This is а petition to establish exceptions alleged to have been taken by the plaintiff in a trial of the action of Thomas Nealon vs. James J. Sullivan in the Superior Court sitting in the county of Middlesex. G. L. (Ter. Ed.) c. 231, § 117. The aсtion was commenced July 9, 1942. According to the bill of exceptions the action was to recover damages for personal injury received as a result of falling from a truck operated by the defеndant in Malden on March 1, 1942. In addition to a general denial and allegations of contributory negligence and assumption of risk the defendant averred in his answer that the plaintiff and he were fellow servants or coworkers engaged in the work of their common employer, the city of Malden, that the city was insured under the workmen’s compensation act, and that the plaintiff elected to and did receive compensation for his injury under the provisions of the act. It was stated in the bill that “The accident occurred on a Sunday. The regular work week was five days, from Monday through Friday inclusive, when the plaintiff worked for the сity. That at the time that the plaintiff’s injury occurred the plaintiff was not working.in the status of an employee of the city of Malden. That the plaintiff volunteered to dis *215 tribute sand on that day. That the plaintiff was not to get paid for the said services, and, in fact, did not get paid for said services performed at the time that the injury occurred. That the plaintiff met the defendant at the city yards on March 1, 1942. The plaintiff was designated to go on the defendant’s truck. The defendant told the plaintiff to be the top man on the truck. . . . The defendant operator made a sudden sharp turn to the left going down hill, with about one and one half tons of sand in the truck at the time. That the plaintiff fell off the truck to the ground and the left rear wheels of the defendant’s truck backed up over the plaintiff. . . . Upon cross-examination by counsel for the defendant the plаintiff said that he did not accept and receive compensation from the city of Malden. ”
The plaintiff excepted to the admission of a certified copy of the record of the Industrial Accident Board which was marked exhibit 1. A part of that exhibit which admittedly had been signed by him was entitled “Employee’s Agreement to Discontinuance of Compensation” and read as follows:
“May 30 1942
I hereby agree that the insurаnce company may stop my compensation on this date.
I do this with the understanding between us that this is not a settlement of my case and shall not prevent me from claiming further compensation if I hereafter believe I am entitled to it.
(Signed) Thomas B. Nealon
I, Francis T. Walsh, of No. 51 Cross Street, Malden Mass., have read over and explained the above agreement to the said Thomas B. Nealon and subscribe my name as witness to his signature.
(Signed) Francis T. Walsh
Thе following information must be furnished by the insurer in every case:
Date of Injury March 1, 1942 Average Weekly Wages $28.66 at date of accident $31.46 —10% inc. in pay 4/9 *216 retroactive to Jan. 1, 1942 Compensation began March 1, 1942 Rate of Compensation $20 Paid to date May 3, 1942 Compensation Paid $260 Hospital and medical services paid Hospital 372.18 Medical 35. $407.18.”
It was further stated in the bill that the plaintiff had not rested his case; and that “The court rеfused to permit . . . [him] to introduce further testimony and instructed the jury ... to return a verdict for the defendant, ” the ground for the directed verdict as stated to the jury by the judge being in substance that the plaintiff had exercised his option of taking workmen’s compensation and was barred from prosecuting his present action. To the direction of the verdict the plaintiff excepted.
On December 30, 1954, the judge directed the following entry to be made: “The plaintiff’s bill of exceptions is hereby disallowed as not conformable to the truth in at least two respects: First, because it contains the sentence, ‘That at the time that the plaintiff’s injury оccurred the plaintiff was not working in the status of an employee of the city of Malden.’ Second, because it contains the sentence, ‘The plaintiff had not rested his case. The court refused to рermit the plaintiff to introduce further testimony ....’”
The plaintiff’s petition was referred to a commissioner who reports substantially as follows as to the first matter specified in the disallowance of the bill. The plaintiff was asked by his attorney, “And on that day [^Sunday, March 1], were you working in the status of an employee of the city of Malden?” The attorney for the defendant objected and the witness then answered, “No.” The judge said, “All right, we will decide that — the jury, rather.”
As to the second matter the commissioner reports that “The plaintiff had not rested when the trial judge ordered a verdict for the defendant. After the verdict for the defendant was ordered at the conclusion of the charge, the plaintiff duly excepted thereto. There was no order or ruling in so many words refusing to permit the plaintiff to introduce further testimony. The plaintiff had in court under *217 summоns further witnesses to testify in his behalf. The plaintiff was the first witness. Following the introduction of the workmen’s compensation papers during the cross-examination of the plaintiff, there was a conference, first at the bench and then in the lobby. In the course of the conference at the bench or in the lobby, the attorney for the plaintiff requested an opportunity to complete the testimony. Upon resumption of the hearing in court the next morning the trial judge proceeded to charge the jury and direct a verdict for the defendant. The attorney for the plaintiff attempted to interrupt the charge at an early point, but the trial judge would not permit it. Plaintiff’s attorney did not except at this point in the charge.” The commissioner reported the following cross-examination in reference to exhibit 1 which was not set forth in thе bill: “Q. And who is Francis Walsh? A. He is the timekeeper. Q. Timekeeper for the city of Malden? A. Yes. Q. And at the time that you signed this statement on this paper on May 30, 1942, the paper which I have here said, ‘I agree that the insurance company may stop my compensation on this date.’ Right? May 30th, correct? A. That is the date there. Q. And you signed this paper stating that your compensation — you agreed your compensation is stоpped on that day. Mr. Walsh, this timekeeper also signed it in your presence, did he? A. Yes, sir, that is it, sir.”
The plaintiff was not entitled to the assertion as a fact “That at the time that the plaintiff’s injury occurred the plaintiff wаs not working in the status of an employee of the city of Malden.” See
Ray, petitioner,
The judge properly could have allowed the bill with the objectionable statements which he specified omitted. They were distinct and readily separable from the pоrtions of the bill relating to the exceptions. See
C. F. Hovey Co. petitioner,
There is no merit in the exceptions. They relate to the admission of the record of the Industrial Accident Board and to the direction of the verdict for the defendant. An employee of a person insured under the workmen’s compensation act cannot accept compensation for an injury received in the course of his emplоyment and also bring an action for his own benefit to collect damages for the same injury from a person other than his employer who may be responsible for his injury, except as provided by G. L. (Ter. Ed.) c. 152, § 15, as amended. If having accepted compensation he prosecutes an action at law against such other person, a preliminary question is presented to the court whether such action was authorized. This question is to be decided by the judge.
Cozzo
v.
Atlantic Refining Co.
The judge had not only the testimony of the plaintiff in reference to exhibit 1 which was stated in the bill but also that which was reported from the record by the commissioner. On this evidence he was warranted in finding that the plaintiff had elected to accept compensation. According to his statement to the jury he found such to be the fact and in directing the verdict ruled that the present action was barred. As the plaintiff had made a binding and final election he was not entitled to show that he was not legally entitled to the compensation received.
Tocci’s Case,
The bill of exceptions is established with the above quoted statements omitted and the exceptions are overruled.
So ordered.