Travis v. Rialto Furniture Co., 3206

• Decision Date: 07 June 1966
• Docket Number: No. 3206,3206
• Citation: 220 A.2d 179,101 R.I. 45
• Parties: Paul J. TRAVIS v. RIALTO FURNITURE COMPANY. Eq.
• Court: Rhode Island Supreme Court

Page 179

220 A.2d 179

101 R.I. 45

Paul J. TRAVIS v. RIALTO FURNITURE COMPANY.

Eq. No. 3206.

Supreme Court of Rhode Island.

June 7, 1966.

[101 R.I. 49] Thomas W. Pearlman, Providence, for petitioner.

Jordan, Hanson & Curran, William A. Curran, Providence, for respondent.

OPINION

ROBERTS, Chief Justice.

This is an employee's appeal from a decree of the workmen's compensation commission denying and dismissing his original petition to be awarded compensation for incapacity resulting from injuries sustained while in the employ of the respondent.

It appears that petitioner, permanently employed as a city fireman, was employed also by respondent to operate a delivery truck and that on April 27, 1962, while in the course of such employment, he was injured when his vehicle came into collision with a vehicle owned by J. T. Rosmond Co., Inc., hereinafter referred to as the third-party tortfeasor. The record discloses that petitioner on May 31, 1963 executed a general release running in favor of the third-party tortfeasor, the consideration therefor being $6,750. Thereafter the instant petition for compensation was filed on June 7, 1963, and the decree from which this appeal was taken was filed by the full commission on August 18, 1964. The question raised by petitioner on this appeal is whether an employee who has been injured in the course of his employment by the negligence of a third party and recovers damages either by way of settlement or judgment from that third party may thereafter proceed against the employer and be awarded compensation under the act for incapacity resulting from such injury.

General Laws 1956, § 28-35-58, as amended, precludes the recovery by an employee injured by the negligence of a third party of both compensation from his employer and damages from the third party. It is therein provided that when the employee has been injured in circumstances which create a legal liability in a person other than the employer to pay damages in respect thereof, 'the employee may take proceedings, both against that person to recover damages and against any person liable to pay compensation under said chapters for such compensation, but shall not be entitled to receive both damages and compensation * * *.' This provision of the statute goes on to grant to the person who has paid compensation in such circumstances the right to be indemnified by the third-party tortfeasor and to the extent of such payments subrogates the employer to the right of the employee to recover such damages.

In Colarusso v. Mills, R.I., 208 A.2d 381, this provision of the statute was held to authorize an injured employee who has recovered compensation from his employer for incapacity resulting from the negligence of a third party to thereafter recover damages from the tortfeasor. In that opinion we said: '* * * we now hold that a prior recovery of compensation benefits by an injured worker will not prohibit suit against the wrongdoer if he can establish either that he has agreed with his employer to reimburse him out of any recovery or that his employer has refused to enter into any such agreement. In the latter event, however, any ultimate recovery should be reduced by the amount of the compensation benefits received.' The question, however, of whether such an injured employee, who has recovered damages from the tortfeasor for his injury, may thereafter recover compensation from the employer for injuries sustained has not...