Belfore v. Vermont State Highway Dep't
| Decision Date | 04 November 1936 |
| Docket Number | No. 1007.,1007. |
| Parties | BELFORE v. VERMONT STATE HIGHWAY DEPARTMENT et al. |
| Court | Vermont Supreme Court |
Appeal from Commissioner of Industries; Leon D. Latham, Jr., Special Deputy Commissioner.
Proceeding under the Workmen's Compensation Act by Charles Belfore, employee, opposed by the State Highway Department, employer, and the Traveller's Insurance Company, insurance carrier. From an award of compensation by the Deputy Commissioner of Industries, employer and insurance carrier appeal. Reversed and remanded.
Argued before POWERS, C. J., and SLACK, MOULTON, and SHERBURNE, JJ., and JEFFORDS, Superior Judge.
Lawrence, Stafford & O'Brien, of Rutland, for appellants.
Novak & Bloomer, of Rutland, for appellee.
This is an appeal from an award of compensation made under the provisions of chapter 264, P.L. (6480 et seq.). The claimant suffered an injury which concededly arose out of and during the course of his employment by the Vermont state highway board, when he was run over by an automobile truck owned by Thome and driven by Forguites. He brought an action at law against Thorne in the District Court of the United States for the District of Vermont to recover for his injury, but it appeared upon trial that the truck, at the time of the accident, was under lease from Thorne to the highway board, and consequently a verdict was directed in Thome's favor. Within six months after judgment had been entered on the verdict, the claimant gave notice that he would seek compensation from the highway board, the employer, under P. L. 6495.
The defense interposed at the hearing by the employer and the insurance carrier was that by the institution of his action against Thorne the claimant had elected to avail himself of his common-law remedy against a third party and was barred from receiving compensation under P.L. c. 264. The deputy commissioner of industries found that the action was brought under a mistake of fact and made the award. The questions raised by the appeal relate to the soundness of the ruling of the deputy commissioner that the claimant had not made such an election as would preclude him from seeking compensation; and to the sufficiency of the evidence upon which the deputy commissioner made his finding of a mistake of fact.
By P.L. 6511 it is provided that: "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 that person." By P.L. 6485(I) the term "employer" includes, under the present circumstances, the insurer. Under P.L. 6511 an injured employee to whom the two remedies are open may pursue either, but cannot have the benefit of both. Davis v. Central Vermont Ry. Co., 95 Vt. 180, 183, 113 A. 539.
P.L. 6536 provides that: "In case, through mistake of law or fact, a suit has been brought [by an employee] to recover damages in any court and final judgment is against the employee, the limitation [of time for giving notice of claim for compensation under P.L.6535] shall not begin to run until six months after such suit has been finally determined." This section is a more recent enactment than P.L. 6511, since it first appears in No. 159, § 4, Acts 1919, as an amendment to G.L. 5796, now P.L. 6535, and, with slight changes which are immaterial here, became a separate section of the Public Laws of 1933. P.L. 6511 was originally No. 164, § 8, Acts 1915, and later G.L. 5775. If there is any conflict between the two, the later controls (In re Ogilvie's Estate, 291 Pa. 326, 139 A. 826, 828), and it is our duty, since P.L. 6511 is general and P.L. 6536 is special, to read the two together and harmonize them, if possible, with a view to giving effect to a consistent legislative policy, and, to the extent of any repugnancy between them, the special will prevail regardless of their order or dates (In re James, 99 Vt. 265, 272, 132 A. 40; Stearns v. Graham, 85 Vt. 486, 487, 82 A. 835). Since both are a part of chapter 264, P.L, which deals with the subject of workmen's compensation and the procedure for obtaining it, the sections are sufficiently cognate to be in pari materia, and they are to be construed with reference to each other as parts of one system, and the legislative intent, thus ascertained, must be given effect. Grand Lodge of Vermont v. City of Burlington, 104 Vt. 515, 519, 162 A. 368. The construction is, moreover, to be liberal. P.L. 6578; Blake v. American Fork & Hoe Co, 99 Vt. 301, 304, 131 A. 844; Packett v. Moretown Creamery Co, 91 Vt. 97, 101, 99 A. 638, L.R.A.1918F, 173.
It is said in Petraska v. National Acme Co, 95 Vt. 76, 81, 113 A. 536, that the provisions of G.L. 5799 (now P.L. 6535), of which, as we have seen, P.L. 6536 was originally an amendment, apply only to the notice of injury; and the defendants argue that, upon this authority, the provisions of P.L. 6511 are not affected by the latter statute, and that the institution of the action against Thorne is such an election as bars this proceeding against the employer. But the language of the Petraska Case must be read in accordance with its context and the point in issue, which was whether under the circumstances therein disclosed any notice of injury was required by the law; and was used in making a distinction between G.L. 5799 and G.L. 5797 (now P.L. 6537), which specified the form and contents of the notice. Nothing contained therein prevents our consideration of the question whether P.L. 6536 expressly or impliedly modifies P.L. 6511.
If the mere bringing of an action by the injured employee against a person other than the employer, regardless of its outcome or the circumstances under which it is instituted, constitutes an election to forego any claim for compensation, and precludes a subsequent resort to the latter remedy, as the defendants contend, P.L. 6536 would be a useless piece of legislation. There would be no situation in which it could apply, for there would be no object...
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