Mingo v. R.I. Co.

• Decision Date: 01 July 1918
• Docket Number: No. 5085.,5085.
• Parties: MINGO v. RHODE ISLAND CO.
• Court: Rhode Island Supreme Court

103 A. 965

41 R.I. 423

MINGO

v. RHODE ISLAND CO.

No. 5085.

Supreme Court of Rhode Island.

July 1, 1918.

Baker and Vincent, JJ., dissenting.

Exceptions from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

Action by John Mingo against the Rhode Island Company. Demurrer to replications sustained, and plaintiff excepts. Exception to ruling sustaining demurrer to first replication overruled. Exceptions to rulings sustaining demurrers to other replications sustained, and case remitted for further proceedings.

A. B. Crafts, of Providence, for plaintiff. Clifford Whipple and Earl A. Sweeney, both of Providence, for defendant.

STEARNS, J. This is an action at law to recover damages for negligence. The plaintiff, a truck driver in the employ of the Providence Coal Company, on the 16th day of August, 1916, was injured in a collision between his truck and a trolley car of the defendant caused, as he alleges, by the negligence of the defendant. The defendant pleaded the general issue, and in its second plea alleges that on September 27, 1916, the plaintiff and his employer entered into an agreement in accordance with the "Workmen's Compensation Act," whereby the said coal company agreed to pay the plaintiff a certain sum for medical aid, and also compensation at the rate of $5.84 per week during the period of total incapacity resulting from said injury; that this agreement was duly approved by a justice of the superior court on the 5th day of October, 1916, which agreement is now on file in the office of the clerk of said court and that said coal company paid to the plaintiff in accordance with the terms of the agreement the sum of $70.08 as compensation under the terms of the compensation act. To this plea the plaintiff filed several replications, to each of which the defendant demurred. The superior court sustained the demurrers, to which decision the plaintiff duly excepted, and the plaintiff now comes to this court by bill of exceptions.

The first replication does not refer to any agreement, but alleges a tender to the employer of the amount received from him and a refusal by the employer to receive the same. At the hearing before this court the plaintiff stated that he did not rely on this replication, and the exception to the decision of the superior court in sustaining the demurrer to this replication is overruled.

In the sixth replication, which raises the main question in this case, the plaintiff alleges that the agreement with his employer was made on the express understanding and agreement between the plaintiff and his employer that the plaintiff should receive the compensation provided for in said agreement, as approved, and proceed to bring action against the defendant for the negligence of defendant, and that the plaintiff should be bound and liable to repay to his employer all moneys received by him under said agreement out of any money or damages recovered from the defendant; that this action is brought in accordance with an express agreement between the plaintiff and his employer for the purpose of recovering the compensation paid to plaintiff by his employer, as well as for the benefit of the plaintiff.

In the other replications the plaintiff alleges in different phraseology the agreement between the plaintiff and his employer and that before this suit was begun the plaintiff made a lawful tender to his employer of the amount which had been paid to him by his employer; that this tender was refused by his employer; and that since such tender and refusal the plaintiff has refused to accept any money from his employer under the agreement. By the demurrer the defendant claims that, notwithstanding the tender and refusal to accept further compensation, the agreement with the employer, duly filed and approved, remains in full force and effect and constitutes an election of remedies on the part of the plaintiff which bars the plaintiff from proceeding against this defendant for damages, and relies, on the provisions of section 21, art. 3, Workmen's Compensation Act of 1912, which is as follows:

"Sec. 21. 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 employer to pay damages in respect thereof, the employe may take proceedings both against that person to recover damages and against any person liable to pay compensation under this act for such compensation, but shall not be entitled to receive both damages and compensation; and if the employe has been paid compensation under this act, the person by whom the compensation was paid shall be entitled to indemnity from the person so liable to pay damages as aforesaid, and to the extent of such indempity, shall be subrogated to the rights of the employe to recover damages therefor."

This section is substantially the same as section 6 of the English Workmen's Compen sation Act of 1906 (chapter 58, 6 Edw. 7), and upon comparison of the two acts it is apparent that the Rhode Island act was patterned closely after the English act.

The English Workmen's Compensation Act of 1897 (chapter 37, 60 & 61 Vict.), repealed by the act of 1906, provided that the injured employe might "at his option proceed" either against the third person negligent to recover damages, or under the compensation act against his employer for compensation, but not against both. Each of the English acts supra provided that the employer should be indemnified by the negligent third person.

In view of the history of this class of legislation in England and the similarity of our compensation act to the English act, the decisions of the English courts are of great importance in the determination of the question before us.

In the case of Oliver v. Nautilus Steam Shipping Co., 19 Times Law Reports, 607 (1903), it appears that the plaintiff, while in the employ of Rodgers & Co., ship repairers, was injured by reason of the negligence of an employe of the defendant. The plaintiff notified his employer of the accident, and some weeks later the agent of an insurance company, with whom the employer had effected insurance against accidents to workmen in their employ, paid plaintiff? 13s. 4d. being at the rate of? a week for four weeks and four days, and the plaintiff signed a receipt therefor stating that the money was received from his employers "on account of compensation which may be or become due to me under the Workmen's Compensation Act, 1897." A few days thereafter a member of his trade union cautioned the plaintiff against accepting any further payments without stipulating that he did so without prejudice. Accordingly, when the insurance agent next called and tendered the plaintiff as payment for one week to date, the plaintiff informed him that he could only accept that and any further payments "without prejudice," to which the agent assented. The plaintiff then accepted the and signed a receipt as before, though the receipt did not itself contain the words "without prejudice." Weekly payments of a week continued to be made to him upon receipts as before for more than four months, when he refused to accept any further payments, and shortly thereafter brought suit against the defendant. The case was tried by a judge without a jury, who held that the plaintiff was debarred by the provisions of the Workmen's Compensation Act of 1897 from pursuing his action against defendant. On appeal the court said that the question in the case was, Had the workman received compensation from his employers under the act? that upon the facts the whole of the payments, from first to last, must be treated as having been made "without prejudice," and that "justice required that in this case the court should hold that the workman had not irrevocably bound himself by what he had done, or exercised his option under the section so as to enable the defendants to say they were not liable to him at common law." The appeal was allowed and the decision of the lower court was reversed.

In Wright v. Lindsay and others, 49 Scot. L. R. 210 (1911), it appears that the plaintiff was injured in a collision with a motorcar which, belonged to the defendants, the driver of which was negligent. After the accident the plaintiff claimed and received compensation from his employers under the Workmen's Compensation Act of 1906 and his employers paid him certain sums as compensation, but this was done upon the express understanding that the plaintiff was to sue the party in fault for damages, and, if he was successful, the sums given to him in the meantime by his employers were to be returned. The defendants pleaded that the plaintiff had already received compensation from his employers and that his right to recover against them was barred by section 6 of the English act of 1906. On appeal it was held that plaintiff was not barred thereby from bringing his action for damages against the defendants. The court at page 213 says:

"The question is whether the pursuer's claim against the defenders is excluded. It would certainly be odd if it should be so, seeing that both the parties to the agreement, which is said to operate as a bar, understood and intended that the pursuer, notwithstanding the payments, should be at full liberty to proceed against the defenders at common law, and the defenders can show no good ground in equity why they should be absolved from their civil liability to the pursuer. Under the arrangement between the pursuer and his own employers they are secured against being called upon to make any payment to the employers after they have settled the pursuer's claim as judicially ascertained. * * * Unless, therefore, the language of section 6 admits of no other construction than that put upon it by the sheriff, there seems no good ground in principle or in equity why the pursuer should be barred from recovering damages at common law to which ex hypothesi he is otherwise...