Gordon Grenier v. Alta Crest Farms, Inc.,

• Decision Date: 04 May 1948
• Parties: GORDON GRENIER v. ALTA CREST FARMS, INC., ET AL
• Court: Vermont Supreme Court

58 A.2d 884

115 Vt. 324

GORDON GRENIER v. ALTA CREST FARMS, INC., ET AL

Supreme Court of Vermont

May 4, 1948

Special Term at Rutland, November, 1947.

Reargued at the February Term, 1948.

Workmen's Compensation.

1. For a workman to recover against his employer at common law for injury by accident arising out of his employment it must be alleged and proved that the employer's negligence was the sole cause of the injuries.

2. Negligence is not a factor in the right of an employee to receive compensation under the Vermont Workmen's Compensation Act.

3. Kelley v. Hoosac Lumber Co., 96 Vt 153, 118 A 520 reversed.

4. The right given to an employee under the Workmen's Compensation Act is a right created by statute and is not a right existing at common law.

5. When an employer and employee elect to come within the provisions of the Massachusetts Workmen's Compensation Act and the insurer voluntarily assumes the duty of paying compensation to the employees of the employer in accordance with the provision therein contained, all are bound by its terms.

6. While the Massachusetts Workmen's Compensation Act gives a right to compensation to an employee who comes within its terms, it also provides a specific and exclusive remedy for the enforcement of that right before a special tribunal created for such purpose.

7. Under the Massachusetts Workmen's Compensation Act, if an employee seeks the benefits given him by the statute he is bound to recognize and perform the obligations thereby placed upon him; such right is limited and can be enforced only by following the procedure given by the statute which created such right; the remedy is an integral part of the right given and the latter has no existence separate and apart from the former.

APPEAL FROM decision of Commissioner of Industrial Relations Chittenden County, Howard E. Armstrong, Commissioner dismissing plaintiff's petition.

The order of the commissioner of industrial relations dismissing the petition of the employee for lack of jurisdiction is affirmed. To be certified to the commissioner of industrial relations.

Black & Wilson for the plaintiff.

McNamara & Larrow for the defendant.

Present: MOULTON, C. J., BUTTLES, STURTEVANT and JEFFORDS, JJ., and CLEARY, Supr. J.

OPINION

STURTEVANT

Gordon Grenier, hereinafter called the employee, brings this case here on appeal from a decision of the commissioner of industrial relations, hereinafter called the commissioner. The employee filed a petition with the commissioner, seeking an award under the Workmen's Compensation Act of Massachusetts, that petition having been filed in accordance with the provisions of P. L. 6507 which states as follows.

"If a workman who is hired outside of this state is injured while engaged in his employer's business and is entitled to compensation for such injury under the law of the state where he was hired, he shall be entitled to enforce against his employer his rights in this state, if his rights are such that they can be reasonably determined and dealt with by the commissioner and the court of this state".

The commissioner dismissed the petition on the ground that he was without jurisdiction to entertain it.

While the employee claims that his petition comes within the provisions of P. L. 6507, the insurer contends that the right which the employee is here seeking to enforce is a right created by the Massachusetts Compensation Act which also provides for a special and exclusive method of enforcement of such right before a special tribunal created for the specific purpose of dealing with the rights of employees, so created.

As will hereinafter appear, an examination of the Massachusetts act shows that the right to compensation there given to an employee is the same in character as the right given an employee under the provisions of our compensation act. For this reason, our attention is directed to Kelley v. Hoosac Lumber Co. et al, 96 Vt. 153, 158, 159, 118 A. 520, where this Court held that the right to compensation given an employee by the terms of our act is a right existing at common law and not a right created by statute. However, the insurer contends that the holding in the Kelley case should not be applied to the case at bar for two reasons. First, that holding is not good law and is out of line with the greater, if not entire, weight of authority, and secondly, the courts of Massachusetts have repeatedly held that the right given an employee under their compensation act is a right created by statute, and is to be enforced by a special tribunal also created by that statute, and only in the exclusive manner as therein provided. There is but one question for our determination, namely, does P. L. 6507 give to the commissioner jurisdiction to entertain the petition filed with him by the employee in the case at bar? The hearing before the commissioner was on an agreed statement of facts and concessions made by the parties. From these appear the following material facts.

On or about August 28, 1940, the employee moved from Vermont where he was then residing, to the commonwealth of Massachusetts. He entered the employ of the defendant, Alta Crest Farms, Inc., hereinafter called the employer, about May 2, 1941, under a contract made in Massachusetts. The employer is engaged in the business of farming, has never operated or maintained a place of business in Vermont and was not served with process in this State in the case at bar. At all times here material, the employer has been under the Workmen's Compensation laws of Massachusetts and its liability to pay compensation to its workmen has been carried by the defendant, Liberty Mutual Insurance Company, hereinafter called the insurer. On July 26, 1941, the employee was seriously injured by accident arising out of and in the course of his employment and immediately became totally disabled and the insurer made payments to the employee in accordance with the compensation law of that state paying $ 16.13 per week until a total sum of $ 520.90 had been paid. The rights of the parties are controlled by the Workmen's Compensation law of Massachusetts and the commissioner may take judicial notice of the laws and decisions of that state in determining the questions in the case at bar. The employee returned to Swanton, Vermont, shortly after his injury where he now resides and where he has continued his residence since his return. He was in Massachusetts a short time in 1946 and also served in the late war. The insurer and employee entered into negotiations looking toward a settlement of the latter's claim for further compensation but as no settlement was reached, the employee filed a request for hearing in accordance with the Massachusetts law, in July, 1946, and a date was set for hearing but before the hearing date arrived, the case was continued indefinitely at the request of the employee and that case is now pending there. No final settlement of the employee's claim has ever been made.

We first consider the insurer's contention that the employee's right which he is here seeking to enforce is a right created by the Massachusetts Compensation Act, G. L Mass. Chap. 152 as amended, and not a right existing at common law in accordance with the holding in the Kelley case, supra, 96 Vt. 153, 118 A. 520. § 26 of the Massachusetts Compensation Act, G. L. Mass., Chap. 152, in so far as here material, states as follows: "If an employee who has not given notice of his claim of common law rights of action under section twenty-four, or who has given such notice and has waived the same, receives a personal injury arising out of and in the course of his employment,...., he shall be paid compensation by the insurer, as hereinafter provided, if his employer is an insured person at the time of the injury;.... " The right of an employee given by the Vermont Compensation Act as stated in P. L. 6504 is as follows: "If a workman receives a personal injury by accident arising out of and in the course of his employment by an employer subject to this chapter, his employer or the insurance carrier shall pay compensation in the amounts and to the persons hereinafter specified.... " P. L. 6498 provides for election by employer or employee as to whether they will come under the act. In case it is agreed that the parties shall come under the act this section states as follows: "Such agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in this chapter and shall bind the employee, himself,... as well as the employer,... " P. L. 6499 provides that in all contracts of employment made subsequent to July 1, 1915, the parties shall be deemed to have elected to come under the provisions of this act, unless the contract contains a written statement that such is not the fact, or unless, before the employee shall have received an injury by accident,...