Gordon v. Amoskeag Mfg. Co.

• Decision Date: 07 February 1928
• Citation: 140 A. 704
• Parties: GORDON v. AMOSKEAG MFG. CO.
• Court: New Hampshire Supreme Court

140 A. 704

GORDON

v. AMOSKEAG MFG. CO.

Supreme Court of New Hampshire. Hillsborough.

Feb. 7, 1928.

Suit by James Scott Gordon against the Amoskeag Manufacturing Company. Plaintiff's bill was dismissed, and he brings exceptions. Case transferred. Exceptions sustained.

Bill in equity, to recover compensation under Laws 1911, c 163 (P. L. c. 178), for an injury sustained by the plaintiff while in the defendant's employ. The accident occurred March 27, 1925. During the two following months the plaintiff accepted payments under the Workmen's Compensation Act amounting to $60. On September 3, 1926, he brought an action at common law against the defendant to recover for the same injury. The action was dismissed because the plaintiff had availed himself of the provisions of the act. The present proceedings were instituted March 31, 1927. The defendant moved to dismiss the bill because the plaintiff had brought the abovementioned action. The motion was granted subject to the plaintiffs exception.

Transferred by OAKES, J.

John J. Sheehan, Doyle & Doyle, and Paul J. Doyle, all of Manchester, for plaintiff.

Warren, Howe & Wilson, and De Witt C. Howe, of Manchester, for defendant.

MARBLE, J. Neither employer nor employee is required to accept the provisions of the Workmen's Compensation Act. But employers who fail to file their acceptance with the Commissioner of Labor are denied certain common-law defenses. Boody v. K. & C. Mfg. Co., 77 N. H. 208, 90 A. 859, L. R. A. 1916A, 10, Ann. Cas. 1914D, 1280. And an injured workman who has elected to receive compensation under the act is compelled to abide by such election. Sullivan, etc., Co. v. Stowell, 80 N. H. 158, 114 A. 873. If he seeks to recover for his injury at common law, he is barred from the benefits of the statute (Strong v. N. H. Box Co., 82 N. H. 221, 131 A. 688); and if he has availed himself of the statute by accepting compensation thereunder, he is barred from recovery at common law (Davis v. Cummings Const. Co., 82 N. H. 87, 129 A. 729). "After election of either remedy the alternative remedy is not open to him." Watts v. Derry Shoe Co., 79 N. H. 299, 109 A. 837.

That part of the statute material to the present controversy is as follows:

"The right of action for damages caused by any such injury, at common law, * * * shall not be affected by this act, but in case the injured workman * * * shall avail himself of this act * * * by accepting any compensation hereunder * * * he shall be barred from recovery in every action at common law * * * on account of the same injury. In case after such injury the workman * * * shall commence any action at common law * * * against the employer therefor, he shall be barred from all benefit of this act in regard thereto." Laws 1911, c. 163, § 4.

Assuming, as the defendant contends, that these provisions were designed primarily to induce employers to accept the act, the statute is nevertheless a remedial one, "enacted for the benefit and protection of the mill and factory operatives of the state," and should, so far as possible, be liberally construed to accomplish that purpose. Barber v. Jones Shoe Co., 79 N. H. 311, 313, 108 A. 690; Martel v. White Mills, 79 N. H. 439, 441, 111 A. 237; Mulhall v. Nashua Company, 80 N. H. 194, 199, 115 A. 449. On the other hand, the benefits of the statute are not extended to workmen whose injuries have been caused by their own serious or willful misconduct (Laws 1911, c. 163, § 3; P. L. c. 178, § 9), nor does a liberal construction of section 4 necessarily demand that a dishonest plain-till be accorded all the rights of an honest one. In short, neither of the extreme views advanced by counsel appears to us to be tenable.

To adopt the construction urged by the defendant would be to deny the workman a reasonable opportunity to contest the disputed question of whether he has made an election. That question does not arise under the compensation features of the act (Sullivan, etc., Co. v. Stowell, supra), and however honest a workman might be in the belief that his conduct had not indicated an election, he could not litigate his rights in an action at law without assuming the double risk of having his suit peremptorily dismissed because he had availed himself of the provisions of the statute and of forfeiting all rights under the statute because he had brought that particular action at law. The imposition of so drastic a penalty will not be inferred except from clear and unequivocal language. Blake v. Orford, 64 N. H. 299, 302, 10 A. 117; Holbrook v. Faulkner, 55 N. H. 311, 316.

Surely the Legislature could not have intended that a right made exclusive through election should, in all cases and under all circumstances, be irretrievably lost by a subsequent endeavor to assert a nonexistent right. The marginal title of section 4 is, "Employee given choice of remedies." Obviously the scope of the section is limited to an enumeration of those acts which constitute a legal choice, and the common-law action therein referred to would appear to be an action brought in furtherance of that choice. The statute contemplates a situation where the selection of remedies is still open. When once a valid election has been made, there is no further right of election. "The assertion of one remedy involves a negation of the other." Behr v. Soth, 170 Minn. 278, 286, 212 N. W. 461, 464. Consequently a judicial determination that the plaintiff has elected to accept compensation under the act is at the same time a determination that he has not elected to retain his common-law rights. His attempt to exercise those rights is therefore nugatory; the abortive action is dismissed, and he is left to his original choice. The fact that he is entitled to have a jury decide whether he has or has not made that choice (Sullivan, etc., Co. v. Stowell, supra) does not alter the essential nature of the defense, and an affirmative finding operates as an absolute bar to the action. Davis v. Cummings Const. Co., 82 N. H. 87, 91, 129 A. 729.

This conclusion is in harmony with the general doctrine of election of remedies. For the rule that the adoption of one of two inconsistent remedies precludes pursuit of the other necessarily assumes the existence of a legal right to proceed in either way. Where the plaintiff has mistaken his remedy no estoppel arises. Noyes v. Edgerly, 71 N. H. 500, 504, 53 A. 311, and cases cited; Sanborn v. Boston & M. R. R., 76 N. H. 65, 67, 79 A. 642; Bolger v. Boston & M. R. R., 82 N. H. 372, 374, 134 A. 524.

If one of the purposes of the statute is to protect the employer from vexatious litigation, that purpose would seem to be sufficiently attained by compelling the...