. L. (Ter. Ed.) c. 152, § 24, applies only to a compensable injury, is not in point. Neither is Donovan v. Johnson, 301 Mass. 12, holding that the doctrine most recently stated in Carlson v. Dowgielewicz, 304 Mass. 560, applies only to a compensable injury. In Wahlberg v. Bowen, 229 Mass. 335, it was held that the receipt of certain benefits did not amount to proceeding under the workmen’s compensation act. Compare Bruso’s Case, 295 Mass. 531. Whatever may be said of Hunt v. Zako, 243 Mass. 565, it contains nothing contrary to what is here decided. Compare Labuff v. Worcester Consolidated Street Railway, 231 Mass. 170; Sciacia’s Case, 262 Mass. 531, 533. The requested ruling that the evidence did not warrant a finding for the plaintiff should have been given.
Order dismissing report reversed.
Judgment for the defendant.