Weathers Ex Rel. Ocean Accident & Guarantee Corp. v. CauthenWeathers Ex Rel. Ocean Accident & Guarantee Corp. v. Cauthen
In January, 1936, N. W. Carter was employed by J. F. Weathers and while driving a Ford V-8 coupe in Brevard County, he collided with a Chevrolet truck and trailer owned by Irwin Cauthеn but was being driven at the time by T. B. Ingram an employee of Irwin Cauthen. N. W. Carter suffered serious and permanent injury from the collision.
Carter filed his claim for compensation under the Workmen’s Compensation Law which was allowed by the Florida Industrial Commission and benefits were paid by the emplоyer’s compensation insurance carrier. In January, 1940, the employer (Weathers) for the use and benefit of the employer’s insurancе carrier instituted suit against Irwin Cauthen, a third party tort feasor. A demurrer to thе declaration as amended was sustained and final judgment of dismissal was entered. This appeal was prosecuted.
There is apparently no dispute as to the salient facts. The relation of the pаrties, the collision, the awarding of benefits by the Florida Industrial Commission and the acceptance of such benefits by Carter in the way of doctors bills, hospital bills and compensation benefits through the employеr’s insurance compensation carrier are admitted. The alleged negligence which cause'd the injury is not admitted.
The first question raised turns on the interpretation of Section 39(a) and (b) of the Workmen’s Compensation Law as follows:
“(a) If on account of a disability or death, for which compensation is payable under this act, the person entitled to such compensation determines that some person оther than the employer is liable in damages, he may elect by giving notice to the employer and the Commission in such manner as the Commission .may provide, to receive such compensation or to reсover damages against such third person. This notice must be given within thirty days from the date of the accident.
“(b) The giving of notice to acceрt such compensation shall operate as an assignment to thе employer of all right *422 of the person entitled to compensаtion to recover damages against such third person.”
It is contendеd that since another than the employer is liable for the injury .to Cartеr and that Carter failed to give the notice as required by paragrаph (a) as above quoted but accepted compensation from his compensation insurance carrier, the employеr cannot now recover damages for the use and benéfit of the employer’s insurance carrier.
The purpose of the Workmen’s Compensation Law was to make available promptly medical attention, hospitalization, and compensation commensurate with the injury if done in the course of the employment whether the emрloyer or a third person was at fault. From a reading of the Act, it is perfectly evident that the legislature contemplated that third partiеs might be responsible for commensurable injuries.
Paragraph (b) of the quoted act amounts to an assignment of a right of action to the emрloyer by his employee and by its terms the assignment is completed on giving оf the notice to accept the compensation. Such a provision is a derogation of the common law and should be cоnstrued strictly when as here it amounts to assigning a right of action to the employer against the third party. The requirement of notice is for the benеfit of the employee and in Hartquist v. Tamiami Trail Tours Inc.,
Affirmed.