Doleman v. Levine, 6210.

• Decision Date: 05 November 1934
• Docket Number: No. 6210.,6210.
• Citation: 73 F.2d 842
• Parties: DOLEMAN v. LEVINE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

73 F.2d 842 (1934)

DOLEMAN v. LEVINE.^*

No. 6210.

United States Court of Appeals for the District of Columbia.

Argued October 4, 1934.

Decided November 5, 1934.

Nathan A. Dobbins, of Washington, D. C., for appellant.

Edward S. Brashears, Wilson L. Townsend, and Albert F. Beasley, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, HITZ, and GRONER, Associate Justices.

GRONER, Associate Justice.

On January 3, 1933, Robert H. Doleman, an employee of the Potomac Electric Power Company, while working in a manhole in one of the streets of Washington City, was struck by an automobile owned by Harry Levine — an alleged third party wrongdoer — and sustained injuries from which he died that day. Doleman left surviving, his widow, Mary E. Doleman, his father, Charles M. Doleman, and a brother, as his heirs at law and next of kin.

The widow elected to receive compensation from the power company, Doleman's employer, under the District of Columbia Compensation Act (Longshoremen's and Harbor Workers' Compensation Act, 33 US CA § 901 et seq.; Act May 17, 1928 D. C. Code 1929, T. 19, §§ 11, 12, 33 USCA § 901 note). The dependent father elected not to receive compensation, and, as administrator, instituted an action under the wrongful death statute (D. C. Code 1929, T. 21, §§ 1-3) to recover against Levine. On the 13th day of November, the power company (the employer) likewise brought an action against Levine (section 33 (d), 33 USCA § 933 (d).

In the suit of the administrator, Levine filed a plea in abatement setting forth and alleging the pendency of the two actions and also that the cause of action, if any, to recover for Doleman's death was assigned by the terms of the compensation act (the election of the widow) to the employer, and that the action of the administrator was not maintainable. The administrator demurred to the plea, and the court below overruled the demurrer and entered judgment for the defendant. From that judgment, this appeal is taken.

The appeal involves the construction of section 33 of the act or, stated differently, who is the proper party plaintiff in an action against a third party wrongdoer under the facts shown above? Here it is insisted on behalf of the administrator that the widow, by accepting compensation, cannot transfer the entire cause of action to the employer so as to give the employer the exclusive right to maintain the action; that since the compensation act gives the right of election severally, the action of one of the beneficiaries is not binding on the other.

In the interest of clarity, we set out in full the applicable paragraphs of section 33 (33 USCA § 933):

"Sec. 33. (a) If on account of a disability or death for which compensation is payable under this chapter the person entitled to such compensation determines that some person other than the employer is liable in damages, he may elect, by giving notice to the deputy commissioner in such manner as the commission may provide, to receive such compensation or to recover damages against such third person.

"(b) Acceptance of such compensation shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person, whether or not the person entitled to compensation has notified the deputy commissioner of his election.

"(c) The payment of such compensation into the fund established in section 44 section 944 of this chapter shall operate as an assignment to the employer of all right of the legal representative of the deceased (hereinafter referred to as `representative') to recover damages against such third person, whether or not the representative has notified the deputy commissioner of his election.

"(d) Such employer on account of such assignment may either institute proceedings for the recovery of such damages or may compromise with such third person either without or after instituting such proceeding.

"(e) Any amount recovered by such employer on account of such assignment, whether or not as the result of a compromise, shall be distributed as follows:

"(1) The employer shall retain an amount equal to —

"(A) The expenses incurred by him in respect of such proceedings or compromise (including a reasonable attorney's fee as determined by the deputy commissioner).

"(B) The cost of all benefits actually furnished by him to the employee under section 7 section 907 of this chapter.

"(C) All amounts paid as compensation, and the present value of all amounts payable as compensation, such present value to be computed in accordance with a schedule prepared by the commission, and the amounts so computed to be retained by the employer as a trust fund to pay such compensation as it becomes due and to pay any sum, in excess of such compensation, to the person entitled to compensation or to the representative; and

"(2) The employer shall pay any excess to the person entitled to compensation or to the representative. * * *

"(h) The deputy commissioner may, if the person entitled to compensation under this chapter is a minor, make any election required under subdivision (a) of this section, or may authorize the parent or guardian of the minor to make such election."

In substance, appellant asks us to construe the assignment provisions of section 33 as confined (a) to a case where the employee survives and accepts compensation, or (b) where in the event of death there is no person entitled to compensation under the act (see section 44, 33 USCA § 944). In other words, appellant would read subsection (a) of section 33, 33 USCA § 933(a) as giving to the injured person the right to accept compensation or to recover damages against a third person, and subsection (b), 33 USCA § 933(b) as vesting in the employer, in the event of such election, the right to recover damages from the third...