Silvia v. Scotten

• Decision Date: 23 October 1923
• Citation: 32 Del. 295,122 A. 513
• Court: United States State Supreme Court of Delaware
• Parties: MARY SILVIA, widow of Joseph Silvia, deceased, plaintiff below, plaintiff in error, v. GEORGE P. SCOTTEN, GEORGE C. SCOTTEN and LYMAN SCOTTEN, Jr., co-partners trading as George P. Scotten and Sons, defendants below, defendants in error

122 A. 513

32 Del. 295

MARY SILVIA, widow of Joseph Silvia, deceased, plaintiff below, plaintiff in error, v. GEORGE P. SCOTTEN, GEORGE C. SCOTTEN and LYMAN SCOTTEN, Jr., co-partners trading as George P. Scotten and Sons, defendants below, defendants in error

Supreme Court of Delaware

October 23, 1923

Supreme Court, October Term, 1923.

Writ of error to the Superior Court of the State of Delaware, in and for New Castle County, No. 37, January Term, 1921.

(See also, 1 W. W. Harr. (31 Del.) 290.)

This action was brought by the widow of Joseph Silvia, deceased against the defendants below for damages for the death of Joseph Silvia alleged to have been occasioned by the negligence of the servant of the defendants below, defendants in error.

To the declaration filed by the plaintiff below, plaintiff in error the defendants pleaded that Joseph Silvia was employed by D. E. O'Connell & Son and that upon his death his widow, the plaintiff below, claimed compensation from D. E. O'Connell & Son under the Delaware Workmen's Compensation Law of 1917 (29 Del. Laws, c. 233); that thereafter the widow and the other dependents of said Silvia reached an agreement with respect to compensation in accordance with the provisions of said Compensation Law, a memoradum of which agreement was filed with the Industrial Accident Board and approved by it, whereby the said D. E. O'Connell & Son became liable for compensation to the said widow and other dependents of Joseph Silvia.

A demurrer was interposed to the plea, and was overruled by the court below. Thereupon the plaintiff filed a replication averring that the agreement with respect to compensation referred to in the plea was made on the express understanding and agreement between the plaintiff and D. E. O'Connell & Son that the plaintiff should receive the compensation provided for under the Workmen's Compensation Law and proceed to bring action against the defendants for negligence in causing the death of Joseph Silvia, and that the plaintiff should be bound and liable to repay to D. E. O'Connell & Son all moneys received by her under said compensation agreement out of any money or damages recovered by her from the defendants, and that this action was brought in accordance with an express agreement between the plaintiff and D. E. O'Connell & Son, the deceased's employer, for the purpose of recovering the compensation paid to the plaintiff by D. E. O'Connell & Son as well as for the benefit of the plaintiff, the dependent of said Joseph Silvia.

A demurrer to this replication was sustained by the court below. At the election of the plaintiff below final judgment was entered in favor of the defendants below. The action of the court below in overruling the demurrer to the plea and in sustaining the demurrer to the replication is brought before this court for review on the pending writ of error.

The judgment is affirmed.

Philip L. Garrett and George W. Lilly for plaintiff in error.

James Saulsbury and James I. Boyce for defendants in error.

WOLCOTT Chancellor, RICE, HARRINGTON and RODNEY, J. J., sitting.

OPINION

WOLCOTT, Chancellor

The question before us involves the construction of that portion of the Workmen's Compensation Act of 1917 (Chap. 233, Vol. 29, Laws of Del.), which deals with the liability of an alleged tort-feasor to answer in damages for the death of an employee whose widow and dependents have accepted compensation from the deceased's employer, the alleged tort-feasor being a person other than the employer. The portion of the act with which we are concerned is, as follows:

"3193ll. Section 131. Whenever an injury for which compensation is payable under this Article shall have been sustained under circumstances creating in some other person than the employer, a legal liability to pay damages in respect thereto, the injured employee may, at his option, either claim compensation under this Article, or obtain damages from, or proceed at law against such other person to recover damages, but he shall not proceed against both; and if compensation is awarded under this Article, the employer having paid the compensation or having become liable therefor, shall be subrogated to the rights of the injured employee, or of his dependents to recover damages against such third person, and may recover in his own name or that of the injured employee from the other person in whom legal liability for damages exists, the indemnity paid or payable to the injured employee. Any recovery against such third person in excess of the compensation theretofore paid and thereafter payable by the employer (less the cost of securing and collecting same) shall be paid forthwith, when collected, to the employee or the dependents."

The precise question presented by the record is: may a suit for damages for the death of an employee whose widow and dependents have accepted the benefits of the Workmen's Compensation Act be maintained in the name of the widow against the alleged tort-feasor who is a stranger to the contract of employment under which the deceased was engaged at the time of the injury?

In answering this question, we conceive that two inquires are involved, viz.: (1) may the third person tort-feasor be sued after compensation has been accepted under the Workmen's Compensation Act? (2) if so, in whose name must the suit be instituted?

First. May the third person be sued? It is well settled that under the common law no action for damages could be maintained against a person who by his wrongful act, neglect or default may have caused the death of another person. Such was the rule in England until the passage of Lord Campbell's Act, 1846. Such also was the rule in this state until the enactment in 1866 of the Delaware Death Act (now printed as Section 4155, Rev. Code of Del. 1915). This act is as follows:

"4155. Sec. 3. Personal Injury Actions; Who May Prosecute; Death by Unlawful Violence or Negligence; Who may Sue.--No action brought to recover damages for injuries to the person by negligence or default shall abate the reason of the death of the plaintiff; but the personal representatives of the deceased may be substituted as plaintiff and prosecute the suit to final judgment and satisfaction.

"Whenever death shall be occasioned by unlawful violence or negligence, and no suit be brought by the party injured to recover damages during his or her life, the widow or widower, * * * the personal representatives, may maintain an action for and recover damages for the death and loss thus occasioned."

By this act a person whose negligence or unlawful violence is responsible for the death of another is liable in damages to the parties named in the act as entitled to sue. The Workmen's Compensation act does not repeal this act either expressly or by implication so far as the liability of the non-employing tort-feasor is concerned. Certainly if no compensation has been accepted under the Compensation Act, the employee if living and the widow or widower or personal representative, as the case may be if the employee has died without bringing suit, are left in possession of all the rights accorded to them by the law against third persons tort-feasors as fully as though the Compensation Act had never been adopted. There is nothing in the provisions of the Compensation Act which destroys the liability of a non-employer tort-feasor to respond in damages to the proper party for the death of an employee, notwithstanding such employee or his dependents has or have accepted the benefits of the Workmen's Compensation Law. When the purpose of the Workmen's Compensation Act is borne in mind it would be highly unreasonable to assume that in its enactment the Legislature intended to save a class of wrongdoers who are in no wise related to the compensation scheme from the liability which the law had theretofore imposed upon them. The Workmen's Compensation Act concerns only employer and employee and is designed to afford a fair and equitable adjustment of their mutual rights and obligations, primarily for the benefit of the employee. A stranger to the employment is outside of the act's contemplation, and his liabilities are not intended by the act to be disturbed. The only particular in which the act deals with him appears in Section 131, and here there is no attempt to destroy his liability, the sole purpose of the section being to make an alteration in the theretofore existing law in respect to parties plaintiff against him in case compensation has been agreed upon.

In its first clause Section 131 speaks of an injury done by some person other than the employer for which a legal liability to pay damages exists and provides that the injured "employee" may elect to accept compensation or proceed at law against the wrongdoer for damages, but "he (the employee) shall not proceed against both."

It is apparent that liability under the death statute is not within the literal scope of this language, because under said statute there is no right of action in the "employee." The action under that statute is in favor of the widow or widower, or if there be no widow or widower in the personal representatives. Thus far, therefore the section would appear not to contemplate in any manner the liability created by the death statute. But later in the section it is provided that in case the employer pays compensation he shall be "subrogated to the rights of the injured employee, or of his dependents," and further, that in case the employer recovers from the other person in whom legal liability exists an amount in excess of the compensation already paid and to be paid, such excess "shall be paid forthwith, when collected, to the employee or the dependents." By Section 139 of the Compensation Act the term "dependen...