Fid. & Cas. Co. of New York v. Huse & Carleton, Inc.

• Decision Date: 13 September 1930
• Citation: 172 N.E. 590,272 Mass. 448
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. HUSE & CARLETON, Inc.

272 Mass. 448

172 N.E. 590

FIDELITY & CASUALTY CO. OF NEW YORK

v.HUSE & CARLETON, Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 13, 1930.

Exceptions from Superior Court, Suffolk County; Nelson P. Brown, Judge.

Action by the Fidelity & Casualty Company of New York against Huse & Carleton, Incorporated. Verdict for plaintiff. On defendant's exceptions.

Exceptions sustained.

Joseph Wentworth, of Boston, for plaintiff.

E. A. Whitman, of Boston, for defendant.

RUGG, C. J.

This action of tort was begun on July 5, 1916, by an insurer under the Workmen's Compensation Act, who had paid under that act compensation for the death of an employee of a subscriber, to enforce liability for such death against the defendant, a person other than the subscribing employer. St. 1911, c. 751, part 3, § 15, as amended by St. 1913, c. 448, § 1. See now G. L. c. 152, § 15. The alleged liability of such third person thus sought to be enforced was that established by St. 1907, c. 375, whereby one, who, by his own negligence or by that of his servant or agent while engaged in his business caused the death of a person in the exercise of due care and not in his employment, was made liable to a penalty ‘to be recovered in an action of tort * * * by the executor or administrator of the deceased, one-half thereof to the use of the widow and one-half to the use of the children of the deceased; or, if there are no children, the whole to the use of the widow; or, if there is no widow, the whole to the use of the next of kin.’ See now G. L. c. 229, §§ 1, 5. Brooks v. Fitchburg & Leominster Street Railway, 200 Mass. 8, 86 N. E. 289. The first count of the amended declaration alleges that Christina J. Anderson, widow of the deceased employee and dependent upon him for support, was appointed administratrix of his estate on June 8, 1916, that the deceased while in the employ of a subscriber under the Workmen's Compensation Act met his death by reason of the negligence of the defendant and that the plaintiff as insurer has paid to such administratrix the compensation due under the act. The answer among other matters denies that the administratrix was ever married to the decedent. The appointment of the administratrix as alleged appears to have been conceded. The plaintiff as insurer paid the full amount of $4,000, awarded as compensation under the Workmen's Compensation Act, to the administratrix of the estate of the deceased.The decision of the judge of probate made subsequent to such payment was in evidence to the effect that Christina J. Anderson was not legally married to the deceased and that a decree was to be entered revoking the decree of June 8, 1916, wherein she was found to be the widow of the deceased and under which letters of administration upon the estate of the deceased were issued to her. No evidence was introduced tending to show that the deceased left next of kin.

The liability sought to be enforced was described in said chapter 448, § 1, in these words so far as here material: ‘Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than the subscriber to pay damages in respect thereof, the employee may at his option proceed either at law against that person to recover damages, or against the association for compensation under this act, but not against both, and if compensation be paid under this act, the association may enforce in the name of the employee, or in its own name and for its own benefit, the liability of such other person, and in case the association recovers a sum greater than that paid by the association to the employee four fifths of the excess shall be paid over to the employee.’

The plaintiff's cause of action therefor is the ‘liability of such other person’ for the death of the decedent. That cause of action is not at all the same as the original liability of the insurer. The amount recoverable bears no relation to the amount paid by the insurer or for which it may be liable. It is to be assessed upon a wholly different theory. Within specified limits the amount recoverable is to be assessed with reference to the degree of culpability of the defendant. The damages awarded may be greater or less than the amount paid by the insurer under the act. The right of the insurer under the statute does not rest on the principle of subrogation. It does not depend upon reimbursement. It is wholly the creature of the statute. The design of the statute is to enable the insurer, who has paid the compensation due under the act, to enforce for its own benefit against third persons negligently causing the death of the employee the rights which would have been available to the representatives of the deceased employee if they had elected to enforce those rights. The statute confers upon the insurer no privileges or immunities in the prosecution of such action beyond those open to the representatives of the deceased employee. The insurer stands no better than such representatives would stand if prosecuting the action in their own names for the benefit of those designated as beneficiaries under the statute. If they could not recover the insurer cannot recover. Turnquist v. Hannon, 219 Mass. 560, 107 N. E. 443; Bindbeutel v. L. D. Willcutt & Sons Co., 244 Mass. 195, 138 N. E. 239.

Where action, under statutes similar to the one invoked by the plaintiff, has been brought by the personal representatives to recover damages for the death of a decedent caused by the negligence of another, it has been held to be a condition precedent to recovery to show that the deceased left a widow or next of kin to whom the penalty when recovered may be paid. Daly v. New Jersey Steel & Iron Co., 155 Mass. 1, 5, 29 N. E. 507;Hodnett v. Boston & Albany Railroad, 156 Mass. 86, 30 N. E. 224;Tozier v. Haverhill & Amesbury Street Railway, 187 Mass. 179, 181, 72 N. E. 953;Oulighan v. Butler, 189 Mass. 287, 289, 75 N. E. 726;Bartley v. Boston & Northern Street Railway, 198 Mass. 163, 171, 83 N. E. 1093;Osterlind v. Hill, 263 Mass. 73, 75, 160 N. E. 301, 56 A. L. R. 1123. Compare McCarthy v. William H. Wood Lumber Co., 219 Mass. 566, 568, 569, 107 N. E. 439;Johnston v. Bay State Street Railway, 222 Mass. 583, 111 N. E. 391, L. R. A. 1918A, 650; Gorski's Case, 227 Mass. 456, 460, 461, 116 N. E. 811;Putnam v. Savage, 244 Mass. 83, 87, 88, 138 N. E. 808;DeMarco v. Pease, 253 Mass. 499, 508, 149 N. E. 208.

It has oftentimes been pointed out that the recovery under the statute is a penalty. It is not compensation for injury done. There was no such right of action at common law. The penalty is for the benefit of named persons. It must be paid ultimately to those beneficiaries. It is not imposed and the defendant is under no liability if there are no beneficiaries. Arruda v. Director General of Railroads, 251 Mass. 255, 147 N. E. 21.

It was proved at the trial that the appointment of the administratrix of the deceased employee on the ground that she was his widow had been revoked because of a finding by the court that she was not such widow. The earlier appointment if unrevoked would not have been open to contradiction and could not have been drawn in question in this action. McCooey v. New York, New Haven & Hartford Railroad, 182 Mass. 205, 65 N. E. 62. It was valid unless and until revoked. But that appointment had been revoked by the court having jurisdiction over that subject before the trial of the case at bar. It then stood as if never made so far as concerns its value as evidence of the existence of a widow of the deceased employee. It was no evidence of that fact. There is no evidence in the record that the deceased left a widow or next of kin. It follows that there was no basis for recovery under St. 1907, c. 375.

There is nothing contrary to this conclusion in the decision of this case when it was here as reported in 254 Mass. 359, 150 N. E. 230. Touching this aspect of the case, it there was held simply that the plaintiff might amend its declaration by substituting its own name for that of the widow as plaintiff and that a motion to dismiss because of the revocation of the appointment of the administratrix ought to be denied. That decision was sound and is so accepted. But it did not hold that the plaintiff was entitled to recover. The payments made by the insurer to the administratrix, before the revocation of her appointment protected it, were justified and constituted so far...