284 Mass. 263 | Mass. | 1933
This is an action of tort to recover compensation for personal injuries alleged to have been caused by negligent operation of a motor vehicle in which the plaintiff was riding. There was a verdict for the defendant. The case comes before us on the plaintiff’s exception to the denial of his motion, hereinafter referred to, to strike out the defendant’s amended answer.
There was no statement in the writ that the action was brought for the benefit of any person other than the plaintiff. Neither the declaration nor the original answer alleged any facts which would bring the case within the provisions of the workmen’s compensation law. G. L. (Ter. Ed.) c. 152. The original answer contained a general denial and allegations that "the injuries alleged were caused in whole or in part by plaintiff’s own negligence,” and that the motor vehicle was not "being operated by and under the control of a person for whose conduct the defendant was legally responsible.” Before the trial the defendant, with the consent of the plaintiff’s attorney, amended this answer by adding allegations to the effect that the plaintiff as an employee of the city of Springfield was within the provisions of the workmen’s compensation law and had received compensation thereunder for the injuries alleged in the declaration. The case was referred to an auditor who made a report.
At the trial, after the jury were impaneled, the attorney for the plaintiff, in the absence of the jury, stated that the action was "brought for the benefit of the insurer under the workmen’s compensation act,” that "The plaintiff was an employee of the city of Springfield, which was insured under that act,” and that "the action is brought for the benefit of the insurer, which is the city;” and presented an affidavit of the plaintiff that "at the time of the accident . . . [he] was in the employ of the City of Springfield, a
Subsequent proceedings were as follows: The jury were recalled and the pleadings including the amended answer were read to them. The plaintiff introduced in evidence the report of the auditor, which was read to the jury, and rested. This report contained a finding that the plaintiff at the time of the accident was a laborer employed by the city of Springfield and after the accident “signed an agreement to take compensation from' the city, the claim was approved by the Industrial Accident Board and since then he has been receiving $17.90 weekly as compensation,” and a general finding for the plaintiff. The plaintiff, called as a witness by the defendant,, testified without objection that he signed an agreement to take compensation which was approved by the Industrial Accident Board, and that he was still receiving $17.90 a week as compensation from the city.
The judge in his charge stated to the jury that they had no concern with the distribution of the proceeds of any judgment, read to them provisions of G. L. (Ter. Ed.) c. 152, § 15, hereinafter quoted, and said: “Applying the law to this case, you have before you the fact that this plaintiff has accepted and received compensation under the workmen’s compensation act. Therefore he is barred from proceeding to collect against the defendant in this case; save only for the provision that in case compensation is paid, as it has been in this case, then the insurer, which in
The pleadings, but by direction of the judge neither the affidavit nor the auditor’s report, were sent out with the jury when they retired and no objection was made to this procedure.
G. L. (Ter. Ed.) c. 152, § 15, provides 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, four fifths of the excess shall be paid to the employee; but the insurer shall not make any settlement by agreement with such other person without the approval of the industrial accident board,”
In this case, however, by the plaintiff’s consent, the immaterial allegations in the amendment became a part of the answer and it was not thereafter open to him, as matter of right, to contend that they were not properly a part thereof and, as such, should not be read to the jury, though doubtless it was within the discretion of the trial judge, in spite of the plaintiff’s consent to the amendment, to order these allegations struck out of the answer. For this reason the denial of the motion was not reversible error.
We need not consider whether, if the plaintiff had not consented to the amendment of the defendant’s answer, the plaintiff, on a motion, as here, to strike out the entire answer, was entitled as matter of law to have the immaterial allegations therein struck out, or whether, as the defendant contends, if there had been error in the denial of the motion, the plaintiff’s objection and exception thereto
No question of the correctness of subsequent proceedings at the trial is brought before us by the bill of exceptions.
Exceptions overruled.