Vatalaro v. Thomas

Decision Date29 February 1928
Citation160 N.E. 269,262 Mass. 383
PartiesVATALARO v. THOMAS.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Suffolk County; Frederick J. MacLeod, Judge.

Action by Raphael J. Vatalaro against William K. S. Thomas. A verdict was directed for defendant, and plaintiff brings exceptions. Exceptions overruled.

R. W. Gloag, of Boston, for plaintiff.

R. Homans and F. Adams, both of Boston, for defendant.

CROSBY, J.

This is an action to recover damages alleged to have been caused by an unskillful operation for hernia. At the trial the plaintiff's counsel in opening stated in substance as follows: The plaintiff was hurt and sustained a hernia in the course of his employment by one Levine. He was within the Workmen's Compensation Act, under which he could ask, and the Industrial Accident Board could award, compensation for such injury, and he presented his case to the Industrial Accident Board. The insurer of the plaintiff's employer took the plaintiff in charge, and sent him to a hospital where he was operated on by the defendant for hernia. In performing the operation the defendant ‘stitched the spermatic cord too tightly’ causing the left testicle to waste away and become atrophied. The opening described the plaintiff's suffering after the operation, and, in response to questioning by the judge, counsel stated that ‘the spermatic cord was within the area of the hernia operation; and in the course of such an operation it was necessary to cover the cord in some reasonable and proper fashion.’ He further said that it was the plaintiff's contention that the operation was no part of the injury which arose out of the plaintiff's employment, but was a distinct injury for which the plaintiff claimed damages.

After the plaintiff's opening, the judge suggested that ‘in order to enable the Court to have the legal issue in the case presented for determination, * * * it should have the facts in regard to the action of the Industrial Accident Board, in so far as either party thought it competent, on the issues, to be made a part of the record.’ Thereupon, an official of the Industrial Accident Board was called and examined by the judge. He testified that the plaintiff received a personal injury on March 20, 1922, which arose out of and in the course of his employment; that the injury caused a hernia, for which the plaintiff on April 21, 1922, was operated upon; that on September 15, 1922, the left testicle was removed; that on December 9, 1922, the board ordered compensation continued at the rate of $16 a week, which is the amount by agreement between the insurer and the employee that has been paid him since March 30, 1922. This official further testified that between the last named date and September 21, 1923, there had been several requests for hearings and claims for review on the part of the insurer, and one on the part of the employee; that on September 21, 1923, the board approved an agreement by which the insurer's liability was extinguished by the payment of $250. No question is raised by the plaintiff that the testimony of the official of the board is not to be considered in connection with the opening and as a part of it. Upon the plaintiff's opening and the testimony elicited by the judge a verdict was directed for the defendant, and the plaintiff excepted.

It is provided by G. L. c. 152, § 15, that:

‘Where the injury for which compensation is payable was caused under circumstances creating a legal liability in some person other than the insured to pay damages in respect thereof, the employee may at his own option proceed either at law against that person to recover damages or against the insurer for compensation under this chapter, but not against both; and if compensation be paid under this chapter, the insurer may enforce, in the name of the employee or in its own name and for its own benefit, the liability of such other person; and in case the insurer recovers a sum greater than that paid by it to the employee, four fifths of the excess shall be paid to the employee,'

-and by section 23, that:

‘If an employee of an insured person files any claim with or accepts payment from the insurer on account of personal injury, or makes any agreement, or submits to a hearing before a member of the department under section eight, such action...

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35 cases
  • Baker v. Wycoff (Industrial Commission, Intervener)
    • United States
    • Utah Supreme Court
    • 19 Mayo 1938
    ... ... Bidnick v. Armour & Co. , 113 Kan. 277, 214 ... P. 808; Hornetz v. Philadelphia & R. Coal & I ... Co. , 277 Pa. 40, 120 A. 662; Vatalaro v ... Thomas , 262 Mass. 383, 160 N.E. 269; Ross ... v. Erickson Const. Co. , 89 Wash. 634, 155 P. 153, ... L.R.A. 1916F, 319; 71 C. J. 641 ... ...
  • Smith v. Beard
    • United States
    • Wyoming Supreme Court
    • 18 Febrero 1941
    ...an action against the physician for malpractice. Paine v. Wyatt (Iowa) 251 N.W. 78; Roman v. Smith (Ida.) 42 F.2d 930; Vatalaro v. Thomas (Mass.) 160 N.E. 269; McDonough v. Association (Ore.) 294 P. Williams v. Dale (Ore.) 8 P.2d 578; Hinkelman v. Wheeling Corp. (W. Va.) 171 S.E. 538; Sugar......
  • Hanson v. Norton
    • United States
    • Missouri Supreme Court
    • 17 Marzo 1937
    ...42 F.2d 931; Sarber v. Insurance Co., 23 F.2d 434; Wesley v. Allen, 235 Ill.App. 322; Paine v. Wyatt, 251 N.W. 78; Vatalaro v. Thomas, 262 Mass. 383, 160 N.E. 269; McDonald v. Employers Liability Co., 192 N.E. Parchefsky v. Kroll, 267 N.Y. 410, 196 N.E. 308; Hoover v. Globe Indemnity Co., 2......
  • Makarenko v. Scott
    • United States
    • West Virginia Supreme Court
    • 8 Marzo 1949
    ...50 Am.Rep. 601; Chicago City Railway Company v. Saxby, 213 Ill. 274, 72 N.E. 755, 68 L.R.A. 164, 104 Am.St.Rep. 218. In Vatalaro v. Thomas, 262 Mass. 363, 160 N.E. 269, is said that at common law it is well settled that in an action for personal injury the injured person may recover for inj......
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