other person. The injured employé cannot receive directly both payment from the third party and compensation from his employer. If he receives payment from the third party, it would seem that such settlement, if not set aside, would bar his claim for compensation under the act. Cripp's Case, 216 Mass. 586, 588, 104 N. E. 565, Ann. Cas. 1915B, 828; Page v. Burtwell (1908) 2 K. B. 758. Nor have we to consider the question of election in its different aspects. Turnquist v. Hannon, 219 Mass. 560, 564, 107 N. E. 443; Labuff v. Worcester Cons. Street Ry., 231 Mass. 170, 120 N. E. 381. If the injured employé claims compensation under the act, as here, and the same is awarded, the employer, having paid the compensation or become liable therefor, succeeds to the rights of the injured employé to recover damage against such other person. No assignment is required by the terms of the law; but the employer, upon paying the award or becoming liable therefor, is at once vested with the injured employé's right of action against the wrongdoer. McGarvey v. Ind. Oil & Grease Co., 156 Wis. 580, 581, 146 N. W. 895. In proceeding against such other person the employer is not limited in his recovery to the amount paid by him, as seems to have been held in U. S. Fidelity & Guaranty Co. v. N. Y. Railways Co., 93 Misc. Rep. 118, 156 N. Y. Supp. 615; but the section clearly permits the employer by an action against such other person to reimburse himself and also to recover for the injured employé a sum over and above the amount for which the employer was absolutely liable, if the evidence should permit such recovery. The liability of such other party to pay damages in respect to the injury is not affected by the election of the injured employé to receive compensation under the act. The statute is silent as to the plaintiff in whose name, after payment by the employer, or after his liability is fixed, action shall be brought. The Massachusetts act (Laws 1911, c. 751, as amended by Laws 1912, c. 571) in terms provides that it may be brought either in the name of the emplové or in the name of the insurer; and in Turnquist v. Hannon, 219 Mass. 560, 107 N. E. 443, the action was brought in the name of the administratrix of the deceased injured employé, for the benefit of the insurance company. In a case under the Illinois act (Laws 1913, p. 335) it was held that an action was properly brought by the employer against such other person. Marshall-Jackson Co. v. Jeffrey, 167 Wis. 63, 166 N. W. 647. So under the Nebraska act (Laws 1913, c. 198). Otis Elevator Co. v. Miller & Paine, 240 Fed. 376, 153 C. C. A. 302. In the latter case the court said: "The action brought by Miller & Paine against the elevator company under its right of subrogation must be treated, so far as the right to recover is concerned, just as if the action had been brought by the administrator of the estate of Pettengill" (the injured employé). [2] We perceive no good reason why the action for the benefit of the employer may not be brought in the name of either the employer or the employé. The essential allegations as to defendant's liability must be the same in either case. In fact, it seems a much more simple procedure to bring the action, as was done in the instant case, in the name of the injured employé for the benefit of the party in interest. The cases on assigned choses in action are analogous. By section 1, part 1. of the Workmen's Compensation Act (R. S. c. 50), the term "employer," if the employer is insured, "includes the insurer unless the contrary intent is apparent from the context or it is inconsistent with the purposes of this act." We perceive no contrary intent from the context of section 26, nor is such a construction inconsistent with said section or the act. The clear intent of the section is that the party paying compensation under the act, or whose liability therefor is fixed, shall succeed to the rights of the injured employé to recover against the wrongdoer. We accordingly hold that this action was rightly brought in the name of the injured employé for the benefit of the insur Vol. V-Comp. 63. ance company which paid the compensation awarded. In Marshall-Jackson Co. v. Jeffrey, supra, it was held that the right of the employer to enforce the employé's claim did not vest in the employer any such right of action which could pass by subrogation to an insurer of the employer for saving him harmless from loss under the compensation law of Illinois. But the inclusive definition of the term “employer,” quoted above, is not found in the Illinois act. [3, 4] We come to the questions specifically submitted by the report. We are of the opinion that the amendment offered by the plaintiff was allowable; it did not introduce a new cause of action; as before stated, the liability of the defendant was the same whether the action was for the benefit of the injured employé or the insurer. But we think that the proposed amendment was unnecessary, and the evidence of payment by the insurance company immaterial. The defendant could have no possible interest as to the appropriation of the amount for which it was liable, nor could its liability be affected by the fact that the damages recovered might or might not be divided between the employé and insurer. Turnquist v. Hannon, 219 Mass. 560, 565, 107 N. E. 443; Otis Elevator Co. v. Miller & Paine, 240 Fed. 376, 153 C. C. A. 302. "Just how the amount recovered in this action shall be divided as between the defendants, Miller & Paine, or the insurance company, is no concern of the elevator company." We are accordingly of the opinion that the action can be maintained without either the offered amendment or evidence of payment by the insurance company in compliance with the Workmen's Compensation Act. In fact, evidence of the amount paid might have a tendency prejudicial to the plaintiff upon the question of damages. In accordance with the terms of the report, the mandate must be: MAYOR AND COUNCIL OF HAGERSTOWN v. SCHREINER et al. (No. 79.) (Court of Appeals of Maryland. Jan. 16, 1920.) 109 Atlantic Reporter 464. MASTER AND SERVANT -AWARD UNDER COMPENSATION ACT HELD IN LIEU OF REMEDY AGAINST EMPLOYER'S JOINT TORT-FEASOR. Employee's surviving wife and children, awarded compensation under Workmen's Compensation Act, $35, cannot recover damages for death from employer's joint tort-feasor, notwithstanding section 57, authorizing suit against person other than employer, where such other person is liable for injury or death for which compensation is payable, such statute merely entitling them to sue the joint tort-feasor in lieu of collecting compensation, but not entitling them to pursue both remedies, in view of section 14, as amended by Acts 1916, c. 597, and 3 Code Pub. Gen. Laws, art.101, §§15, 45, and 36. (For other cases, see Master and Servant, Dec. Dig. §351.) Appeal from Circuit Court, Carroll County; Wm. Henry Forsythe, Jr., Judge. Action by Florence Schreiner and others against the Mayor and Council of Hagerstown, a corporation. Judgment for plaintiffs, and defendants appeal. Reversed and amended. Argued before Boyd, C. J., and Burke, Thomas, Pattison, Urner, Stockbridge, and Adkins JJ. Alex, R. Hanger, of Hagerstown, and F. Neal Parke, of Westminster (J. A. Mason, of Hagerstown, and Bond & Parke, of Westminster, on the brief). for appellants. Frank G. Wagaman, of Hagerstown (E. O. Weant, of Westminster, and Omer T. Kaylor, of Hagerstown, on the brief), for appellees. BURKE, J. The appeal in this case presents for determination the true construction of section 57 of the Acts of 1914, chapter 800, known as the Workmen's Compensation Act. That section is codified as section 58 of article 101 of the Code, and is as follows: "Where the injury or death for which compensation is payable under this article was caused under circumstances creating a legal liability in some person, other than the employer, to pay damages in respect thereof, the employé or, in case of death, his personal representative or dependents as hereinbefore defined, may proceed either by law against that other person to recover damages or against the employer for compensation under this article, or in case of joint tort-feasors against both; and if compensation is claimed and awarded or paid under this article any employer may enforce for the benefit of the insurance company or association carrying the risk or the state accident fund, or himself, as the case may be, the liability of such other person; provided, however, if damages are recovered in excess of the compensation already paid or awarded to be paid under this article, then any such excess shall be paid to the injured employé or, in case of death, to his dependents, less the employer's expenses and costs of action." The question arose in this way: On the 24th of April, 1918, Clarence M. Schreiner, an employé of the Cumberland Valley Telephone Company. died as the result of an accidental injury arising out of and in the course of his employment by that company. He left surviving him a widow, Florence Schreiner, and two minor children. The widow and children were dependent upon him for support. On the 10th of August, 1918. Mrs. Schreiner, the widow, on behalf of herself and the children, filed a claim under the act with the State Industrial Accident Commission for compensation as dependents, and on the 21st of September, 1918, the commission "ordered that compensation at the rate of $8.08 per week, payable weekly, be paid to the said Florence Schreiner by Cumberland Valley Telephone Company, employer, and Etna Life Insurance Company, insurer, for the period of eight years, from the 24th day of April, 1918, not to exceed, however, the aggregate amount as provided in section 35 of chapter 800, Acts of the General Assembly of Maryland of 1914, and such further sum not to exceed $75 as the said claimant may have paid or obligated herself to pay on account of the funeral expenses incurred by reason of the death of the said Clarence Schreiner, and that final settlement receipt be filed with the commission in due time, and it is also hereby ordered and directed that the said Florence Schreiner apply said compensation to the use of herself and her children in such proportion as under the circumstances may seem to her best." Thereafter, to wit, on December 31, 1918, the widow and children of the deceased brought suit against the mayor and city council of Hagerstown, a municipal corporation. to recover damages for the death of Clarence M. Schreiner upon the ground that the death of the husband and father was caused by the joint negligence of the defendant and the Cumberland Valley Telephone Company, his employer. The case was removed to the circuit court for Carroll county. The trial in that court resulted in a verdict and judgment for the plaintiffs, and this is the defendants' appeal from that judgment. The defendant pleaded the general issue and three special pleas in bar. The second and third pleas set out the application of Mrs. Schreiner to the state Industrial Accident Coramission and the award of the commission, allowing compensation. The plaintiffs demurred to the special pleas, and the court sustained the demurrer. During the progress of the trial the defendant offered to show the application of Mrs. Schreiner to the state Industrial Accident Commission for compensation and the award of the commission as hereinabove transcribed. Upon objection by the plaintiffs the court refused to permit the introduction of these facts, and this ruling constitutes the second bill of exceptions. The question is as to whether the plaintiffs, under the section of the article quoted (and that is the only provision of law upon which they rely) can maintain this suit. An employer, who is subject to the provisions of the Workrnen's Compensation Law, and who has provided the insurance directed by section 15 of article 101 of the Code to secure compensation to his employés, cannot be sued at law for injuries sustained by them, except as provided in the act, and the only exception in the act applicable to such a situation as is presented by this record is found in section 45 of article 101 of the Code, which provides that: "If injury or death results to a workman from the deliberate intention of his employer to produce such injury or death, the employé, the widow, widower, child, children, or dependents of the employé shall have the privilege either to take under this article or have cause of action against such employer, as if this article had not been passed.” As against an employer who has provided the insurance and who has not "from deliberate intention produced such injury or death,' "the remedy by compensation under the act is exclusive. That this is the policy of the state is obvious from the preamble of the acts of 1914, chapter 800, and from other declarations contained in it. In its preamble is found this declaration: "The state of Maryland, exercising herein its police and sovereign power, declares that all phases of extrahardous employments be, and they are hereby withdrawn from private controversy, and sure and certain relief for workmen injured in extrahazardous employment and their families and dependents are hereby provided for, regardless of question fault and to the exclusion of every other remedy, except as provided in this act." s of It is also evident from section 14, chapter 800, of the Acts of 1914, as amended by the Acts of 1916, chapter 597, and by section 36 of article 101 wherein it is declared that: "Each employé (or in case of death his family or dependents), entitled to receive compensation under this article shall receive the same in accordance with the following schedule, and except as in this article otherwise provided, such payment shall be in lieu of any and all rights of action whatsoever against any person whomsoever." Had not the employer of the deceased provided the insurance directed by the act, or had it deliberately caused his death, suit at law could n doubtedly have been maintained against it, and upon allegations of the narr. it could have been sued as a joint tort-feasor with the defendant. But in the absence of any allegations or evidence of such facts, it appears to be plain that the plaintiffs' sole remedy for the loss they have sus tained is confined to the compensation provided by the act, unless. in addition to the compensation already allowed, they are permitted by section 58 to recover from the defendant damages for the same loss. Such a construction would lead to very anomalous results. It would permit three compensations for the same loss: First, compensation under the act; secondly, the recovery of damages against some third person whose negligence contributed to produce the death or injury; and, thirdly, the right, in case of a recovery by the employer against such third person for the benefit of the insurance company or association carrying the risk or the state accident fund, or himself, as the case may be, to any excess recovered over and above the compensation paid or awarded, less the employer's expenses and costs of action. Such a construction would upset the whole policy and design of the act. We think the plain meaning of section 58, so far as concerns the question here involved, is this: If the injury or death has been caused under such circumstances as to fix a legal liability upon some person or persons, other than the employer, the employé, or, in case of his death, his personal representatives or dependents, may elect to sue such other person or persons at law, or may claim compensation under the act, but he or they cannot pursue both remedies. If he or they accept compensation under the act, such payment must be held as declared by section 36, article 101, to be "in lieu of any and all rights of action whatsoever against any person whomsover." This construction is in accord with the design and general purpose of the act, and is in harmony with its provisions, and it finds support in Frazier v. Leas, 127 Md. 572, 96 Atl. 764, Salvuca v. Ryan & Reilly Co., 129 Md. 235, 98 Atl. 675, Adleman v. Ocean Accident & Guarantee Co., 130 Md. 572, 101 Atl. 529, Ann. Cas. 1918B, 730, and Salvuca v. Ryan & Reilly Co., 131 Md. 265, 101 Atl. 710. It follows from the views expressed that there was error in the ruling embraced in the second exception, and in sustaining the demurrer to the defendant's second and third special pleas. Judgment reversed, with costs, and cause remanded. BOLDEN'S CASE. In re FISK RUBBER CO. In re TRAVELERS' INS. CO. (Supreme Judicial Court of Massachusetts. Hampden. March 30, 1920.) 126 Northeastern Reporter 668 1. MASTER AND SERVANT-FINDING OF FACT BY INDUSTRIAL BOARD SUPPORTED BY EVIDENCE IS FINAL. Finding of fact by the Industrial Accident Board supported by evidence is final and cannot be reviewed on appeal. (For other cases, see Master and Servant, Dec. Dig. § 418[6].) 2. MASTER AND SERVANT-EVIDENCE HELD TO SUPPORT FINDING THAT INJURY DID NOT ARISE OUT OF EMPLOYMENT. In proceeding under the Compensation Act for injuries to an employee when using a bottle to draw water for drinking from a bubble fountain, evidence held to sustain the finding of the Industrial Accident Board that the injury did not arise out of the employment, but was due to an added peril imported by the servant himself. (For other cases, see Master and Servant § 405[4].) |