Creamer v. Lott , 124 Me. 118 ( 1924 )

Philbrook, J.

This case is before us upon defendant’s general motion to set aside a verdict in favor of the plaintiff, motion for new trial upon the ground of newly-discovered evidence, and exceptions. It is unnecessary to consider either motion. The exceptions must be sustained.

The action is brought under Public Laws, 1919, Chap. 238, Sec. 26, as amended by Chapter 238 of the Public Laws of 1921, a section from the Workman’s Compensation Act. The precise section now reads:

“When any injury for which compensation is payable under this act 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 act or obtain damages from or proceed at law against such other person to recover damages; and if compensation is claimed and awarded under this act, any employer having paid the compensation or'having become liable therefor shall be subrogated to the rights of the injured employee to recover against that person, provided, if the employer shall recover from such other person damages in excess of the compensation already paid or awarded to be paid under this act, then any such excess shall be paid to the injured employee less the employer’s expenses and costs of action.”

The basis upon which subrogation rests, in this statutory right of action, and a condition precedent to instituting suit thereon, is that compensation be claimed and awarded under the act. It is only when the injured employee claims compensation under the act, and the same is awarded, and the employer has paid the compensation or has become liable therefor, that the employer succeeds to the rights of the injured employee to recover damages against the other person. Donahue v. Thorndike & Hix Inc., 119 Maine, 20.

There is no proof of award. Proof that the employer did in fact pay compensation whether voluntarily or not, falls short of the necessary condition precedent under which this action may be maintained. The refusal of the court below in refusing to direct a verdict for the defendant on the ground ‘ ‘that no award under the Workman’s Compensation Act had been shown and that therefore no right of subrogation existed in the employer or his insurance carrier” was error.

Exceptions sustained.

Motions not considered.