King v. Viscoloid Co.
| Decision Date | 01 December 1914 |
| Citation | 219 Mass. 420,106 N.E. 988 |
| Parties | KING v. VISCOLOID CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Thos Casey, of Fitchburg, for plaintiff.
Currier Young & Pillsbury and Philip G. Carleton, all of Boston, for defendant.
The defendant concedes that upon the agreed facts and the inferences to be drawn therefrom the plaintiff had a good cause of action, and is entitled to recover for the loss caused to herself by the injury to her son, unless her right of action is barred by the provisions of the workmen's compensation act. St. 1911, c. 751.
It was undoubtedly the intention of the Legislature by that statute to take away from employés who should become subject to its provisions all other remedies that they had against their employers for injuries happening in the course of their employment and arising therefrom, and to substitute for such remedies the wider right of compensation given by the act. But we find in the act nothing which goes further than this for the protection of the employer. At common law, when this boy was injured, he gained a right of action for himself; and the present plaintiff, his mother, gained another and different right of action for the damage caused to her. The former action, that of the boy himself, has been taken away and a different remedy has been substituted therefor; but this does not of itself affect the second right of action that of the boy's parent. That the boy received full compensation for the injury to himself does not affect her right to recover for her own loss. Wilton v. Middlesex R. R., 125 Mass. 130.
The parent's right of action was not in any just sense consequential upon that of the son. It was independent of his right, and was based upon her personal loss. His action was for the pain and suffering caused by the injury and for the loss of wages or diminution of earning capacity caused thereby and coming after he should have attained full age. Her action was for the expense to which she had been put by reason of his injury and for the loss of his services or wages during his minority. It is true that the right of action in each case rested upon the same foundation--that is, the fact that he had been injured by the negligence of the defendant. Under the provisions of the act (St. 1911, c. 751, pt. 1, § 5), he had waived his right of action; but he had not waived, by his own mere act he could not waive, his parent's independent right. His waiver was by operation of law a discharge of his own right; but no discharge of his right could discharge or take away the right which had become vested in her just as the election of an employé under part 3, § 15, of the act to hold a third party instead of the insurer to compensate him for an injury does not take away his widow's right to hold the insurer for the employé's subsequent death caused by the same injury. Cripps' Case, 216 Mass. 586, 104 N.E. 565.
The express provision in the act that his right of action is waived or discharged by his failure to give a notice that he claimed his common-law rights is, by recognized canons of statutory construction, an indication that it was not intended to take away the right of any one but himself. The Legislature have stated the consequence that is to follow the failure to give the statutory notice; how can the court say that further consequences shall follow, by taking away the right of a third person not mentioned in the act? Dubuque v. Dubuque, 7 Iowa, 262; Page v. Bartlett, 101 Ala. 193, 13 So. 768; Perkins v. Thornburgh, 10 Cal. 189; Oxford Iron Co. v. Salafter, 18 Fed. Cas. No. 10,637.
The provision that the insurer shall pay a part of the medical expenses made necessary by injury to an employé (part 2, § 5) does not take away by implication the parent's remedy in a case like this. Doubtless the parent could not recover for expenses which he had not been called on to incur and in fact had not incurred, but it is not perceived how this could have any greater effect than to reduce somewhat the amount of damages that might be recoverable.
This is not a case in which the plaintiff has taken any benefit under the act, which it might be contended would estop her from making any claim inconsistent with the effect of that act upon the employer. The insurer's payment of the medical and hospital bills was not, so far as appears or is suggested, made at her request, nor did it relieve her from any liability, for it does not appear that she had become liable for these bills. Our decision does not apply to cases where the parent has received any benefit or compensation under the act. Nor do we decide that the plaintiff could recover for medical expenses which had been paid by the insurer, or for her son's services, so far as she had received, or was entitled and able to obtain for such services the amounts paid therefor to him through his next friend by the insurer. These questions are not presented, for the amount of damages has been agreed upon.
It is probably true that the Legislature in passing this act did not have in mind such a case as here is presented. It did occur to the Legislature of Rhode Island, and is provided for in the statute of that state....
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