McDonnell v. Berkshire Street Railway Co.

• Citation: 243 Mass. 94
• Parties: ELLEN McDONNELL, administratrix, v. BERKSHIRE STREET RAILWAY COMPANY.
• Decision Date: 27 November 1922
• Court: United States State Supreme Judicial Court of Massachusetts

243 Mass. 94

ELLEN McDONNELL, administratrix, v. BERKSHIRE STREET RAILWAY COMPANY.

Supreme Judicial Court of Massachusetts, Berkshire.

November 27, 1922

September 19, 1922.

Present: RUGG, C.

J., BRALEY, PIERCE CARROLL, & JENNEY, JJ.

Negligence Employer's liability, Causing death, Effect of workmen's compensation act. Workmen's Compensation Act.

It is only rights at common law of an employee, his personal representative next of kin or dependents against his employer which, upon the employer becoming a subscriber under the provisions of the workmen's compensation act, can be retained by a notice given under

G.L.c. 152, Section 24.

An employer who is insured under the provisions of the workmen's compensation aet is relieved by G.L.c. 152, Section 68, of liability under G.L.c. 229, Section 7, for the negligent causing of the death of an employee irrespective of whether the notice by the employee to the employer, described in G.L.c. 152, Section 24, was given and whether the death of the employee occurred within thirty days after the employer gave his employees the notice of the insurance required by the act.

TORT, under G.L.c 229, Section 7, for negligently causing the death of John J. McDonnell, the plaintiff's intestate, while in the defendant's employ. Writ dated March 12, 1921.

In the Superior Court, the action was tried before Burns, J. Material evidence is described in the opinion. At the close of the plaintiff's evidence, on motion of the defendant, a verdict was ordered for the defendant; and the plaintiff alleged exceptions.

H. C. Joyner, for the plaintiff.

F. M. Myers & F.

H. Cande, for the defendant, submitted a brief.

RUGG, C.J. This is an action of tort brought under G.L.c. 229, Section 7, to recover damages for the death of the husband of the plaintiff, who after conscious suffering died on August 18 1920, from injuries received on that day while working as motorman for the defendant. The defendant was insured under the workmen's compensation act, now embodied in G.L.c. 152, by policy dated and issued on August 16, 1920, and had given the notice thereof to its employees as required by the act. The deceased bad been in the employ of the defendant for about twenty-two years and had not given the defendant notice that he should claim his rights at common law.

The remedies provided by the workmen's compensation act are exclusive of all other relief in cases within its provisions. White v. E. T. Slattery Co. 236 Mass. 28 . Zygmuntowicz v American Steel & Wire Co. of New Jersey, 240 Mass. 421 . The purpose of the act is to substitute for common law and other statutory remedies previously existing a kind of accident insurance in all instances to which it is applicable. The act provides in Sections 21 and 22 for notice to be given by the employer to his employee under all the circumstances likely to arise, but by the latter section, "In case of the renewal of the policy no notice shall be required." The record does not show whether the policy here in force was renewal insurance, but it is assumed in favor of the plaintiff that it was an original insurance. By Section 24 of the act an employee of an insured employer shall be held to have waived his common law rights unless a notice claiming such rights shall be given at the time of employment or within thirty days after notice of insurance by his employer. That section, however, has no relation to the present action, which is not at common law but is created exclusively by statute. It is only rights at common law which can be retained by the employee by giving notice to that end, and not rights established under the employers' liability act or other modifications of the common law. There is no right at common law to recover damages for the death of a human being. Such actions are exclusively the creature of statute. Duggan v. Bay State Street Railway,...