Hunt v. Bank Line
| Decision Date | 15 October 1929 |
| Docket Number | No. 2854.,2854. |
| Citation | 35 F.2d 136 |
| Parties | HUNT v. BANK LINE, Limited, et al. |
| Court | U.S. Court of Appeals — Fourth Circuit |
George T. Mister, of Baltimore, Md., for appellant.
Janney, Ober, Slingluff & Williams, Robert W. Williams, Robert Stinson, William L. Marbury, and Fendall Marbury, all of Baltimore, Md., for appellees.
Before PARKER, and NORTHCOTT, Circuit Judges, and GRONER, District Judge.
This is an appeal from a decree dismissing a libel on the ground that it does not state a cause of action. The question involved is the right of an injured stevedore, who has accepted compensation for his injury under the Longshoremen's and Harbor Workers' Compensation Act of March 4, 1927, 44 Stat. 1424, 33 USCA § 901 et seq., to sue a third person for damages on account of his injury where the employer refuses to bring suit. From the decree denying the right, libelant appealed.
The facts alleged in the libel are as follows: Libelant was a stevedore employed by the Atlantic Coast Shipping Company. He was injured while unloading a steamship owned and operated by the Bank Line, Limited, and A. Weir & Co., as a result of the negligence of the vessel. His injury was reported to the United States Employees' Compensation Commission by his employer, and he has since been paid compensation in accordance with the provisions of the Longshoremen's and Harbor Workers' Compensation Act. He has requested his employer to bring suit for damages, under section 33 of that act (33 USCA § 933), against the owner of the vessel; but the employer has refused to do so. He alleges that he has a substantial interest in having such suit instituted, and that the employer will not institute same, because its insurance carrier is also the insurance carrier of the vessel.
The section of the act upon which libelant relies provides that, where some person other than the employer is liable in damages for the injury to the employee, acceptance of compensation by the employee shall operate as an assignment to the employer of the employee's right to recover damages against such third person, and that, in case of recovery thereunder, the employer, after retaining an amount sufficient to reimburse him for the compensation and benefits paid to the employee, together with the expenses incurred in the proceeding, shall pay any excess to the employee. See subsection (b) and (e) of section 33, 33 USCA § 933(b) (e). Libelant's position is that the cause of action assigned by operation of the act to the employer is held by the latter in trust for the benefit of the employee, as well as for his own benefit, and that, upon failure of the employer to sue, the employee may bring the suit himself for the benefit of both, joining the employer as a party.
While this position of libelant might have some force, if subsection (b) and (e) of section 33 were considered alone and without relation to the other provisions of the section, we think it clearly erroneous when these other provisions are considered. In the first place, it is clearly provided in subsection (a) of section 33, 33 USCA § 933(a), that the employee shall elect between his right to receive compensation and his right to proceed against such third person; and this requirement to elect is absolutely inconsistent with the right both to receive compensation and to proceed or have his employer proceed on the cause of action against the third person. Subsection (a) is as follows: "(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." (Italics ours.)
In the second place, the act clearly contemplates that, if the employee elects to receive compensation, he is to have no further interest in or control over the suit. This is shown by subsection (d), which is as follows: "(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." (Italics ours.) The authority on the part of the employer to compromise without instituting suit negatives any right on the part of the employee to have suit instituted. And it is to be noted, also, that the employee is given no power to control or veto the compromise.
Under subsection (g) provision is made for compromise by the employee in cases where he sues the third person under the provision of subsection (f), to which we shall later refer; and it is expressly provided that the employer must have given his written consent to a compromise for less than the amount of the compensation provided by the act, if he is to be held liable thereunder for the difference. We think that this control over the compromise given the employer under subsection (g), where he is interested in the suit, is in striking contrast with the lack of any control given the employee by subsection (d), and clearly indicates that it was not contemplated that the employee should have any further interest in the cause of action assigned to the employer under subsection (b).
In the third place, the statute expressly provides the manner in which the employee may have the benefit of the compensation provided in the act and at the same time enforce the liability of the third party. If he desires to do this, he must notify the commission of his election to proceed against the third person and institute proceedings within the time provided by the act. If he does this, and fails to recover against the third person as much as the compensation provided by the act, the difference is paid him as compensation by his employer. Subsection (f) of section 33, 33 USCA § 933 (f), provides:
"(f) If the person entitled to compensation or the representative elects to recover damages against such third person and notifies the commission of his election and institutes proceedings within the period prescribed in section 913 of this chapter, the employer shall be required to pay as compensation under this chapter a sum equal to the excess of the amount which the commission determines is payable on account of such injury or death over the amount recovered against such third person."
When all of these sections are considered together,...
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