Whalen v. Athol Mfg. Co.
| Decision Date | 11 October 1922 |
| Citation | 136 N.E. 600,242 Mass. 547 |
| Parties | WHALEN v. ATHOL MFG. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Hampshire County; Aiken, Judge.
Action by Peter Whalen against the Athol Manufacturing Company to enforce defendant's liability for an injury for which compensation had been awarded. A demurrer was sustained and judgment ordered, and plaintiff brings exceptions and appeals. Exceptions overruled, and appeal dismissed.
R. P. Stapleton, of Holyoke, for appellant.
Shaw, Hickey & Cook, of Northampton, for appellee.
A demurrer was sustained to the amended declaration of the plaintiff; and the plaintiff took an exception to an order for judgment for the defendant, and also appealed. G. L. c. 231, § 96.
The facts admitted by the demurrer show that the plaintiff was seriously injured and incapacitated from performing his trade, on April 2, 1919, while in the employment of an independent contractor then engaged in certain work on the defendant's premises; and disclose that the injury was caused under circumstances creating a legal liability in the defendant to the plaintiff employee. The admitted facts further make known that the plaintiff received compensation for said injury under the Workmen's Compensation Act, St. 1911, c. 751, and amendments thereto, now G. L. c. 152, from the Federal Mutual Liability Insurance Company with which the independent contractor was insured under the said act. It is further admitted that the said insurance company--
‘though often requested, has declined to bring an action against said defendant for the recovery of damages for said injury, and neglects and refuses to bring an action therefor; [and] that the plaintiff brings the action for the benefit of the said Mutual Liability Insurance Company as well as for his own benefit.’
St. 1911, c. 751, pt. 3, § 15, St. 1913, c. 448, § 1, now G. L. c. 152, § 15, reads:
‘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 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.’
St. 1913, c. 448, § 1, amended St. 1911, c. 751, pt. 3, § 15, by adding at the end thereof the following:
‘And in case the association recovers a sum greater than that paid by the association to the employee four-fifths of the excess shall be paid over to the employee.’
Before the aforesaid amendment to the statute it was decided by this court that an employee waives all right to maintain an action for damages against a third person when he exercises his option and elects to...
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Czaplicki v. the Hoegh Silvercloud
...certain state courts under similar statutes, see Taylor v. New York Central R. Co., 294 N.Y. 397, 62 N.E.2d 777; cf. Whalen v. Athol Mfg. Co., 242 Mass. 547, 136 N.E. 600. We think, however, that allowing suit by the employee in these circumstances is the proper way to ensure him the rights......
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In re Meehan
...recover; and if there was a balance left, then it was required to pay four fifths of this balance to the employee. Whalen v. Athol Mfg. Co., 242 Mass. 547, 136 N.E 600;Fidelity & Casualty Co. v. Huse & Carleton, Inc., 254 Mass. 359, 150 N.E. 230;Jordan v. Orcutt, 279 Mass. 413, 181 N.E. 661......
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McKenzie v. Missouri Stables, Inc.
...Machine Co., 205 N.W. 56 (Neb.); Tandsetter v. Oscarson, 217 N.W. 660 (N.D.); Hunt v. Bank Line, 35 F. (2d) 136 (C.C.A. 4th); Whalen v. Athol Mfg. Co., 136 N.E. 600. Judson, Green, Henry & Remmers and Jos. J. Tomasso for defendant in (1) Appellate courts upon review are limited to the recor......
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Becker v. Eastern Massachusetts St. Ry. Co.
...the employee were before the jury. The decisions in Barry v. Bay State Street Railway, 222 Mass. 366, 110 N. E. 1031,Whalen v. Athol Manuf. Co., 242 Mass. 547, 136 N. E. 600, and Vatalaro v. Thomas, 262 Mass. 383, 160 N. E. 269, that the actions could not be maintained by the employees beca......