Appeal from the District Court of the United States for the District of Vermont.
Before MANTON, L. HAND, and SWAN, Circuit Judges.
Arthur Morin, the plaintiff's husband, met his death on February 2, 1929, through the fall of a defective elevator attached to an icehouse which the defendant railway maintained at Newport, Vt. He was survived by his widow and their three minor children. Morin was in the employ of one Handy, whom the railway had engaged to fill its icehouse, and, when the fatal accident happened, he was at work in the line of his duty as Handy's employee. It is conceded that the railway is liable in damages for his death unless the facts set up in its answer, and admitted by the plaintiff's demurrer, constitute a defense. The answer avers that Morin and his employer had accepted, and were subject to, the provisions of the Workmen's Compensation Act (chapter 241, G.L. Vt. [section 5752 et seq.]); and that on July 2, 1929, and prior to the commencement of this suit, the plaintiff, as administratrix of her husband's estate, had made claim for compensation under said act, given written notice thereof to Handy, and filed said notice and claim for compensation with the commissioner of industries. These facts, it is contended, constituted an election by the plaintiff to proceed under the Compensation Act and preclude the bringing of this action.
The question presented is one of statutory construction upon which the Vermont courts have not directly passed. We must therefore undertake it without the aid of an authoritative guide. The essential provisions of the statute read as follows:
"Sec. 5774. Right to Compensation Exclusive.The rights and remedies granted by the provisions of this chapter to an employee on account of a personal injury for which he is entitled to compensation under the provisions of this chapter, shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, at common law or otherwise on account of such injury. * * *
Sec. 5775. Liability of Third Persons. When an injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in some person other than the employer a legal liability to pay damages in respect thereto, the injured employee may, at his option, either claim compensation under the provisions of this chapter or obtain damages from or proceed at law against such other person to recover damages; and, if compensation is claimed and awarded under the provisions of this chapter, an 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 recovers from such other person damages in excess of the compensation already paid or awarded to be paid under the provisions of this chapter, then any such excess shall be paid to the injured employee less the employer's expenses and costs of action. * * *
Sec. 5796. Notice of Injury and Claim for Compensation. A proceeding under the provisions of this chapter for compensation shall not be maintained unless a notice of the injury has been given to the employer as soon as practicable after the happening thereof, and unless a claim for compensation with respect to an injury has been made within six months after the date of the injury; or, in case of death, then within six months after such death, whether or not a claim has been made by the employee himself for compensation. Such notice and such claim may be given or made by any person claiming to the entitled to compensation or by some one in his behalf. If payments of compensation have been made voluntarily the making of a claim within such period shall not be required.
But in case, through mistake of law of fact, suit or suits shall have been brought to recover damages in any court and final judgment is against the employee, the above limitation shall not begin to run until six months after such suit or suits shall have been finally determined. [As amended by Laws 1919, No. 159, § 4.]
Sec. 5797. Form of Notice and Claim. The notice and claim required under the provisions of the preceding section shall be in writing; and such notice shall contain the name and address of the employee, shall state in ordinary language the time, place, nature and cause of the injury and shall be signed by the employee or by a person in his behalf, or, in the event of his death, by any one or more of his dependents or by a person in their behalf. The notice and the claim may be combined. * * *
Sec. 5831. Rules of Construction. In construing the provisions of this chapter, the rule of law that statutes in derogation of the common law are to be strictly construed shall not be applied. The provisions of this chapter shall be so interpreted and construed as to effect its general purpose to make uniform the law of those states which enact it."
It will be observed that section 5774 makes the rights and remedies granted by the Compensation Act exclusive of "all other rights and remedies of such employee, his personal representatives, dependents of next of kin, at common law or otherwise on account of such injury." Section 5775 then enacts an exception to the generality of this rule; it grants the injured employee an option, when some person other than the employer is legally liable to pay damages on account of the injury, either to claim compensation or to obtain damages from or proceed at law against such other person and it provides for subrogation to the employer "if compensation is claimed and awarded." The two sections must be read together; and, if the injured employee has exercised his option to claim compensation -- at least if the compensation proceeding has progressed to an award -- he may not pursue the remedy of suit against the tortfeasor. So much is clear from Davis v. Central Vt. Ry. Co., 95 Vt. 180, 183, 113 A. 539, 540, where the court said with reference to section 5774: "* * * But when the provisions of this section are read in connection with the provisions of G.L. 5775, as they must be, it seems clear that the election to take compensation, if the same is awarded, etc., precludes the employee from pursuing any other right or remedy against any person. He may pursue either remedy; he cannot have the benefit of both."
In the Davis Case not only had the award been made, but compensation had been received pursuant to it. The case therefore leaves undecided the question now presented; namely, whether the option to "claim compensation" is exercised so as to preclude a suit when a person entitled to compensation gives to the employer and files with the commissioner of industries the notice of injury and claim for compensation prescribed by section 5796.
Under the section last mentioned a "proceeding" for compensation is initiated by giving to the employer a notice of the injury and making a claim for compensation, and the making of such claim within the time specified in section 5796 has been held to be a jurisdictional requirement. Petraska v. National Acme Co., 95 Vt. 76, 80, 113 A. 536. The appellant argues with much persuasive force that "claim compensation" in section 5775 means the same as "a claim for compensation" in section 5796; that this is the first alternative of the "option," the second being to obtain damages from or "proceed at law" against the wrongdoer; and that to construe the words "claim compensation" as though they read "obtain compensation" or "obtain an award" would be unjustifiable judicial legislation rather than permissible interpretation. We are not unmindful of the strength of this argument. The distinction between the claim, the award, and the payment, of compensation is clearly recognized throughout the statute, and section 5775 itself, in dealing with subrogation, differentiates between compensation claimed, awarded, and paid. If the employer has "paid the compensation" or has become "liable therefor," which must mean, if compensation has been awarded, he is subrogated to the injured employee's rights against the tort-feasor. After subrogation occurs, control of the suit against the tort-feasor is in the employer; clearly, therefore, at the minimum, after the compensation proceeding has progressed to an award, the employee's election must be final and exclude his remedy by suit. See Olson v. Thiede, 177 Minn. 410, 255 N.W. 391. But must we go further and say with the appellant that the election is made as soon ...