McDonald v. Employers' Liab. Assur. Corp.

• Decision Date: 25 October 1934
• Parties: McDONALD v. EMPLOYERS' LIABILITY ASSUR. CORPORATION, Limited.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

288 Mass. 170

192 N.E. 608

McDONALD

v.EMPLOYERS' LIABILITY ASSUR. CORPORATION, Limited.

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 25, 1934.

Exceptions from Superior Court, Suffolk County; D. F. Dillon, Judge.

Action of tort by Walter H. McDonald against the Employers' Liability Assurance Corporation, Limited. Directed verdict for defendant, and plaintiff brings exceptions.

Exceptions overruled.

E. R. Greenhood, of Boston, for plaintiff.

R. B. Coulter, of Boston, for defendant.

FIELD, Justice.

This is an action of tort to recover damages for the loss by the plaintiff of the sight of his right eye, alleged to have been caused by the negligence of the defendant's at the close of the plaintiff's case, moved for a directed verdict and a verdict was directed. The case is here on the plaintiff's exceptions to the direction of a verdict for the defendant and to the admission and exclusion of evidence.

The plaintiff testified that on December 24, 1927, while working for his employer he ‘received a foreign body in his right eye,’ that the eye became inflamed, and that he reported the injury to his employer, who sent him to the defendant's clinic, or hospital, where his eye was treated. There was testimony to the nature of the treatment, includingtreatment on January 3, 1928, which the plaintiff contends was negligent. It was agreed by the parties that the plaintiff was an employee of the Otis Elevator Company at the time he sustained the injury and that this employer was insured under the Workmen's Compensation Law. And it is not disputed that the defendant was the insurer. The plaintiff so testified and the papers introduced in evidence so indicate.

The plaintiff testified further that he continued to work until January 28, 1928, when he stopped work because of the condition of his eye, applied for workmen's compensation and signed an ‘Agreement in Regard to Compensation,’ and that he stayed out of work until some time in May when he returned to work and, at that time, signed a ‘Settlement Receipt.’ The agreement in regard to compensation, which was in evidence, provided for the payment of weekly compensation by the defendant on the basis of total disability beginning January 30, 1928. It described the nature of the injury as ‘eye injury,’ and the cause thereof, ‘Foreign body in eye,’ and contained the statement that it ‘is hereby agreed that I have suffered no permanent loss of use of any member of my body as a result of above accident, except as above stated.’ The ‘Settlement Receipt,’ which also was in evidence, acknowledged the receipt by the plaintiff from the defendant of a sum of money in settlement of compensation under the Workmen's Compensation Law for all injuries received by the plaintiff on or about December 24, 1927, while in the employ of the Otis Elevator Company, subject to approval and review by the Industrial Accident Board, and stated that the plaintiff agreed that he had ‘suffered no permanent loss of use of any member of my body as a result of the above accident,’ and that his disability ended May 7, 1928. There was also introduced in evidence an ‘Employee's Agreement to Discontinuance of Compensation,’ signed by the plaintiff, in which he agreed that the insurance company might stop his compensation as of May 7, 1928, and in which it was stated that he did this ‘with the understanding between us that this is not a settlement of my case and shall not prevent me from claiming further compensation if I hereafter believe I am entitled to it.’ A witness for the plaintiff testified that the plaintiff was paid compensation ‘from the date of his disability until the date that he signed off.’ The plaintiff, however, testified ‘that he never received or claimed specific compensation in the proceedings before the * * * Board, though he received a letter from the * * * Board informing him of such right,’ and it was agreed by the parties that no specific compensation was paid to the plaintiff for the loss of the sight of his eye. See G. L. (Ter. Ed.) c. 152, § 36(f).

1. It was not reversible error to direct a verdict for the defendant.

It is apparent that this action was brought by the employee, as plaintiff, for his own benefit. He cannot maintain it since, according to his testimony by which he is bound, he has elected to proceed against the defendant, as insurer, for compensation under the Workmen's Compensation Law.

G. L. (Ter. Ed.) c. 152, § 15, provides in part that where ‘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.’ Though, so far as appears, the agreements were not approved by the department of industrial accidents (see G. L. [Ter. Ed.] c. 152, § 6), the plaintiff's conduct, as shown by his testimony, amounted to an exercise of his option in favor of proceeding against the insurer for compensation rather than proceeding at law against ‘some person other than the insured’ to recover damages in respect of a legal liability not created under the Workmen's Compensation Law. Compare Cripp's Case, 216 Mass. 586, 104 N. E. 565, Ann. Cas. 1915B, 828;Barry v. Bay State Street Railway Co., 222 Mass. 366, 371, 110 N. E. 1031;Wahlberg v. Bowen, 229 Mass. 335, 338, 118 N. E. 645;Tocci's Case, 269 Mass. 221, 223-224, 168 N. E. 744, 67 A. L. R. 236. It is not material, as bearing upon the exercise of this option, that the plaintiff's claim under that law has not been finally settled, or that he has not claimed or received specific compensation for the loss of sight. An employee cannot by claiming only a part of the compensation to which he is entitled reserve a right to proceed at law for damages. The exercise of his option in favor of proceeding for compensation precluded him from maintaining an action at law for damages based on any injury for which compensation could be had under the Workmen's Compensation Law. And compensation for injury arising from aggravation, through negligent treatment, of an original compensable injury is within this principle. Vatalaro v. Thomas, 262 Mass. 383, 160 N. E. 269;Jordan v. Orcutt, 279 Mass. 413, 416, 181 N. E. 661. The evidence in its aspect most favorable to the plaintiff did not warrant a finding that the plaintiff sustained any injury from the negligence of an agent of the defendant for which compensation could not have been had under the Workmen's Compensation Law.

The plaintiff, however, contends that the provision of G. L. (Ter. Ed.) c. 152, § 15, above quoted, and the principles above stated, do not apply to the present case where the employee is proceeding at law against the insurer for negligence. But there is...