Holland v. Morley Button Co.

• Decision Date: 05 February 1929
• Parties: HOLLAND v. MORLEY BUTTON CO.
• Court: New Hampshire Supreme Court

145 A. 142

HOLLAND

v. MORLEY BUTTON CO.

Supreme Court of New Hampshire. Rockingham.

Feb. 5, 1929.

Transferred from Superior Court, Rockingham County; Young, Judge.

Proceeding under the Workmen's Compensation Act by Ellen M. Holland, administratrix of deceased employee, opposed by the Morley Button Company, employer. Case transferred from trial term on defendant's exception to award of compensation in favor of claimant. Exception overruled.

Petition for compensation under P. L. c. 178. The plaintiff's intestate died on October 7, 1919, from injuries received from the act of a third party, and arising out of and in the course of his employment for the defendant. In 1920 the plaintiff sued the third party under P. L. c. 302, § 9 et seq., and the action was settled in May, 1925, by a consent judgment for $2,000. In 1923 claim for compensation was made on the defendant. It denied liability. This proceeding was brought in September, 1925.

To the award of the full statutory limit of $3,000, the defendant excepted, claiming (1) that the judgment against the third party was a bar, or that, if it was not, the award should be reduced by the amount of the judgment, and (2) that the proceeding was not seasonably brought.

John L. Mitchell and Joseph D. Sullivan, both of Portsmouth, for plaintiff.

Gay Gleason, of Boston, Mass., Burt R. Cooper and Gardner S. Hall, both of Rochester, for defendant.

ALLEN, J. I. The petition was seasonably brought. The statute (P. L. c. 302, § 11), which provides that "if an action is not then [at death] pending, and has not already become barred by the statute of limitations, one may be brought for such cause at any time within two years after the death of the deceased party, and not afterwards," has only reference to "actions of tort for physical injuries to the person" given survival by section 9 of the chapter, and is exclusively a part of the legislation for the survival of common-law personal injury tort actions, and for the statutory tort of causing death. Whether the petition had to be brought within six years after the accrual of the claim, under the "general rule [that], courts of equity, equally with courts of law, are bound by the statute of limitations" (Wentworth v. Wentworth, 75 N. H. 547, 550, 78 A. 646, 648), it is unnecessary to determine. The petition was thus brought.

The proceeding is not to recover damages for wrong done, but to obtain compensation for loss sustained, regardless of any wrong. The liability is "a substitute for the common law action," and gives "a certain and sure remedy applicable to all cases of injury not due to his [the workman's] wilful misconduct." Mulhall v. Nashua Mfg. Co., SO N. H. 194, 199,115 A. 449, 453. The compensation act, providing for its enforcement in equity, was not enacted until long after the limitation statute, and it would stretch and strain both statutes to hold the former governed by the latter. So to do would be inconsistent with the liberal construction to be given the compensation act as here established as a settled policy of its construction, and would extend the scope of the limitation statute beyond both its express terms and its fair import.

The defendant's contention, that liability under the compensation act implies some wrong on the employer's part, the breach of which creates the liability, rests on a misconception of the nature of the liability. The employer is under a duty to compensate the workman for industrial injuries, and the liability is to perform the duty, which is not to avoid injury to the workman, but to compensate for loss to him. Breach of the duty does not lie in the injury done, but in failing to compensate for it. It is to meet some of the loss from injury, and not for the injury itself, that liability is imposed. "Compensation is not dependent upon any fault of the employer, but is awarded whenever the fortuitous event [of injury] overtakes the workman in the course of and out of his employment." Guay v. Brown Co., 83 N. H.—, 142 A. 697. Since the employer may be in no way to blame or have anything to do with the injury, the liability to compensate for it is in no usual sense tortious in character. Proceedings relating to it may be brought only in equity, and, at least with reference to the special limitation statute for actions for causing death, no tortious classification for it was intended. The statutes applies to torts as violations of legal rights which are not contractual in nature, and a liability not resulting from a tort, and being only a liability to pay money, is in no way a liability for tort. If, in questions of the extraterritorial effect of compensation acts, the character of the liability is classified as tortious, rather than contractual, the issue is really one relating to the effect of a foreign law on a domestic situation.

Any different conclusion would overrule Stacy v. F. M. Hoyt Shoe Co., 83 N. H. 281, 141 A. 467, in which it was held that a release of the employer, if given in settlement of any liability to pay compensation, rather than in discharge of any liability as a tort-feasor, did not bar an action against a third person for tort, resulting in the damages for some part of which the compensation was paid. The release there considered reserved neither expressly nor by implication any rights against others, and hence, under the rule of Carpenter v. W. H. McElwain Co., 78 N. H. 118, 97 A. 560, barred actions against others jointly liable with the defendant. As said in the Stacy Case (p. 287 of 83 N. H. [141 A. 4701): "If * * * the release discharged a claim of liability against the releasee for which the defendant would be jointly liable, the defendant would cease to be a stranger to the instrument, and would acquire the position of one 'claiming under it.'" In other words, the defendant was entitled to the benefit of the release according as it was given to settle a claim for tort or for compensation. Hence, the case definitely decided that the liability of an employer to pay compensation is not to be regarded as a liability for tort or on the same footing as such a liability.

II. The satisfaction of the judgment in the plaintiff's action against the third party did not bar her claim for compensation from the defendant here. By the compensation act "the only actions which are barred by the acceptance of compensation are actions against the employer." Stacy v. F. M. Hoyt Shoe Co., supra, 286 (141 A. 469). And the converse, that actions for tort against third parties do not bar claim for compensation, follows. As has already appeared, liability under the act is not tortious in character, and is not to be treated in the same way and as though it were. The liabilities for a third party's tort and to pay compensation are distinct and independent, and the defendant here was a stranger to the judgment.

III. There remains the inquiry if the satisfaction of the judgment was a partial satisfaction of the claim for compensation. The compensation acts in most jurisdictions provide for such a situation. But the act here is silent in regard thereto, and the question is therefore to be decided in the light of common law and equitable principles.

While the act bars duplication of payment by the employer for damage or loss on account of the same injury, it "concerns itself solely with mutual rights and liabilities based upon the relationship of master and servant" (Stacy v. Company, supra, 286 ), and neither in terms nor impliedly does it affect other relationships.

It may be pointed out that the party in fault for the workman's death has not injured the employer. The only liability for wrongfully causing death is under the statute, in whose benefits the employer has no share. Connecticut, etc., Co. v. Railroad, 25 Conn. 265, 65 Am. Dec. 571, Insurance Co. v. Brame, 95 U. S. 754, 24 L. Ed. 580. Even if it may be the proximate result of the wrong that the employer has to pay compensation, there is no liability, and the law gives him no rights against the wrongdoer. While authority is scanty, in the law of insurance, subrogation not contracted for in cases of death or accident is not given the insurer, as it is in the cases of fire and liability. Ætna, etc., Co. v. Parker, 30 Tex. Civ. App. 521, 72 S. W. 621, Gatzweiler v. Milwaukee, etc., Co., 136 Wis. 34, ...