227 N.W. 47 | Minn. | 1929
In February, 1925, while plaintiff was an employe of the Standard Cattle Company, a "market agency" operating on the premises of defendant at South St. Paul, he was injured by a large icicle falling *314
from a water tank owned by defendant. Plaintiff first sought to recover from his employer under the workmen's compensation act. He was denied such recovery by the decision of the industrial commission, affirmed here (Ott v. Standard Cattle Co.
1. The provision of the compensation act [G. S. 1923 (1 Mason, 1927) § 4291] so invoked reads thus:
"Where an injury or death for which compensation is payable under part 2 of this act is caused under circumstances also creating a legal liability for damages on the part of any party other than the employer, such party also being subject to the provisions of part 2 of this act, the employe, in case of injury, or his dependents in case of death may, at his or their option, proceed either at law against such party to recover damages, or against the employer for compensation under part 2 of this act, but not against both. * * * The provisions of Subdivision 1 of this section shall apply only where the employer liable for compensation under part 2 of this act, and the other party or parties legally liable for damages were engaged in the due course of business, (a) in furtherance of a common enterprise, or (b) the accomplishment of the same or related purposes in operation on the premises where the injury was received at the time thereof, and not otherwise."
The statute is explicit in its declaration that in such a case as this the employe may at his option proceed either at law against the party responsible for the injury because of his negligence or against the employer for compensation "but not against both." It is therefore not quite a case of an ordinary election of remedies but *315
one where the election was made under the mandate of a statute to the effect that, having proceeded against one of the parties, the employe may not proceed against the other. Uotila v. Oliver I. Min. Co.
2. By reply plaintiff alleges that at all times during the pendency of the proceeding for compensation "he was of the opinion and belief that he had two remedies and that he could pursue either or both of them, that is, that he had a right to claim compensation from his employer, * * * and to institute and to pursue legal proceedings" for damages from defendant; that it was not until much later that he "learned for the first time that under the law he was required to make an election between the two remedies;" and that "no one has been injured or prejudiced by reason of the fact that he did so proceed against the Standard Cattle Company."
Without now considering the merit otherwise of the equities so alleged by plaintiff, we are required to hold, in order to give the statute its intended effect, that they do not help him here. The statute is explicit and without exception. The proceeding for compensation having gone to decision on the merits, we are not at liberty to relieve plaintiff from the result because alone of his ignorance of the law which imposed upon him the necessity for an election. *316
Attentive examination of the cases relied upon by appellant discloses nothing much in favor of the opposite result. The point was not involved in Behr v. Soth,
Judgment affirmed. *317