Silvia v. Scotten

Wolcott, Chancellor,

delivering the opinion of the court:

The question before us involves the construction of that portion of the Workmen’s Compensation Act of 1917 (Chap. 233, Vol. 29, Laws of Del.), which deals with the liability of an alleged tort-feasor to answer in damages for the death of an employee whose widow and dependents have accepted compensation from the deceased’s employer, the alleged tort-feasor being a person other than the employer. The portion of the act with which we are concerned is, as follows:

“319311. Section 131. Whenever an injury for which compensation is payable under this Article 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 Article, or obtain damages from, or proceed at law against such other person to recover damages, but he shall not proceed against both; and if compensation is awarded under this Article, the employer having paid the compensation or having become liable therefor, shall be subrogated to the rights of the injured employee, or of his dependents to recover damages against such third person, and may recover in his own name or that of the injured employee from the other person in whom legal liability for damages exists, the indemnity paid or payable to the injured employee. Any recovery against such third person in excess of the compensation theretofore paid and thereafter payable by the employer (less the cost of securing and collecting same) shall be paid forthwith, when collected, to the employee or the dependents."

The precise question presented by the record is: may a suit for damages for the death of an employee whose widow and dependents have accepted the benefits of the Workmen’s Compensation Act be maintained in the name of the widow against the alleged tort-feasor who is a stranger to the contract of employment under which the deceased was engaged at the time of the injury?

In answering this question, we conceive that two inquires are involved, viz.: (1) may the third person tort-feasor be sued after compensation has been accepted under the Workmen’s Compensation Act? (2) if so, in whose name must the suit be instituted?

First. May the third person be sued? It is well settled that under the common law no action for damages could be maintained against a person who by his wrongful act, neglect or default may have caused the death of another person. Such was the rule in England until the passage of Lord Campbell’s Act, 1846. Such also was the rule in this state until the enactment in 1866 of the Delaware Death Act (now printed as Section 4155, Rev. Code of Del. 1915). This act is as follows:

"4155. Sec. 3. Personal Injury Actions; Who May Prosecute; Death by Unlawful Violence or Negligence; Who may Sue. — No action brought to recover damages for injuries to the person by negligence or default shall abate the reason of the death of the plaintiff; but the personal representatives of the deceased may be substituted as plaintiff and prosecute the suit to final judgment and satisfaction.

“Whenever death shall be occasioned by unlawful violence or negligence, and no suit be brought by the party injured to recover damages during his or her life, the widow or widower, * * * the personal representatives, may maintain an action for and recover damages for the death and loss thus occasioned.”

By this act a person whose negligence or unlawful violence is responsible for the death of another is liable in damages to the parties named in the act as entitled to sue. The Workmen’s Compensation act does not repeal this act either expressly or by implication so far as the liability of the non-employing tort-feasor is concerned. Certainly if no compensation has been accepted under the Compensation Act, the employee if living and the widow or widower or personal representative, as the case may be if the employee has died without bringing suit, are left in possession of all the rights accorded to them by the law against third persons tort-feasors as fully as though the Compensation Act had never been adopted. There is nothing in the provisions of the Compensation Act which destroys the liability of a non-employer tort-feasor to respond in damages to the proper party for the death of an employee, notwithstanding such employee or his dependents has or have accepted the benefits of the Workmen’s Compensation Law. When the purpose of the Workmen’s Compensation Act is borne in mind it would be highly unreasonable to assume that in its enactment, the Legislature intended to save a class of wrongdoers who are in no wise related to the compensation scheme from the liability which the law had theretofore imposed upon them. The Workmen’s Compensation Act concerns only employer and employee and is designed to afford a fair and equitable adjustment of their mutual rights and obligations, primarily for the benefit of the employee. A stranger to the employment is outside of the act’s contemplation, and his liabilities are not intended by the act to be disturbed. The only particular in which the act deals with him appears in Section 131, and here there is no attempt to destroy his liability, the sole purpose of the section being to make an alteration in the theretofore existing law in respect to parties plaintiff against him in case compensation has been agreed upon.

In its first clause Section 131 speaks of an injury done by some person other than the employer for which a legal liability to pay damages exists and provides that the injured “employee” may elect to accept compensation or proceed at law against the wrongdoer for damages, but “he (the employee) shall not proceed against both.”

It is apparent that liability under the death statute is not within the literal scope of this language, because under said statute there is no right of action in the “employee.” The action under that statute is in favor of the widow or widower, or if there be no widow or widower in the personal representatives. Thus far, therefore, the section would appear not to contemplate in any manner the liability created by the death statute. But later in the section it is provided that in case the employer pays compensation he shall be “subrogated to the rights of the injured employee, or of his dependents,” and further, that in case the employer recovers from the other person in whom legal liability exists an amount in excess of the compensation already paid and to be paid, such excess “shall be paid forthwith, when collected, to the employee or the dependents.” By Section 139 of the Compensation Act the term “dependent” is defined to exclude employee and to embrace inter alia “personal representatives, and the widow or widower of the deceased. ’ ’ The only right of action that dependents of this class can have for damages against a tort-feasor and to which the employer can, therefore, be subrogated is the right of action created by the Death Act. Taking Section 131 in its entirety it would, therefore, appear that notwithstanding its first clause seems to refer solely to rights of action which have no connection with the death statute, the later provisions which deal with the subrogation right of the employer and with the payment to dependents of the excess above compensation recovered by the employer must contemplate as well the right of action created by the Death Act. Unless the Death Act liability is recognized and contemplated by Section 131, we are at a loss to discover any cause of action to which the word “dependents” found in the section can be made to relate.

Our conclusion, therefore, with respect to the first question is, that liability under the Death Act of a person other than the employer to respond in damages for the death of an employee still continues notwithstanding his dependents have accepted compensation under the Workmen’s Compensation Act.

2. The next inquiry is, who may assert this liability? The court below held that the widow, the plaintiff in this case, having accepted compensation under the Workmen’s Compensation Act could not maintain an action under the death statute because under the provisions of Section 131 of the Compensation Act she was put to her election as to which remedy she would pursue, and having elected to take compensation she thereby precluded herself from proceeding under the Death Act. We see no error in this ruling.

The death Act does two things. It creates a liability where none had theretofore existed, and it provides who may assert a claim for damages based on that liability. As we have herein-before pointed out, the liability created by the Death Act is not disturbed in any way by Section 131 of the Compensation Act. Indeed such liability is by necessary construction plainly recognized. While, however, the Compensation Act does thus recognize the continuance of the liability under the Death Act, it does not adopt its provisions with respect to who may bring suit to assert it. On this question, viz., who may sue to assert the liability ? the Compensation Act in Section 131, when compensation has been paid, in substance amends the Death Act. It appears to be the plain intent of the Compensation Act to provide that when compensation is paid, or to be paid, the liability of the third person tort-feasor while continued in full force is nevertheless primarily preserved for the compensating employer. We can gather no other meaning from the language of Section 131, which provides that the employer upon paying or becoming liable to pay compensation “shall be subrogated to the rights of the injured employee or of his dependents.” The effect of this language is in essence to operate as an assignment of all the rights of the employee or his dependents to the employer as soon as the latter pays, or becomes liable to pay, compensation under the act. Mass. Bonding & Ins. Co. v. San Francisco Rys. Co., 39 Cal. App. 388. 178 Pac. 974. Unless this be so, the tort-feasor in such cases would be exposed to a double liability, first to the employee, or to the widow, widower or personal representative under the Death Act, and second to the employer under the Compensation Act. To avoid such double liability the latter act in Section 131 expressly denies to the employee the right to proceed against both the tort-feasor and the employer, and by necessary construction the same denial of a right to proceed against both is laid upon the dependents. The scheme of subrogating the employer to the rights of the employee and his dependents requires in reason that the tort-feasor should thereafter respond in liability only to the employer. When the employee or his dependents agree to accept compensation from the employer any claim for damages either may have against a third person is surrendered by them in favor of the employer and control over such claim rests in his exclusive possession. As was said by the court in McGarvey v. Independent Oil Co., 156 Wis. 580, 146 N. W. 895, “the employer by succession — ipso facto et eo instanti— becomes the owner of the right against the wrongdoer." He may assert it or not as he sees fit. If perchance the claim for damages against the third person is far in excess of the amount of compensation allowed under the Compensation Act, the employee, or his dependents to whom such excess belongs in the event that the employer collects it, have no way of collecting it except as the interest or grace of the employer may prompt him to act. In this respect they are at his mercy. The risk that he will not act to collect full damages from the person liable is a hazard they take in electing to proceed under the Compensation Act. This may not be fair and just to the employee and his dependents. Indeed it would appear to us not to be. But it is the result which the language of the act clearly indicates as the legislative intent, and we have no choice but to observe it.

In order to escape the conclusion that the statute means to subrogate the employer to the rights of “dependents” (which term includes the widow) and thus to avoid the logical consequences flowing therefrom, the plaintiff in error argues that the word “dependents” whenever it appears in the section must be rejected as surplusage. We do not feel warranted, however, in dealing so freely with the language of the Legislature. It must be assumed that the word was employed to express a purpose, and being able as we are to discover a rational purpose in its use, we are not at liberty to strike the word from its context.

It thus appearing that the employer is in exclusive possession of the claim for damages against the third person tortfeasor, the next question is, how must he assert the claim? The statute in Section 131 answers this question. It provides that he "may recover in his own name, or that of the injured employee.” In the instant suit recovery is sought, not in the name of the employer, nor in that of the employee. It is sought in the name of the widow, and the widow is neither the employer nor employee. In this particular the case is distinguishable from Hall, Adm’x, v. Thayer & Co., 225 Mass. 151, 113 N. E. 645, to which we are referred by the plaintiff in error. In the Hall Case the Massachusetts Compensation Act was involved, and while that act in a provision quite similar to our Section 131 provided that the employer could sue in his own name or that of the employee, yet the arbitrary definition given by the Massachusetts act to the word “employee” embraced “legal representatives, dependents and other persons to whom compensation may be payable.” No such arbitrary definition brings the widow within the scope of the word “employee” in the Delaware act.

Thus the suit is not in a name authorized by the Compensation Act. It is apparent that the widow’s name is used as party plaintiff under the impression that the designation of parties found in the death statute may be properly followed. But this we think is an erroneous impression. While, as we have indicated, the liability created by the death statute is preserved by the Compensation Act, the provision as to parties found in the former is amended by the latter when compensation is agreed upon. The cause of action after compensation is payable belongs to the employer. It is a legal right which the employer never before enjoyed, a new right, and the Compensation Act provides how he may enforce it. The fact that the language is permissive (such being the nature of “may”) in no wise detracts from the imperative necessity that the employer shall proceed according to one or the other of the permitted ways. “Where a right is given and a remedy provided by statute, the remedy so provided must be pursued.” That is the language of the court in People v. Craycroft, 2 Cal. 243, 56 Am. Dec. 331. In 2 Sutherland on Statutory Construction (2d Ed.), § 632, in the chapter wherein the author discusses mandatory and directory statutes, the following is found:

“Where a statute confers a new right, privilege or immunity the grant is strictly construed, and the mode for its acquisition, preservation, enforcement and enjoyment is mandatory.”

To the same effect is 25 R. C. L., § 283, “Statutes,” p. 1058, where it is said:

“Where a statute creates a new right, and prescribes a remedy for its violation, the remedy thus prescribed is exclusive."

This principle was applied in this state in Kennedy v. Delaware Cotton Co., 4 Penn. 477, 58 Atl. 825, where the language of the Death Act in prescribing who “may” sue under it was held in substance to be mandatory in character.

Our conclusion with respect to the second question, therefore, is that while the liability under the Death Act is unimpaired by Section 131 of the Compensation Act, yet its assertion is controlled exclusively by the employer and he must, when he asserts it, do so either in his own name or that of his employee. Of course, if the employee be dead, then the employer’s own name is the only one left to him in which to sue. He cannot sue in the name of the widow.

In disposing of this case we have not paused to consider whether the replication does not show that the suit is not only in the name of the widow, but as well in fact for her own benefit, and not for the benefit of the employer. In order that there may be an express ruling of this cotut upon the important question of parties in cases such as this, we have assumed that the replication does show the suit to be in the widow’s name but for the employer’s benefit. We rest our conclusion squarely upon the point that the employer cannot use the widow’s name as party plaintiff. He must pursue strictly the permission granted him by the statute, viz., sue either in his own name, or in that of the employer.

The judgment below is affirmed.