Young v. Duncan

• Decision Date: 17 June 1914
• Citation: 218 Mass. 346,106 N.E. 1
• Parties: YOUNG v. DUNCAN. In re YOUNG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

218 Mass. 346

106 N.E. 1

YOUNG v. DUNCAN.

In re YOUNG.

Supreme Judicial Court of Massachusetts, Suffolk.

June 17, 1914

COUNSEL

Otto C. Scales, of Boston, for employe.

Sawyer Hardy & Stone, of Boston (Edward C. Stone, of Boston, of counsel), for insurer.

OPINION

RUGG C.J.

Hazel Young received injuries on June 10, 1913, arising out of and in the course of her employment while working for Jefferson E. Duncan at his jewelry factory at Arlington.She brought an action of tort at common law against her employer, alleging that her injuries resulted from his negligent conduct.The defendant seasonably filed a paper entitled 'Motion and Plea,' setting out that he was a subscriber under the Workmen's Compensation Act at the time of the plaintiff's employment by him and had continued so to be since, and that she neither at the time of entering his employment nor at any time thereafter gave him notice that she claimed her right of action at common law as provided in St. 1911, c. 751, part 1, § 5, and hence that she could not maintain her action at law, concluding with a prayer that the writ abate.Both parties treated this as a plea in abatement.The plaintiff had claimed a trial by jury.It is not necessary to determine whether this referred only to the general issue raised in her declaration or extended ot the plea in abatement.She had a right to claim trial by jury upon the facts raised by this plea.O'Loughlin v. Bird,128 Mass. 600;Oliver Ditson Co. v. Testa,216 Mass. 123, 103 N.E. 381.But having proceeded to hearing upon the plea before the judge without objection and without insisting upon a trial by jury as to the facts raised by it that right if preserved up to that time was waived as to that point.Hence no constitutional right by jury is involved in this respect.The court allowed the motion.As matter of construction this means that he found the facts as alleged in the motion.He excluded, subject to the plaintiff's exception, the affidavit offered by her tending to show that the defendant had not complied with section 21, part 4, of the act, as amended by St. 1912, c. 571, § 16, as to giving notice to every person with whom he is about to enter into a contract of hire that he has provided for payment to injured employés under the act and that no notice had been given her and she had no knowledge that the defendant was a subscriber under the act.

It must be presumed that the court found that the defendant was a subscriber under the act.That finding must stand, as the evidence upon which it was based is not reported.The questions presented are, whether an employé must receive notice that the employer is a subscriber before he can be held to have waived his common-law rights, and whether the failure of the employer to give the notices required of him renders the act inoperative as to the unnotified employé, if the latter so elects.

The purpose of this act has been stated several times.Briefly, it was to substitute a method of accident insurance in place of the common-laws rights and liabilities for substantially all employés except domestic servants, farm laborers and masters of and seamen on vessels engaged in interstate or foreign commerce, and those whose employment is casual or not in the usual course of trade, business or employment of the employer, and probably those subject to the federal Employers' Liability Act.It was a humanitarian measure enacted in response to a strong public sentiment that the remedies afforded by actions of tort at common law and under the Employers' Liability Act had failed to accomplish that measure of protection against injuries and of relief in case of accident which it was believed should be afforded to the workman.It was not made compulsory in its application, but inducements were held out to facilitate its voluntary acceptance by both employers and employés.It is manifest from the tenor of the whole act that its general adoption and use throughout the commonwealth by all who may embrace its privileges is the legislative desire and aim in enacting it.The act is to be interpreted in the light of its purpose and so far as reasonably may be to promote the accomplishment of its beneficent design.

Part 1, § 5, provides that:

'An employé * * * shall be held to have waived his right of action at common law to recover damages for personal injuries if he shall not have given his employer, at the time of his contract of hire, notice in writing that he claimed such right, or, if the contract of hire was made before the employer became a subscriber, if the employé shall not have given the said notice within thirty days of notice of such subscription.'

This sentence is plain and definite.The employé is held to have waived his common-law right if he fails to give notice 'at the time of his contract of hire.'This absolute and unequivocal provision is not made dependent upon any other condition or circumstance.It is not made to rest upon knowledge or notice to him of the fact that the employer is a subscriber.That it was not intended to be dependent upon such knowledge or notice is plain from the concluding clause, which in the event of the employer becoming a subscriber after the employment makes such waiver dependent upon notice.The expression of this condition in the one class of cases impliedly would exclude it from the other, even if the language used were less plain.It seems clear beyond a doubt from these words that the notice is required to be given when the terms of the employment are fixed by the contract of hire.

It is urged, however, that the effect of this unequivocal language is modified by part 4, § 21, as amended bySt. 1912, c. 571, § 16, which requires every subscriber to 'give notice in writing or print, to every person with whom he is about to enter into a contract of hire, that he has provided for payment to injured employés by the association' and to file a copy of the notice with the industrial accident board.This is a direction to the employer, but failure to comply with it does not carry with it any penalty either to him or to the employés, except that it may involve some consequences to the employer as shown by section 22.That it was not intended to be of rigid effect is apparent from the further provision that the notice may be given as there prescribed 'or in such other manner as may be approved by the industrial accident board.'Manifestly the rights of employés were not intended to be made to rest on a method of giving notice which may be changed from time to time by an administrative board as experience may evolve that which is most practicable.Moreover, this notice may have other uses in giving information as to hospitals and physicians available to employés in case of injury, as is pointed out in Panasuk's Case, 105 N.E. 368.If the employé's right to avail himself of the act depended upon actual notice to him of the fact of insurance by the employer, hardship to the employé often might result.There would be strong ground for the argument (if the plaintiff's contention were upheld) that the only right of an employé would be at common law unless the employer gave the required notice; a consequence manifestly at variance with the general purpose of the act and one which in many instances would work great hardship.There is no indication in the act itself that part 1, § 5, and part 4,§ 22, were intended to be correlative or interdependent.Each stands alone with distinct uses and purposes.As thus interpreted the act is plain and easy of comprehenision.If an employé desires to avoid the act, and preserve his common-law rights, he must give notice to that effect in the absence of fraud when he enters the employment rather than when he is notified of insurance by the employer, or he is held to have availed himself of the act.This construction in the vast majority of cases will forward the beneficent aims of the act better than any other.The evidence offered by the plaintiff was excluded rightly.

This was not the reason for the ruling given in the superior court.But the accuracy of the reason given is of no consequence when the ruling is right.Randall v. Peerless Co.,212 Mass. 352, 384, 99 N.E. 221.

It follows that the plaintiff had no occasion to try the question whether the employer had given the notice required of him under the act or the regulations of the industrial accident board, and hence had no right to a trial by jury in that respect.If the parties are subject to the act then all then rights arising under it are to be settled by the agencies there provided and not as in actions at common law.Panasuk's Case, 105 N.E. 368.

The plaintiff argues that the act is unconstitutional as thus interpreted.An opinion was given by the Justices to the General Court to the effect that the act would be constitutional if enacted.Opinion of Justices, 209 Mass 607, 96 N.E. 308.This opinion, however, was advisory in character, given by the justices as individuals, without the benefit of argument, and was not an adjudication by the court and the rule of stare decisis does not apply to it.Green v. Commonwealth,12 Allen, 155, 164;Opinion of Justices, 7 Pick. 125, 130;Id., 126 Mass. 566;Id., 214 Mass. 599, 604, 102 N.E. 464.Therefore the ground is re-examined in the light of the argument now presented, without reliance upon the earlier opinion of the...