in re Cripp

• Decision Date: 27 February 1914
• Parties: In re CRIPP; In re AETNA LIFE INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 586

104 N.E. 565

In re CRIPP; In re AETNA LIFE INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1914

COUNSEL

William H. Vincent, of Boston, for appellant.

James E. McConnell, of Boston, for appellee.

OPINION

BRALEY J.

The exceptions must be dismissed, as the insurer's appeal from the decree below is the only method by which questions of law arising under St. 1911, c. 751, can be brought to this court. McNicol's Case, 215 Mass. 497, 102 N.E. 697. The deceased workman while in the course of his employment and about his employer's business driving a truck in the public streets was struck by coming into collision with a car of a street railway company, receiving injuries which ultimately caused his death, although after the accident he performed his accustomed work for quite a period. The company having obtained on the afternoon of the day of the accident a release under seal from all liability the insurer contends that the widow is not entitled to compensation under St. 1911, c. 751, as amended by St. 1912 c. 571. By section 15, pt. 3, the statute provides that '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 employé 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 employé, or in its own name and for its own benefit, the liability of such other person.' The employé by his election to take damages, even if received without suit, and under the condition that the cause of action must be released, would exercise the option given by the statute. It would be too technical and refined a construction to treat the wording of the act as referring solely to an action for personal injuries, and if the employé had asked for compensation the settlement with the company, if not set aside, would have barred the claim. Page v. Burtwell, [1908] 2 K. B. 758; Powell v. Main Colliery Co., [1900] A. C. 366.

Prior to the present statute the right of the widow to damages for the death of her husband by wrongful act to be recovered for her own benefit in an action of tort by an administrator, and assessed within a minimum and maximum limit, according to the degree of culpability of the wrongdoer, or his servants or agents had been conferred by our laws. Brown v. Thayer, 212 Mass. 392, 397, 398, 99 N.E. 237, and statutes and cases there cited. But the amount recovered has been held to be in substance a penalty, forming no part of the assets of his estate and liability for which the intestate could not release. St. 1911, c. 635, § 1; Doyle v. Fitchburg Railroad, 162 Mass. 66, 71, 37 N.E. 770, 25 L. R. A. 157, 44 Am. St. Rep. 335; Clare v. New York & New England Railroad, 172 Mass. 211, 51 N.E. 1083; Smith v. Thomson-Houston Electric Co., 188 Mass. 371, 376, 76 N.E. 664; Jones v. Boston & Northern Street Railway, 205 Mass. 108, 109, 90 N.E. 1152. St. 1911, c. 751, is not penal, but is based on the theory of compensation. Primarily its object is to provide, in place of wages which he can no longer earn, the means of subsistence for the employé injured without 'serious and willful misconduct' on his part, if he survives, or for the widow, and other dependents, if death ensues either with, or without, conscious suffering. The...