Alfred Davis v. Central Vermont Railway Co.

• Decision Date: 03 May 1921
• Parties: ALFRED DAVIS v. CENTRAL VERMONT RAILWAY COMPANY
• Court: Vermont Supreme Court

113 A. 539

95 Vt. 180

ALFRED DAVIS v. CENTRAL VERMONT RAILWAY COMPANY

Supreme Court of Vermont

May 3, 1921

Special Term at Rutland, November, 1920.

ACTION OF TORT for negligence. Plea, the general issue and special plea. Trial by jury at the June Term, 1920, Windsor County Moulton, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

J W. Redmond and W. R. McFeeters for the defendant.

Walter S. Fenton for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

SLACK

Davis received the injuries complained of September 12, 1916, while in the employ of the Hartford Woolen Company. Both he and the Woolen Company were at the time subject to the provisions of the Workmen's Compensation Act, and the latter was insured, as required by that act, with the Travelers Insurance Company. Davis elected to take compensation under G. L. 5775, and an award therefor was made, and the same was complied with.

That was the situation when this suit was commenced. The action is brought and prosecuted in behalf of the Woolen Company and its insurer, in the name of Davis, and the original declaration is in the common-law form for negligence. The defendant pleaded the general issue, and also denied liability because Davis had elected to take, and had received, compensation for his injuries under the Workmen's Compensation Act. During the trial, the defendant challenged the right of the Woolen Company and the Insurance Company to recover in the name of Davis and under the declaration as then drawn, and the plaintiff thereupon had leave to, and did, file an amended declaration which he denominated a second count, but which is identical with the original count, except it contains averments that Davis and the Woolen Company were subject to the provisions of the Workmen's Compensation Act, that the Woolen Company was insured with the Travelers Insurance Company, and that Davis had elected to take, and had been paid, compensation for his injuries.

At the close of all the evidence the defendant moved for a directed verdict on several grounds, including the following: That Davis having elected to take compensation under the Workmen's Compensation Act was barred from maintaining this suit; that there was a variance between the declaration and the proof, the declaration setting up a right of action in Davis at common law and the proof being of a right of action in his employer under the statute; that the action was brought in the name of Davis and for his sole benefit, when the only right of action that existed at the time the suit was brought was the right of his employer to proceed under the statute, and that Davis, having elected to take compensation, had waived his common-law remedy and the common-law right then became the right of the employer, and could only be enforced under a declaration setting up the facts on which it was based.

These questions involve the construction of that part of G. L. 5774, that reads as follows: "The rights and remedies granted by the provisions of this chapter to an employee on account of personal injuries for which he is entitled to compensation under the provisions of this chapter, shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, at common law or otherwise on account of such injury," and G. L. 5775, which reads as follows: "When an injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in some person other than the employer a legal liability to pay damages in respect thereto, the injured employee may, at his option, either claim compensation under the provisions of this chapter or obtain damages from or proceed at law against such other person to recover damages; and, if compensation is claimed and awarded under the provisions of this chapter, an employer having paid the compensation or having become liable therefor shall be subrogated to the rights of the injured employee to recover against such person; provided, if the employer recovers from such other person damages in excess of the compensation already paid or awarded to be paid under the provisions of this chapter, then any such excess shall be paid to the injured employee less the employer's expenses and costs of action."

The "other rights and remedies" excluded by the provisions of G. L. 5774, if an injured employee elects to take compensation, were the provisions of that section to be construed alone, or in connection with the provisions of the preceding sections, might well be taken to mean other rights and remedies which the employee had against the employer; but when the provisions of this section are read in connection with the provisions of G. L. 5775, as they must be, it seems clear that the election to take compensation, if the same is awarded, precludes the employee from pursuing any other right or remedy against any person. He may pursue either remedy; he cannot have the benefit of both. But this does not preclude a recovery in this case. When the Woolen Company paid Davis Compensation or became liable therefor, it succeeded to his right to recover damages from the defendant, and, under the statute, his right of action passed to the Woolen Company without assignment.

The statute is silent as to the person in whose name, after payment by the employer, or after his liability is fixed, action shall be brought. In Maine, under a statute identical with G. L. 5775, in substance, the insurer of the employer was permitted to maintain an action in the name of the injured employee. Donahue v. Thorndike ...