Jordan v. Orcutt

• Decision Date: 29 June 1932
• Parties: JORDAN v. ORCUTT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

279 Mass. 413

181 N.E. 661

JORDAN

v.ORCUTT.

Supreme Judicial Court of Massachusetts, Essex.

June 29, 1932.

Report from Superior Court, Essex County; Frederick J. Macleod, Judge.

Action by Edmund L. Jordan against Wallace L. Orcutt, wherein a verdict was directed for defendant. On report.

Verdict set aside, and new trial ordered.

Robert E. Burke and Edward E. Crawshaw, both of Newburyport, for plaintiff.

J. N. Clark, of Boston, for defendant.

WAIT, J.

The essential question in this case is whether an insurer who has paid compensation to an injured employee under our Workmen's Compensation Act, G. L. c. 152, is entitled by virtue of section 15 of that act, as it stood in 1927 when the accident occurred, to bring an action against a physician for alleged negligence in the treatment of the injury, where it does not appear that the compensation actually paid has been affected by consideration of additional pain and suffering due to that treatment. Other questions involved are: Can the insurer, proceeding in the name of the employee, institute an action at law which the nominal plaintiff could not institute were he the real plaintiff? Can an action be permitted where as a result of its successful prosecution an employee becomes entitled to receive four fifths of an amount which he could not recover by a suit in his own name? Can a physician escape suit to decide whether negligence on his part has caused damage to a patient, because that patient has been paid compensation under G. L. c. 152 and the physician's negligence may have aggravated the injury on which the claim for compensation was based? The answers must be sought in the interpretation to be given to G. L. c. 152, § 15. That section, so far as here material, reads as follows: ‘Where the injury for which compensation is payable was caused under circumstances creating a legal liability in some person other than the insured to pay damages in respect thereof, the employee may at his option proceed either at law against that person to recover damages or against the insurer for compensation under this chapter, but not against both; and if compensation be paid under this chapter, the insurer may enforce, in the name of the employee or in its own name and for its own benefit, the liability of such other person; and in case the insurer recovers a sum greater than that paid by it to the employee, four fifths of the excess shall be paid to the employee.’

The right to compensation secured to an injured employee by G. L. c. 152 is not based upon negligence. His right is based upon injury arising out of and received in the course of his employment. That injury may or may not have arisen out of some one's negligence. If it arose out of the negligence of his employer, or if no negligence entered into it, the employee who has not given notice under G. L. c. 152, § 24 can obtain redress only through the processes of the Workmen's Compensation Act. In general the employee who proceeds under the act is stripped of rights of recovery in tort for negligence. Under section 23 the filing of a claim or the receipt of compensation from an insurer is a release to his employer of all claims or demands at law, if any, arising from the injury. Where, however, the injury arises out of the negligence of some person other than the employer, a right...