32 Del. 295 | Del. | 1923
Lead Opinion
delivering the opinion of the court:
The question before us involves the construction of that portion of the Workmen’s Compensation Act of 1917 (Chap. 233, Vol. 29, Laws of Del.), which deals with the liability of an alleged tort-feasor to answer in damages for the death of an employee whose widow and dependents have accepted compensation from the deceased’s employer, the alleged tort-feasor being a person other than the employer. The portion of the act with which we are concerned is, as follows:
“319311. Section 131. Whenever an injury for which compensation is payable under this Article shall have been sustained under circumstances creating in some other person than the employer, a legal liability to pay damages in respect thereto, the injured employee may, at his option, either claim compensation under this Article, or obtain damages from, or proceed at law against such other person to recover damages, but he shall not proceed against both; and if compensation is awarded under this Article, the employer having paid the compensation or having become liable therefor, shall be subrogated to the rights of the injured employee, or of his dependents to recover damages against such third person, and may recover in his own name or that of the injured employee from the other person in whom legal liability for damages exists, the indemnity paid or payable to the injured employee. Any recovery against such third person in excess of the compensation theretofore paid and thereafter payable by the employer (less the cost of securing and collecting same) shall be paid forthwith, when collected, to the employee or the dependents."
The precise question presented by the record is: may a suit for damages for the death of an employee whose widow and de
In answering this question, we conceive that two inquires are involved, viz.: (1) may the third person tort-feasor be sued after compensation has been accepted under the Workmen’s Compensation Act? (2) if so, in whose name must the suit be instituted?
First. May the third person be sued? It is well settled that under the common law no action for damages could be maintained against a person who by his wrongful act, neglect or default may have caused the death of another person. Such was the rule in England until the passage of Lord Campbell’s Act, 1846. Such also was the rule in this state until the enactment in 1866 of the Delaware Death Act (now printed as Section 4155, Rev. Code of Del. 1915). This act is as follows:
"4155. Sec. 3. Personal Injury Actions; Who May Prosecute; Death by Unlawful Violence or Negligence; Who may Sue. — No action brought to recover damages for injuries to the person by negligence or default shall abate the reason of the death of the plaintiff; but the personal representatives of the deceased may be substituted as plaintiff and prosecute the suit to final judgment and satisfaction.
“Whenever death shall be occasioned by unlawful violence or negligence, and no suit be brought by the party injured to recover damages during his or her life, the widow or widower, * * * the personal representatives, may maintain an action for and recover damages for the death and loss thus occasioned.”
By this act a person whose negligence or unlawful violence is responsible for the death of another is liable in damages to the parties named in the act as entitled to sue. The Workmen’s Compensation act does not repeal this act either expressly or by implication so far as the liability of the non-employing tort-feasor is concerned. Certainly if no compensation has been accepted under the Compensation Act, the employee if living and the widow or widower or personal representative, as the case may be if the employee has died without bringing suit, are left in possession of all the rights accorded to them by the law against third persons tort-feasors as fully as though the Compensation Act had never
In its first clause Section 131 speaks of an injury done by some person other than the employer for which a legal liability to pay damages exists and provides that the injured “employee” may elect to accept compensation or proceed at law against the wrongdoer for damages, but “he (the employee) shall not proceed against both.”
It is apparent that liability under the death statute is not within the literal scope of this language, because under said statute there is no right of action in the “employee.” The action under that statute is in favor of the widow or widower, or if there be no widow or widower in the personal representatives. Thus far, therefore, the section would appear not to contemplate in any manner the liability created by the death statute. But later in the section it is provided that in case the employer pays compensation he shall be “subrogated to the rights of the injured employee, or of his dependents,” and further, that in case the employer re
Our conclusion, therefore, with respect to the first question is, that liability under the Death Act of a person other than the employer to respond in damages for the death of an employee still continues notwithstanding his dependents have accepted compensation under the Workmen’s Compensation Act.
2. The next inquiry is, who may assert this liability? The court below held that the widow, the plaintiff in this case, having accepted compensation under the Workmen’s Compensation Act could not maintain an action under the death statute because under the provisions of Section 131 of the Compensation Act she was put to her election as to which remedy she would pursue, and having elected to take compensation she thereby precluded herself from proceeding under the Death Act. We see no error in this ruling.
The death Act does two things. It creates a liability where none had theretofore existed, and it provides who may assert a
In order to escape the conclusion that the statute means to subrogate the employer to the rights of “dependents” (which term includes the widow) and thus to avoid the logical consequences flowing therefrom, the plaintiff in error argues that the word “dependents” whenever it appears in the section must be rejected as surplusage. We do not feel warranted, however, in dealing so freely with the language of the Legislature. It must be assumed that the word was employed to express a purpose, and being able as we are to discover a rational purpose in its use, we are not at liberty to strike the word from its context.
It thus appearing that the employer is in exclusive possession of the claim for damages against the third person tortfeasor, the next question is, how must he assert the claim? The statute in Section 131 answers this question. It provides that he "may recover in his own name, or that of the injured employee.” In the instant suit recovery is sought, not in the name of the employer, nor in that of the employee. It is sought in the name of the widow, and the widow is neither the employer nor employee. In this particular the case is distinguishable from Hall, Adm’x, v.
Thus the suit is not in a name authorized by the Compensation Act. It is apparent that the widow’s name is used as party plaintiff under the impression that the designation of parties found in the death statute may be properly followed. But this we think is an erroneous impression. While, as we have indicated, the liability created by the death statute is preserved by the Compensation Act, the provision as to parties found in the former is amended by the latter when compensation is agreed upon. The cause of action after compensation is payable belongs to the employer. It is a legal right which the employer never before enjoyed, a new right, and the Compensation Act provides how he may enforce it. The fact that the language is permissive (such being the nature of “may”) in no wise detracts from the imperative necessity that the employer shall proceed according to one or the other of the permitted ways. “Where a right is given and a remedy provided by statute, the remedy so provided must be pursued.” That is the language of the court in People v. Craycroft, 2 Cal. 243, 56 Am. Dec. 331. In 2 Sutherland on Statutory Construction (2d Ed.), § 632, in the chapter wherein the author discusses mandatory and directory statutes, the following is found:
“Where a statute confers a new right, privilege or immunity the grant is strictly construed, and the mode for its acquisition, preservation, enforcement and enjoyment is mandatory.”
To the same effect is 25 R. C. L., § 283, “Statutes,” p. 1058, where it is said:
“Where a statute creates a new right, and prescribes a remedy for its violation, the remedy thus prescribed is exclusive."
Our conclusion with respect to the second question, therefore, is that while the liability under the Death Act is unimpaired by Section 131 of the Compensation Act, yet its assertion is controlled exclusively by the employer and he must, when he asserts it, do so either in his own name or that of his employee. Of course, if the employee be dead, then the employer’s own name is the only one left to him in which to sue. He cannot sue in the name of the widow.
In disposing of this case we have not paused to consider whether the replication does not show that the suit is not only in the name of the widow, but as well in fact for her own benefit, and not for the benefit of the employer. In order that there may be an express ruling of this cotut upon the important question of parties in cases such as this, we have assumed that the replication does show the suit to be in the widow’s name but for the employer’s benefit. We rest our conclusion squarely upon the point that the employer cannot use the widow’s name as party plaintiff. He must pursue strictly the permission granted him by the statute, viz., sue either in his own name, or in that of the employer.
The judgment below is affirmed.
Dissenting Opinion
(dissenting): I concur in that part of the opinion of the majority of the court which holds that the Death Act is not affected by the Compensation Act, where dependents of a deceased employee do not accept compensation from the employer.
I regret, however, that I am unable to concur in that part of it which holds that an employer, who has paid compensation to dependents for the death of an employee, cannot recover in the name of the widow of such employee against a third person whose negligence caused the employee’s death.
Section 131 is quoted in its entirety in the majority opinion, and I will, therefore, quote merely what I deem to be the material parts of it.
The language of this section is somewhat ambiguous. It provides that:
“Whenever an injury for which compensation is payable, * * * shall ' have been sustained under circumstances creating in some other person than the employer, a legal liability to pay damages in respect thereto, the injured employee may, at his option,either claim compensation * * * or obtain damages from, or proceed at law against such other person to recover damages, but he shall not proceed against both.”
The subrogation clause then follows. It provides, in substance, that if compensation is awarded, the employer shall be subrogated to the—
"rights of the injured employee, or of his dependents, to recover damages against such third person, and may recover in his own name or that of the injured employee from the other person in whom legal liability for damages exists, the indemnity paid or payable to the injured employee.”
It further provides that any amount recovered by the employer from such third person, in excess of the compensation paid or payable by the employer, shall, when collected, be paid to the “employee or the dependents.”
The majority opinion says, with respect to these provisions of Section 131:
“Taking Section 131 in its entirety, it would, therefore, appear that, notwithstanding its first clause seems to refer to rights of action which have no connection with the death statute, the later provisions, which deal with the subrogation right of the employer and with the payment to dependents of the excess above compensation recovered by the employer, must contemplate the right or rights of action created by the Death Act. Unless the Death Act’s liability is recognized and contemplated by Section 131, we are at a loss to discover any cause of action to which the word ‘dependents,’ found in this section, can be made to relate.”
The majority of the court, therefore, in effect hold:
(2) That, considering the context of the whole section, the term “employee,” as used in the first part of Section 131, with respect to the right to recover damages against a negligent third person causing the death of an employee, is, also used in the sense of dependents and that the dependents of such a deceased employee have a right of action under the Death Act, which, for that purpose, must be read in connection with the Compensation Act.
I am in accord with both of these conclusions.
The result of the majority opinion is that it construes the first part of Section 131, as though it read:
“The employee (or his dependents) may, at his (or their) option, either claim compensation, * * * or obtain damages from or proceed at law against such other person to recover damages, etc.; * * * and if compensation is awarded * * *the employer * * * shall be subrogated to the rights of the injured employee, or of his dependents, to recover damages against such third person.”
When, however, the majority of the court construe the latter part of precisely the same sentence — providing that the employer who has paid or become liable for compensation “may recover in his own name or that of the injured employee” — they construe the language used literally and disregard the meaning they had already given the term “employee” in the preceding part of the "sentence.
After the above quotation, the statute proceeds to provide what the employer may recover, viz., “the idemnity paid or payable to the injured employee.”
' It, also, necessarily follows from the conclusions reachedin the majority opinion that, when the employee is killed by the negligent third person, the term “employee,” as used in this clause, means “dependents. ”"
If the term “employee” be so construed in both a prior and subsequent part of the same sentence and section, why the same construction does not apply in that part of the sentence, which provides that the employer who has paid compensation may recover in his own name, or that of the “injured employee,” is not pointed out.
Lewis in his edition of Sutherland on Statutory Construction (vol. 1), § 399, thus states the principle involved:
"A word, or phrase, repeated in a statute will bear the same meaning throughout the statute unless a different intention appears.” See, also, N. Y. Central R. Co. v. Lazarus, 298 Fed. Rep. 900 (902).
I am unable to find anything in Section 131 indicating that the word “employee” was not used in the same sense throughout the section, and the rule above quoted certainly would lose none of its force when applied to the same word in the same sentence.
If the term “employe” be construed in the same manner throughout the sentence, the clause with respect to bringing suit would, in effect, read: the employer who has paid or become liable for compensation “may recover in his own name or that of the injured employee (or his dependents).”
When so construed, the solution of the question involved here is clear.
Section 139 defines “dependents” and provides that wherever the context requires it the term shall be held to include, among n other persons, the personal representative and the widow of the deceased employee.
The Death Act (Chap. 210, ml. 22, Laws of Del.), in substance, provides that whenever death shall be occasioned by unlawful violence, or negligence, damages may be recovered in an action by the widow or widower of the deceased person, or, if there be none, by his personal representative.
Both Hall v. Thayer & Co., 225 Mass. 151, 113 N. E. 644 and Turnquist v. Hannon, 219 Mass. 560, 107 N. E. 443, support this conclusion. While the suits in those cases were by the personal representatives, the same principles were involved.
The Massachusetts statute is very similar to our statute. It provides that, if compensation be paid by the employer, suit “may” be brought against the negligent third person, in the name of the State Insurance Association, or in the name of the employee.
It is true that the Massachusetts statute defines “employee” but the majority of the court have construed “employee,” as used in our statute, to mean “dependents,” and that word has been expressly defined by Section 139 of the Delaware statute.
If the conclusion reached by the majority of the court be correct, an employer, who has paid compensation to an employee for injuries not resulting in his death, “may” recover either in his own name or in the name of the “injured employee”; yet, where compensation is paid the dependents of a deceased employee, based on precisely the same clause of the statute, suit against the negligent third person can only be brought in the name of the employer. Considering the alternative language used, as well as the optional word “may,” I find nothing in Section 131 read as a whole that justifies the conclusion that such a result was intended.
It is true, as stated by the court below, and also, by the majority of this court, that the Compensation Act contemplates that the dependents of an employee, killed by the negligent act of a third person, as well as the merely injured employee, must elect whether to accept compensation, or to sue the tort-feasor. Turnquist v. Hannon, 219 Mass. 560, 107 N. E. 443; Hall v. Thayer, 225 Mass. 151, 113 N. E. 644; Barry v. Bay State Street Ry. Co., 222 Mass. 366, 110 N. E. 1031; Miller v. N. Y. Ry. Co., 171 App.
The real question here, however, is a broader one than that; it is whether the employer who has paid compensation to the widow and children of a deceased employee, may proceed in the name of the widow of such deceased person against the negligent third person who caused his death.
My conclusion is that while the employer might have prosecuted the suit in this case in his own name, a suit by him in the name of the widow of the deceased employee is, also, authorized by the statute.
Additional reasons might be given, in support of this conclusion, but it seems unnecessary to state them at the expense of prolonging this opinion.