Barry v. Bay State Street Railway Co.

• Citation: 222 Mass. 366
• Parties: JAMES J. BARRY v. BAY STATE STREET RAILWAY COMPANY.
• Decision Date: 07 January 1916
• Court: United States State Supreme Judicial Court of Massachusetts

222 Mass. 366

JAMES J. BARRY v. BAY STATE STREET RAILWAY COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1916

November 10, 1915.

Present: RUGG, C.

J., BRALEY, DE COURCY, CROSBY, & CARROLL, JJ.

Workmen's Compensation Act, Waiver of provisions by employee Compromise agreement, Jurisdiction of Industrial Accident Board, Election. Estoppel. Evidence, Presumptions and burden of proof. Waiver. Notice. Fraud. Jurisdiction.

An employee of a subscriber under the workmen's compensation act, who at the time of an injury received by him in the course of his employment had not given the notice required by St. 1911, c 751, Part I, Section

5, in order that he should not come under its provisions, is subject to the act although his failure to give the notice was due to the fact that he "did not know there was such a thing as the workingmen's compensation law."

Where, in an action against a street railway company for personal injuries received by the driver of a team which was run into by a street car of the defendant, the defendant alleges and proves that the plaintiff was subject to the provisions of the workmen's compensation act and under

St. 1911, c.

751, Part III Section 4, as amended by St. 1912, c. 571,

Section 9, had made with the company insuring his employer an agreement in regard to compensation which had been approved by the Industrial

Accident Board and had received full payment as provided by the agreement, the plaintiff, in order to show that he is not precluded from prosecuting his action by the provision of St. 1911, c. 751 Part III,

Section 15, to the effect that under such circumstances he could not both receive compensation under the act from his employer and also proceed at law against the defendant, may show that, although the agreement which was approved by the board was signed by him, his signature was procured by such false representations that it was void and was not an election under St. 1911, c 751, Part III, Section 15, so that the board had no jurisdiction to approve it under the amended

Section 4.

If an employee, who was subject to the provisions of the workmen's compensation act and was able to read readily, at the suggestion of his employer's paymaster signed, when he was not under such physical disability that he was unable to comprehend the transaction, an agreement with the insured as to compensation for an injury received by him due to a collision of a team which he was driving with a street railway car, and the agreement had printed upon its face that it was subject to the provisions of the workmen's compensation act and afterwards was signed by the insurer and under St. 1911, c. 751,

Part III, Section 4, as amended by St. 1912, c. 571, Section 9, was approved by the Industrial Accident Board; and if such employee also received all payments in accordance with the agreement and signed each week a receipt stating that the payment was made subject to the workmen's compensation act, and a final receipt which stated that it was in settlement of compensation under the act "for all injuries" received by him in the collision, such employee is estopped to deny the validity of such agreement and settlement on the ground that it was procured from him through false representations as to its effect, made by his employer's paymaster, where it does not appear that the paymaster was acting under the authority of the insurer or that his acts were known to the insurer when the insurer signed the agreement.

TORT for personal injuries received on July 27, 1912, when a wagon which the plaintiff, an employee of the Walworth Manufacturing Company, was driving was run into by a street railway car operated by the defendant. Writ dated August 26, 1912.

In the Superior Court the case was tried before Brown, J. The plaintiff introduced sufficient evidence to warrant a submission of the case to the jury on the questions whether the plaintiff was in the exercise of due care and whether the defendant's servants were negligent.

The defendant introduced in evidence an instrument dated August 12, 1912, and signed by the plaintiff and "The American Liability Insurance Company, by Russell Gray, Presidt.," and approved by the Industrial Accident Board on October 29, 1912. Material portions of this agreement, with the same use of capital letters as in the original, were as follows: "Date Aug. 12, 1912. Workmen's Compensation Act.

"Every agreement in regard to compensation under this act is subject to approval by the Industrial Accident Board, and a memorandum of the same must be filed with the Board, whether said agreement is written or oral, and whether it is made by one or both parties, or in the form of a receipt. Any weekly payment or settlement under the act, whether purporting to be final or otherwise, may be reviewed by the Board. (Section 20, Part II., and sections 4 and 12, Part III., Chapter 751 of the Acts of 1911, and amendments thereto, and Rule No. 6 adopted by the Board.)

"James J. Barry Employee. "THE AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Insurer.

"AGREEMENT IN REGARD TO COMPENSATION.

"We, James J. Barry residing at 602 Third Street city or town of South Boston and THE AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, have reached an agreement in regard to compensation for the injury sustained by said employee while in the employ of the Walworth Manufacturing Company. [Here follow details of the accident and injury.]

"The terms of the agreement follow: "Compensation at rate of one half of average weekly earnings during total incapacity, beginning fifteenth day after injury."

It also appeared that the plaintiff had been paid $7.50 each week from August 12 to September 29, and at the time of each payment had signed a receipt in the following form:

"RECEIPT ON ACCOUNT OF COMPENSATION. "Received of the AMERICAN MUTUAL LIABILITY INSURANCE COMPANY of Boston the sum of Seven dollars and 50 cents, being the proportion of my weekly wages for the period from . . . to . . . under the Massachusetts Workmen's Compensation Act, subject to review by the Industrial Accident Board. [Here followed the signature and address.] "Workmen's Compensation Act.

"Every agreement in regard to compensation under this act is subject to approval by the Industrial Accident Board, and a memorandum of the same must be filed with the Board, whether said agreement is written or oral, and whether it is made by one or both parties, or in the form of a receipt. Any weekly payment or settlement under the act, whether purporting to be final or otherwise, may be reviewed by the Board (Section 20, Part II and Sections 4 and 12, Part III, Chapter 751, of the Acts of 1911 and amend ments thereto, and rule No. 6 adopted by the Board)."

On October 10, 1912, the plaintiff signed a receipt similar in every particular to the foregoing, except that it stated that the period therein described was a period "including final day of disability," that the sum then paid made "in all, with weekly payments received by me, the sum total of Fifty-two dollars and 50 cents, in settlement of compensation tinder the Massachusetts Workmen's Compensation Act, for all injuries received by me on or about the 27th day of July, 1912, while in the employ of Walworth Manufacturing Co., First & O Sts., South Boston, Mass."

The plaintiff contended and introduced evidence tending to show that his signature to the agreement in regard to compensation was procured when he was interviewed at his home by one Watt, the paymaster of the Walworth Manufacturing Company; that over three weeks before that interview he had placed his claim against the defendant in the hands of an attorney who had had some correspondence and negotiations with the claim agent of the defendant; that at the time of his interview with Watt he, the plaintiff, "did not know there was such a thing as the workingmen's compensation law;" that when Watt "came down with the pay to me he said, `Hello, Jim, I am sorry you got hurt.' He said, `I have got a little money for you.' I said, `That's good, Fred.' I said, `Don't you know I have got a case against the Bay State Railroad?' And he said, `That ain't got nothing to do with the case at all,' he said. I said, `That's all right,' I said, `but, Fred,' I said, `if it has got anything to do at all in the line...