XXXI. Exclusiveness of remedy furnished by statute.

As to alternative remedies furnished workman or dependents under the English act, see ante, 72.

As to recovery of compensation under the English act where action for damages has failed, see ante, 81.

a. In general.

It has been stated that the compensation acts are exclusive in all cases in

which they are applicable,96 and all other remedies are taken away.97 But if the statutes do not apply, then the employee must resort to the existing common-law or statutory remedy. This is true in case the parties have not come in under the optional act,98 and also where the employee for some reason is not embraced within the terms of the statute.9

99

The Arizona act passed in accordance with the mandate of § 8, article 18, of the Constitution, differs from all other acts in that it is compulsory as to the employer, and optional as to the employee, and the latter's option may be exercised after the injury has been inflicted.1 But the option whereby the employee may settle for compensation or law liability for negligent injury, and the verdict was rendered awarding damages for pain, suffering, and disfigurement, the verdict cannot be treated as an award of compensation, nor can a judgment be entered by a supreme court for any sum as compensation, although there was some evidence tending to show partial disability, and some testimony as to the recent earnings of the plaintiff. McRoberts v. National Zinc Co. (1914) 93 Kan. 364, 144 Pac. 247.

96 Where the employer and employee have elected to come within the provisions of the compensation law, that law is exclusive. McRoberts v. National Zinc Co. (1914) 93 Kan. 364, 144 Pac. 247.

97 The legislature, by the compensation act, intended to take away from employees who should become subject to its provisions all other remedies that they had against their employers for injuries happening in the course of their employment and arising therefrom, and to substitute for such remedies the wider right of compensation given by the act. King v. Viscoloid Co. (1914) 219 Mass. 420, 106 N. E. 988, 7 N. C. C. A. 254.

98 The factory act (Gen. Stat. 1909, §§ 4676-4683) is not repealed. It remains in full force, but it cannot be invoked by an employee to whom the benefits of the workmen's compensation act (Laws 1911, chap. 218, amended by Laws 1913, chap. 216) are available, and who has elected to accept them. Where, however, the employer has elected not to accept the latter act, the

may retain the right to sue the employer, as otherwise provided for by the Constitution, is personal to the workman, and no such election is afforded to his personal representative.2 And in case of injuries resulting in the death of the workman, if, as a matter of fact, the deceased after the injury, and before his death, elected to accept compensation under the act, it is a matter of defense to be raised by plea or answer.3

Where a petition states the cause of action under the factory act, and charges negligence, but discloses a situation in which a recovery can be had only under the workmen's compensation act of 1911, as amended by the act of 1913, the district court, having the jurisdiction of the parties and subject-matter, should not dismiss the action, but should retain it for the remedy to which the plaintiff may prove his right. The Illinois compensation act is not the kind of a statute contemplated by the provision of the mining act that if the compensation act shall be enforced in the state, providing for compensation to workmen for all injuries received in the course of their employment, the provisions of such compensation act should apply instead of the proemployee is free, notwithstanding his own acceptance, to bring an action under the factory act. Smith v. Western States Portland Cement Co. (1915) 94 Kan. 501, 146 Pac. 1026 (headnote by the court).

99 As where the employee suffers disfigurement only, and the statute provides compensation only for loss of earning capacity. Shinnick v. Clover Farms Co. (1915) 169 App. Div. 236, 154 N. Y. Supp. 423.

A workman for a city contractor engaged in constructing a manhole from the surface of the street to the water pipes of the city water system is not engaged in extrahazardous employment within the Washington statute, so as to prevent his bringing an action for damages against the third person through whose negligence he was injured. Puget Sound Traction Light & P. Co. v. Schleif (1915) 135 C. C. A. 616, 22C Fed. 48.

1 Under § 8 of the Arizona Constitution, the legislature cannot require an employee to elect in advance of any injury or the accrual of any right of action whether he will proceed under the employers' liability act or under the compulsory compensation law; when, however, he adopts a remedy, that Consolidated remedy becomes exclusive. Arizona Smelting Co. v. Ujack, 15 Ariz. 382, 139 Pac. 465, 5 N. C. C. A. 742. 2 Behringer v. Inspiration Consol. Copper Ariz. Co. (1915) -, 149 Pac. 1065. 3 Ibid. (Ariz.)

4 Shade v. Ash Grove Lime & Portland Cement Co. (1914) 92 Kan. 146, 139 Pac. 1193, 5 N. C. C. A. 763.

further stated that the express provision in the act that the workman's right of action is waived or discharged by his failure to give notice that he claimed his common-law right is, by a recognized rule of statutory construction, an indication that it was not intended to take away the right of anyone but himself.10 It was also held in the same case that the provision that the insurer shall pay a part of the medical expenses made necessary by injury to an employee (pt. 2, §5) does not take away by implication the parent's remedy for his own loss in the shape of an injury to a minor child.11 d. Rights and remedies where negligence of third person causes the in

jury.

As to liability under English act of third person whose negligence caused the injury, see ante, 101.

In cases in which the injury to an employee was caused by the negligence of third persons, the employee may, under most of the acts, either bring an action against the negligent third person or take proceedings against the employer for compensation; and if the employer or his insurer is compelled to pay compensation, he may recover the amount he has been compelled to pay from the tort feasor. This, however, is not the universal rule, and the comparatively few cases passing upon this point present several different phases of the question and a number of conflicting views.

no

applicable, an injured employee had other remedy except where the injuries were caused by the employer's gross negligence or wilful misconduct of a certain specified character, and the workman cannot be held to be estopped from pursuing his remedy before the Commission, nor can the Commission be held to be without jurisdiction of the proceeding instituted by him, by the fact that, prior to instituting his proceeding before the Commission, he had instituted an action for damages in the superior court, on account of the same injuries, where the complaint in such action did not show that the injury was caused by the employer's gross negligence or wilful misconduct of the necessary character. San Francisco Stevedoring Co. v. Pillsbury (1915) Cal. 149 Pac. 586. 10 King v. Viscoloid Co. (1914) 219 Mass. 420, 106 N. E. 988, 7 N. C. C. A. 254. The court said: "The parent's right of action was not in any just sense consequential upon that of the son. It was independent of his right and was based upon her personal loss. His action was for the pain and suffering caused by the injury and for the loss of wages or diminution of earning capacity caused thereby, and coming after

Under the Wisconsin act, a workman injured by the negligence of a third person while on the latter's premises, where he was at work by the direction of his employer, has a right of action against such third person notwithstanding both the employer and such third person have come in under the provisions of the compensation act.12 The election of remedies afforded to an employee by part 3, § 15 of the act, where the injury was caused under circumstances creating a legal liability in some person other than the subscriber to pay damages in respect thereof, passes in case of the death of the bound to decide whether to pursue the employee to his administrator, who is remedy under the death statute or under the workman's compensation act.13

Under the Massachusetts act, a workman loses his right to compensation from his employer where he accepts a settlement from a third person whose negligence caused the injury.14 But where the workman subsequently dies of his injury, his acceptance of a settlement from such third party does not deprive the widow of her right to compensation.15

release

A release given to an employer by an tion does not, under the New Jersey act, employee upon the receipt of compensacaused the accident.16 a tort feasor whose negligence And if a workman is injured by the negligence of a third person, he is not barred from receiving compensation by the fact that he had made a settlement with such third person and released him.17 But the emhe should have attained full age. Her action was for the expense to which she had been put by reason of his injury and for the loss of his services or wages during his minority."

11 "Doubtless the parent could not recover for expenses which he had not been called on to incur, and in fact had not incurred, but it is not perceived how this could have any greater effect than to reduce somewhat the amount of damages that might be recoverable." (Mass.) Ibid.

12 Smale v. Wrought Washer Mfg. Co. (1915) 160 Wis. 331, 151 N. W. 803. 18 Turnquist v. Hannon (1914) 219 Mass. 560, 107 N. E. 443.

14 The driver of a truck, who was injured by the negligence of a street car company, loses his right of compensation under the act by accepting a settlement from the street car company, although he had not brought suit against the company. Cripps's Case (1914) 216 Mass. 586, 104 N. E. 565, Ann. Cas. 1915B, 828.

15 (Mass.) Ibid.

16 Jacowicz v. Delaware, L. & W. R. Co. (1915) — N. J. -, 92 Atl. 946.

17 Where a workman is injured by an accident arising out of and in the course

The right of action which the Wisconsin statute gives to the employer against a third person whose wrongdoing caused an injury to an employee is assignable, and the assignee may sue thereon in his

own name."

20

Where an employee is killed by the negligence of a third person, the association in which the deceased is insured may, under the Massachusetts act, enforce the right given to the employee 21

This right, however, does not amount to the right of equitable subrogation.22

Under the compulsory acts of Washington and New York, no express right of action is given against the negligent third person. The supreme court of Washington has held that a workman under the law of that state has no right of action against a third person whose negligence caused the injury.23 It was also held in the same case that the title of the Washington act, indicating that

of his employment, and a tort feasor other than his employer is responsible therefor, the right to compensation under the act is not lost by settlement with and release of the tort feasor. Newark Paving Co. v. Klotz (1914) 85 N. J. L. 432, 91 Atl. 91, affirmed (1914) 86 N. J. L. 690, 92 Atl. 1086.

18 The right to compensation under the workmen's compensation act 1911, as originally enacted, and the right to recover damages of a tort feasor, are of so different a character that the employer has no right by way of subrogation to the claim of the workman against the tort feasor. (N. J.) Ibid.

19 Where an employee was injured prior to the act of 1913, through the negligence of one not his employer, under such circumstances as to entitle him to compensation from his employer under the act of 1911, the employer cannot recover of the tort feasor the compensation paid to the employee under the statute; the statutory compensation is a part of the compensation of the employee for services rendered for which the employer receives a quid quo, and the loss to the employer is the value of the services of the employee to him, not the necessary expense of securing them. Interstate Teleph. & Teleg. Co. v. Public | Service Electric Co. (1914) 86 N. J. L. 26, 90 Atl. 1062, 5 N. C. C. A. 524.

20 McGarvey v. Independent Oil & Grease Co. (1914) 156 Wis. 580, 146 N. W. 895, 5 N. C. C. A. 803.

21 Turnquist v. Hannon (1914) 219 Mass. 560, 107 N. E. 443. The court said: "Where the legislature provides that the one who has afforded prompt relief to the

workmen, is broad enough to include the abolition of negligence as the ground of recovery against third persons, since it indicates that the act is intended to furnish the only compensation to be allowed. But the Federal circuit court of appeals subsequently held that an employee injured by the negligence of a third person has a right of action against such third person although he has no right of action against his employer.24 The Washington case was distinguished upon the ground that the third person sought to be held liable for damages was in fact the president of the employer railroad, and consequently the plaintiff in that case was attempting to hold another employee of the company liable. Nothing is made of this point in the Washington decision, but the language is general in its terms, and is in direct conflict with the decision of the Federal court. A lower New York court has also held that an injured employee may maintain an action for damages against negligent third persons.

25

dependents of the deceased may receive the penalty, there is no legal reason why it should not be enforced."

22 Part 3, § 15, simply provides that where the insurer has afforded the prompt relief to the dependents of the deceased employee which the act requires, it may enforce for its own benefit the rights against tortious third persons causing his injury which would otherwise have been available to the employee or his representative, and the section does not import into its terms the equitable principle of subrogation. (Mass.) Ibid.

23 Any right of action which an injured employee might otherwise have had for negligence either against his employer or against a third person must be considered as having been abolished by the Washing. ton act, which imposes upon the industry within its purview the burden arising out of injuries to their employees, and to that end withdraws all phases of the premises from private controversy regardless of questions of fault and to the exclusion of every other remedy, proceeding, and compensation except as provided by the act. Peet v. Mills (1913) 76 Wash. 437, post, 358, 136 Pac. 685, Ann. Cas. 1915D, 154, 4 N. C. C. A. 786.

24 Meese v. Northern P. R. Co. (1914) 127 C. C. A. 622, 211 Fed. 254, 4 N. C. C. A. 819, reversing 206 Fed. 222.

25 Notwithstanding § 11 of the New York act states that the liability prescribed by the statute shall be exclusive, this section refers solely to the liability of the employer, and does not prevent an injured employee from seeking redress in a common-law action against third parties whose negligence caused his injury. Lester v. Otis

The statutes usually contain provisions prohibiting any contractual limitation of the liability to pay compensation, or any waiver on the part of the employee of his right to receive compensation prescribed by the statute. An agreement by an employee to waive his right to compensation under the New York act is not only void as against public policy, but also under the express provision of 32 of that A claim for compensation for the death of a workman is not barred by a release by the decedent in his lifetime, contained in his application for admission into the railroad relief association, and by a further release by his widow on receipt of the death benefit from

act.26

said association.27

disease which arises out of and in the incapacity for work, and thereby imcourse of the employment which causes pairs the ability of the employee for earning wages; it is not limited to injury force, or as the result of accident in the caused by external violence, physical sense in which that word is commonly

jury."

As to what constitutes "injury by accident" under the English act, see ante, 29.

Under the American statutes, which, like the English, provide for compensation for "injuries by accident," the court has given the phrase the same construction as do the English courts. The word "accident" is said to be used in its popular sense,2 28 and has been defined as an

Elevator Co. (1915) 90 Misc. 649, 153 N. Y. Supp. 1058.

26 Powley v. Vivian & Co. (1915) 169 App. Div. 170, 154 N. Y. Supp. 426.

27 West Jersey Trust Co. v. Philadelphia & R. R. Co. (1915) N. J. L. 95 Atl. 753.

28 Boody v. K. & C. Mfg. Co. (1914) 77 N. H. 208, ante, 10, 90 Atl. 859, Ann. Cas. 1914D, 1280; Vennen v. New Dells Lumber Co. (1915) Wis. post, 273, 154 N. W.

640.

29 Bryant v. Fissell (1913) 84 N. J. L. 72, 86 Atl. 458, 3 N. C. C. A. 585, citing Fenton v. J. Thorley & Co. (1903) A. C. (Eng.) 443, 19 Times L. R. 684, 72 L. J. K. B. N. S. 787, 52 Week. Rep. 81, 89 L. T. N. S. 314.

30 State ex rel. Duluth Brewing & Malting Co. v. District Ct. (1915) 129 Minn. 176, 151 N. W. 912.

31 "The difference between the English and Massachusetts acts in the omission of the words 'by accident' from our act which occur in the English act as characterizing personal injuries is significant that the element of accident was not intended to be imported into our act." Hurle's Case (1914) 217 Mass. 223, post, 279, 104 N. E. 336, Ann. Cas. 1915C, 919, 4 N. C. C. A.

527.

32 Johnson's Case (1914) 217 Mass. 388, 104 N. E. 735, 4 N. C. C. A. 843.

33 In Milwaukee v. Industrial Commis

32

Compensation is recoverable not only for the incapacity which is the direct effect or result of the accident or injury, but also for all incapacity which, although indirect, may be considered as the proximate physical result of it; and such proximate result need not be one which could have been reasonably anticipated, since reasonable anticipation, although an element of negligence, is not an element of physical causation.33 sion (1915) 160 Wis. 238, 151 N. W. 247,. the court said: "Proximate cause as applied to negligence law has, by definition,. included within it the element of reasonable anticipation. Such element is a characteristic of negligence, not of physical causation. As long as it was necessary to a recovery to have a negligent act stand as the cause of a injury, it did no harm to characterize causation in part, at least, in terms of negligence. But when, as under the compensation act, no act of negligence is required in order to recover, the element of negligence, namely, reasonable anticipation, contained in the term 'proximate cause,' must be eliminated therefrom; and the phrase 'where the injury is proximately caused by accident,' used in the statute, must be held to mean caused in a physical sense, by a chain of causation which, both as to time, place, and effect, is so closely related to the accident that the injury can be said to be proximately caused thereby. To incorporate into the phrase 'proximately caused by accident' all the conceptions of proximate cause in the law of negligence would be to lug in at one door what the legislature industriously put out at another. Proximate cause, under the law of negligence, always has to be traced back to the conduct of a responsible human agency; under the compensation act the words 'proximately caused by accident' in terms relate to a physical