Miller v. RichardsMiller v. Richards
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- Before:
- Lummus
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*425tian act, G. L. (Ter. Ed.) c. 152. The defendant, on October 27, 1937, bought meat from the company through its manager, who directed the plaintiff to cut it. While the plaintiff was lifting a heavy rump and loin of beef for the purpose of cutting it, the defendant from behind clutched the plaintiff’s scrotum, causing the plaintiff to drop the beef. The plaintiff testified that when he dropped the beef the shin bone struck him in the scrotum. But there was evidence of statements by him that his only injury occurred when the defendant clutched him; and that the judge found to be the fact.
The defence is that the plaintiff and the insurer had entered into a written agreement under
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
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*427stitution of such proceedings, though they be subsequently abandoned or prove unsuccessful, constitutes an election that precludes resort to an action of tort against the third person. Tocci’s Case, 269 Mass. 221, 224. McDonald v. Employers’ Liability Assurance Corp. Ltd. 288 Mass. 170, 173. It is therefore immaterial that on the facts found by the judge the injury appears not to have been compensable under the workmen’s compensation act. Gavros’s Case, 240 Mass. 399. Lee’s Case, 240 Mass. 473.
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
Order dismissing report reversed.
Judgment for the defendant.