Canadian Pac. Ry. Co. v. Morin
Decision Date | 09 November 1931 |
Docket Number | No. 21.,21. |
Citation | 54 F.2d 246 |
Parties | CANADIAN PAC. RY. CO. v. MORIN. |
Court | U.S. Court of Appeals — Second Circuit |
Walter H. Cleary and J. W. Redmond, both of Newport, Vt., for appellant.
Smith & Bishop, of Newport, Vt., and David E. Porter, of St. Johnsbury, Vt., for appellee.
Before MANTON, L. HAND, and SWAN, Circuit Judges.
Arthur Morin, the plaintiff's husband, met his death on February 2, 1929, through the fall of a defective elevator attached to an icehouse which the defendant railway maintained at Newport, Vt. He was survived by his widow and their three minor children. Morin was in the employ of one Handy, whom the railway had engaged to fill its icehouse, and, when the fatal accident happened, he was at work in the line of his duty as Handy's employee. It is conceded that the railway is liable in damages for his death unless the facts set up in its answer, and admitted by the plaintiff's demurrer, constitute a defense. The answer avers that Morin and his employer had accepted, and were subject to, the provisions of the Workmen's Compensation Act ( ); and that on July 2, 1929, and prior to the commencement of this suit, the plaintiff, as administratrix of her husband's estate, had made claim for compensation under said act, given written notice thereof to Handy, and filed said notice and claim for compensation with the commissioner of industries. These facts, it is contended, constituted an election by the plaintiff to proceed under the Compensation Act and preclude the bringing of this action.
The question presented is one of statutory construction upon which the Vermont courts have not directly passed. We must therefore undertake it without the aid of an authoritative guide. The essential provisions of the statute read as follows:
It will be observed that section 5774 makes the rights and remedies granted by the Compensation Act exclusive of "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." Section 5775 then enacts an exception to the generality of this rule; it grants the injured employee an option, when some person other than the employer is legally liable to pay damages on account of the injury, either to claim compensation or to obtain damages from or proceed at law against such other person and it provides for subrogation to the employer "if compensation is claimed and awarded." The two sections must be read together; and, if the injured employee has exercised his option to claim compensation — at least if the compensation proceeding has progressed to an award — he may not pursue the remedy of suit against the tort-feasor. So much is clear from Davis v. Central Vt. Ry. Co., 95 Vt. 180, 183, 113 A. 539, 540, where the court said with reference to section 5774:
In the Davis Case not only had the award been made, but compensation had been received pursuant to it. The case therefore leaves undecided the question now presented; namely, whether the option to "claim compensation" is exercised so as to preclude a suit when a person entitled to compensation gives to the employer and files with the commissioner of industries the notice of injury and claim for compensation prescribed by section 5796.
Under the section last mentioned a "proceeding" for compensation is initiated by giving to the employer a notice of the injury and making a claim for compensation, and the making of such claim within the time specified in section 5796 has been held to be a jurisdictional requirement. Petraska v. National Acme Co., 95 Vt. 76, 80, 113 A. 536. The appellant argues with much persuasive force that "claim compensation" in section 5775 means the same as "a claim for compensation" in section 5796; that this is the first alternative of the "option," the second being to obtain damages from or "proceed at law" against the wrongdoer; and that to construe the words "claim compensation" as though they read "obtain compensation" or "obtain an award" would be unjustifiable judicial legislation rather than permissible interpretation. We are not unmindful of the strength of this argument. The distinction between the claim, the award, and the payment, of compensation is clearly recognized throughout the statute, and section 5775 itself, in dealing with subrogation, differentiates between compensation claimed,...
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