son as he would be awarded by way of compensation under the act, that is not such an election as discharges his employer and insurer.97

Where an injured employee was taken to the hospital, used by the employer for that purpose, it was held that that did not constitute an election to take compensation under the act and thereby release the negligent third party, unless it could be clearly shown that the injured employee so intended.98

§ 45. Subrogation and Third Persons as Affected by the Acts. -It has been held, and is frequently so provided in the acts, that where the employer or his insurer is liable and pays compensation to an injured employee the legislature may require the negligent third party, who caused the injury, to reimburse them for the amounts so expended.99

A negligent third party, whose conduct has resulted in the accidental injury of the employee of another, profits materially by virtue of such provision, in that when the employee elects to claim compensation from his employer the third party is liable only for the amount of compensation paid by the employer, together with the expense of suit and attorney's fees, should suit be necessary to establish the third party's negligence.

It has been held under the Massachusetts Act that a dependent can proceed either against the employer or the third person whose negligence caused the death of the employee, but not

97. Matter of Woodward v. E. W. Conklin & Son, Inc., 171 App. Div. 736, 157 Supp. 984.

98. Wahlberg v. Bowen et al., 229 Mass. 335, 118 N. E. 645, 1 W. C. L. J. 790; Horloff v. Merwin, (1920), 177 N. W. 913, 6 W. C. L. J. 416.

Wis.

99. Grand Rapids Lumber Co. v. Blair, 190 Mich. 518, 157 N. W. 29, 16 N. C. C. A. 409; Vereeke v. Grand Rapids, 203 Mich. 85, 168 N. W. 1019, 2 W. C. L. J. 917; Labuff v. Worcester Consol. St. Ry. Co., 231 Mass. 170, 120 N. E. 381, 2 W. C. L. J. 903; Davis v. Cent. Vermont Ry. Co., (1921), 113 Atl. 539; But see Keerans v. Peoria etc. Traction Co., 277 Ill. 413, 113 N. E. 636, where it was held that the Act does not affect third persons in this respect, where they are not under it.

Vt.

against both; that where an employee accepts compensation he is precluded from bringing an action against a third person, whose negligence caused the injury, because the right to proceed against such third person is subrogated to the employer or his insurer; that an insurer may prosecute an action in the name of the widow and administrator of a deceased employee for its own benefit; that an option to accept compensation under the Act instead of damages, exercised on behalf of an infant will be set aside, if it be not for the infant's benefit. But it has been held in New York that the widow may elect for a minor child, the election being binding."

3

It has been held, under the Nebraska Act, that the fact that an employer was insured against loss occasioned by compensation to an injured workman, does not bar the employer's right to subrogation against a third person; that an employer might assign his right to the employee and enable the employee to sue the third party; that where a city paid compensation to its servant's widow for his wrongful death, as provided in the Wisconsin Act, her cause of action against the tortfeasor, who caused

1. Barry v. Bay State St. Ry. Co., 220 Mass. 366, 110 N. E. 1031; Woodcock v. London & Northwestern Ry., 6 B. W. C. C. 471; Mahomed v. Mounsell 1 B. W. C. C. 269; Labuff v. Worcester Consol. Ry. Ca., 231 Mass. 170, 120 N. E. 381, 2 W. C. L. J. 903; Anderson v. Miller Scrap Iron Co., Wis., 182 N. W. 852.

2. Hall v. Henry Thayer & Co., 225 Mass. 151, 113 N. E. 644; Royal Indemnity Co., v. Platt etc. Refin. Co., 98 Misc. Rep. 631, 163 N. Y. Supp. 197; Turnquist v. Hannon, 219 Mass. 560, 107 N. E. 443 14 N. C. C. A. 1015; Muncaster v. Graham Ice Cream Co., Neb. - 172 N. W. 52; Dallas Hotel Co. v. Fox, Tex. Civ. App. -, 196 S. W. 647; Contra, Houlihan v. Sulzberger & Sons Co., 282 III. 76, 118 N. E. 429, 1 W. C. L. J. 536; City of Austin v. Johnston, Tex. 204 S. W. 1181.

2 W. C. L. J. 845; Merrill v. Marietta Torpedo Co., 79 W. Va. 669, 92

S. E. 112.

3. Hall v. Thayer & Co., 225 Mass. 151, 113 N. E. 644.

4. Ford v. Wren & Dunham, 5 W. C. C. 48; Stephens v. Dudbridge Iron Works Co., 6 W. C. C. 48.

5. Hanke v. New York Consol. Ry. Co., 168 N. Y. S. 234, 16 N. C. C. A. 399.

6. Otis Elevator Co. v. Miller, 153 C. C. A. 302, 240 Fed. 376.

7. Thomas v. Otis Elevator Co., 103 Nebr. 401, 172 N. W. 53, 4 W. C. L. J. 114.

1

his death, became the property of the city with which it might deal as it chose; that under the Texas Act, prior to 1917, the insurance carrier that had paid compensation, was not subrogated to the rights of employees against a third person, whose negligence alone caused the injury."

But now the insurer's right to subrogation is established more in accord with the law in many other states, the insurance carrier or employer has the right of subrogation limited to the amount paid, and where the employee proceeds against the third party, the employer or insurance carrier should be made a party to the suit. The fact that the employee has received compensation does not bar the action against the third party.10 But in Iowa where the employee has first recovered from the third party and afterwards receives compensation from the employer, the employer has no right of action or subrogation against the third party." Contra to the Iowa holding on the above point is the holding in Connecticut, New York, and California. In a Connecticut case an employee accepted a sum in excess of the amount allowed by compensation and released the third party before adjusting his compensation claim. It was held that the

8. Saudek v. Milwaukee Elect R. etc. Co., 163 Wis. 109, 157 N. W. 579; Marshall Jackson Co. v. Jeffery, 167 Wis. 63, 166 N. W. 647, 1 W. C. L. J. 892.

9. Austin v. Johnson,

Civ. App. -, 204 S. W. 1181, 2 W. C. L. J. 845; Aetna Life Ins. Co. v. Otis Elevator Co.. Tex. Civ. App. S. W. 376, 2 W. C. L. J. 592; Texas etc. R. Co. v. Archer App.) 203 S. W. 796, 2 W. C. L. J. 391.

204

(Civ.

Lan

10. The Emilia De Perez, 248 Fed. 480, 2 W. C. L. J. 11; caster v. Hunter, Tex. Civ. App. 217 S. W. 765, 5 W. C. L. J. 612; Black v. Chicago Great Western R. Co., Iowa-, 174 N. W. 774, 5 W. C. L. J. 218; Wm. Cameron & Co. v. Gamble, Tex. Civ. App. 216 S. W. 459, 5 W. C. L. J. 312; Fidelity & Casualty Co. v. Cedar Valley Electric Co., 174 N. W. 709, 5 W. C. L. J. 228: City of Shreveport v. Southwestern Gas & Electric Co., 145 La. 680. 82 So. 785, 4 W. C. L. J. 605; Moreno v. Los Angeles Transfer Co., 186 Pac. 800, 5 W. C. L. J. 489; Stackpole v. Pacific Gas &

-

Cal.

Elect. Co.,

Iowa

Cal. 186 Pac. 354, 5 W. C. L. J. 461; Western States Gas & Electric Co. v. Bayside Lumber Co., 187 Pac. 735, 5 W. C. L. J. 649. 11. Southern Surety Co. v. Chicago, St. P. M. & O. Ry. Co., 174 N. W, 329, 4 W C. L. J. 710.

Iowa

W. C-13

money so paid should be applied to the obligation of the employer to pay compensation.12 And in New York, the law being that the claimant for compensation must assign his right against third parties, for the benefit of the state insurance fund, or the person or corporation liable for compensation, where a claimant was assaulted and the wrong doers were required under court decree to pay the claimant some money in order to suspend their sentence for assault, it was held that the employer was entitled to credit for the amounts so paid.13

Where the dependent mother elected to receive compensation and the employer never prosecuted its right to subrogation against the third party, the employer cannot have the compensation claim reduced by the amount received by the mother from the administrator of the deceased's estate, the administrator having recovered from the third party under the Survival Act for negligent killing. Had the employer prosecuted his claim against the third party and recovered, the amount so recovered would then have been considered in the administrator's action against the third party.14

It has been held in Michigan that the personal representative of a deceased employee, by making settlement with the negligent third party, does not thereby release the deceased's employer from liability to pay compensation, nor affect the right of the employer to proceed against such third party which he may do as if no settlement had been made.15

The wording of the California Act vests the right of subrogation in the employer and consequently the holding in California is contrary to the Iowa case last above mentioned. The court said in a recent case: "The interest of the employer in the cause of ac⚫tion which the injured employer has against the third party. whose negligent act caused the injury, is in the nature of a lien

12. Rosenbaum v. Hartford News Co., 92 Conn. 398, 103 Atl. 120, 1 W. C. L. J. 930.

13. Dietz v. Solomonwitz, 179 App. Div. 560, 166 N. Y. S. 849, 16 N. C. C. A. 414.

14. Vereeke v. City of Grand Rapids, 203 Mich. 85, 168 N. W. 1019, 2 W. C. L. J. 917.

15. Naert v. Western Union Tel. Co., Mich., 172 N. W. 606.

thereon which he can enforce by action in his own name and which right cannot be impaired or destroyed by any act of the injured employee not concurred in by the employer."

In California an insurance carrier and the injured employee may join in an action against the negligent third party, with out an award of compensation having been made, because liability to pay compensation is created by the act, and not by the award.17

Under the Kentucky Act an employee injured by the negligence of a third party may, after receiving compensation from the employer, join his employer in a suit to recover against the negligent third party, his employer being entitled to receive the amount of compensation paid to the employee from the amount recovered from the third party."

Under the Michigan Act, providing for recovery by the em ployer or insurer from a third party tort-feasor, payment of compensation either by agreement or by order of the Industrial Accident Board, is prima facie evidence of the tort-feasor's liability.10 It has been held that where a city paid a foreman full wages while disabled through the negligence of a third person, this did not operate as an assignment of his right of action to the city under the Wisconsion Act, because a foreman is not covered by it;20 that the negligent third party cannot be sued by the employer's insurance company when he has already been sued by the employee's widow for the same act;21 that an employee's assignment of his cause of action, against a third party vested title thereto in the employer who could not be divested thereof, against his consent, by either the employee or

187 Pac. 108, 5 W. C. L. J.

16. Papineau v. Ind. Acc. Comm., Cal. 492; Mass. Bonding & Ins. Co. v. San Francisco-Oakland Terminal Ry.,

39 Cal. App. 388, 178 Pac. 974, 3 W. C L. J. 574.

19. Grand Rapids Lumber Co. v. Blair, 190 Mich. 518, 157 N. W. 29; But see Brabon v. Gladwin Light etc. Co., 201 Mich. 697, 167 N. W. 1024, 2 W. C. L. J. 302.

20.

Hornburg v. Morris, 163 Wis. 31, 157 N. W. 556.

21. Dettliff v. Hammond, etc. Co., 195 Mich. 117, 161 N. W. 949.