IN GENERAL; RIGHT TO ELECT IRRESPECTIVE OF STATUTORY PRO

1. In general; right to elect irrespective of statutory provision.1

A very few of the compensation statutes give the employé an absolute right, after an accident has happened, to de

1 Of course there is a clear distinction between an election of remedies by an employé after an accident has happened, and the election which both the employer and the employé may exercise under some of the statutes as to whether they, or either of them, will come within the provisions of the compensation features of the statute at all. In the text of the present chapter is considered merely the election which the employé may make after the accident, presuming, of course, that both employer and employé

In general; right to elect irrespective of statutory provision termine whether he will demand "damages" or "compensation." Some of them give him a right to pursue both remedies at once; but in such cases an actual recovery under one form of action usually precludes further proceedings in the other. In several of the acts "damages" may be recovered in cases where an employer is guilty of a violation of a safety statute, or a wilful act, or of gross negligence, and injury is caused thereby. Some of them go so far as to permit the recovery of "double damages" or "double compensation", when the injury is caused by a disregard of a statute relating to safety devices. A considerable percentage of the laws provide that where the employer and the employé are both bound by the compensation provisions of the statute that the right to "compensation" shall be exclusive of all other rights. In some instances a workman while employed in his master's business is injured through the wrong of a third party. Suppose, for example, a driver of A's team is injured by the negligence of B, who is operating an automobile. The driver can recover compensation from A. He also has a cause of action against B, for damages. Usually, under the various statutes, he may elect which remedy to pursue. Speaking generally, the employé can have only one recovery of damages or compensation, for a single injury. But under a set of circumstances such as described above, where the employé recovers compensation from his employer, the latter usually is subrogated to the rights of the workman as against the third person who caused the injury. When the damages recovered are greater than the statutory amount allowed for compensation the balance usually goes to the employé.

Just how far the doctrine of estoppel by election, or the rule that a release of one joint tort feasor releases all, applies to the compensation statutes, is left in considerable doubt.

have signified their intentions, in proper legal form, to accept and be bound by the features of a particular act relating to compensation, or that the statute is compulsory.

In general; right to elect irrespective of statutory provision Some of the acts contain specific provisions on one or both of these subjects, while others are entirely silent on both. When the statute gives the employé the right to elect between one of two remedies, as, for example, to claim "damages" or "compensation," from his employer, and is silent as to the effect of the election, doubtless the general doctrine of estoppel by election would apply. That is, if, in such a case the employé should sue for "damages" and should fail he would be estopped from claiming "compensation." Vice versa if he should claim "compensation" he would be estopped from suing for damages.

A more serious question arises in relation to claims from injuries caused by third persons. In many such cases the employer would be liable for compensation, although he had nothing to do with the accident. Thus in the case cited of a driver who is injured on the public highway, by the negligence of another person, the employer of the driver must pay compensation even though a cause of action may exist in favor of the driver against the person causing the injury. In the absence of special statutory provision what would be the effect if the driver should sue such third person and recover judgment which he subsequently satisfied also giving a general release to the person who caused the injury? The author has entertained the opinion that in such a case the employer would be discharged from liability for "compensation" on account of that injury. In two cases in New Jersey, however, it was held to the contrary, prior to the amendment of the New Jersey Act in 1913, covering this particular point. Perlsburg v. Muller (Essex Common Pleas), 35 N. J. Law J. 202; Houghton v. W. G. Root Const. Co. (Mercer Common Pleas), 35 N. J. Law J. 332. These cases proceeded on the theory that the employer and the person who caused the injury were not joint tort feasors, in that the claim against the employer did not rest in tort at all, but arose out of an implied contract. This construction was given under the New Jersey Act which provides, in effect, that the employer

In general; right to elect irrespective of statutory provision

and employé are presumed to have contracted, the one to pay and the other to accept compensation. Many of the statutes cover the point specifically, but where they do not and the act is "elective," it would seem that the New Jersey decisions, cited above, would apply.

Ordinarily where a person sues two or more defendants separately for the same wrong and gets separate judgments against them, he can enforce either one of the judgments, as he pleases, but not both of them. Rex v. Coney Island and Brooklyn R. R. Co., 2 Bradbury's Pl. & Pr. R. 296. Under the New Jersey cases cited above probably this doctrine would not apply under the compensation acts, where the injury was caused by a third person.

By the terms of the British Compensation Act if a workman sues at common law under the circumstances specified in § I, 2, b, of the Act, and is defeated he can ask the same court to assess compensation. Apart from this special provision the doctrine of estoppel by election applies. Thus where a claim for compensation was refused by the arbitrator under the Compensation Act of 1897, it was held that this was a bar to a subsequent action at common law for damages. Burton v. Chapel Coal Company (1909), 46 Scotch L. R. 375; 2 B. W. C. C. 120. Where a workman had recovered compensation from his employers, it was held that he was not entitled to maintain an action against a person other than the employer, the negligence of whose servant had caused the injury for which complaint was made, even though the workman would have been entitled to a larger sum by way of damages than he had received by way of compensation. Mahomed v. Maunsell (1907), 1 B. W. C. C. 269. Where a workman who had received an injury on the premises of a person other than those of his employer and had entered into an agreement with the owner of the premises to satisfy any claim he had against them, in consideration of such person paying his wages during incapacity, for a period not to exceed six months, together with his

In general; right to elect irrespective of statutory provision doctor's bill, it was held that this was a recovery of damages which precluded the workman from claiming compensation from his employer, as the recovery of such damages need not necessarily be by legal proceedings. Page v. Burtwell (1908), 1 B. W. C. C. 267.

A workman employed by contractors was knocked down and injured by a London County Council tramcar. He received payments from his employers and signed receipts which stated that the money was paid as compensation under the Act. Subsequently he repaid these moneys and commenced an action against the London County Council. He then said that he had not read or understood the papers which he had signed. The County Court judge nonsuited the workman on the ground that he was estopped by the receipts. It was held, on appeal in the King's Bench Division that while, prima facie, the man was bound by the receipts which he signed, his real intention in signing must be considered. If he did not read or understand the document there might not be an estoppel. It was held that the case should have been left to the jury, for the determination of the question of fact whether the man understood the nature and effect of the receipts when he signed them. Huckle v. The London County Council (1910), 3 B. W. C. C. 536.

An option to accept compensation, under the Act, instead of damages, exercised on behalf of an infant, will be set aside if it be not for the infant's benefit. Ford v. Wren & Dunham (1903), 5 W. C. C. 48; Stephens v. Dudbridge Ironworks Co. (1904), 6 W. C. C. 48. In the last-mentioned case relatives of the infant had made claim for compensation and this was paid to the infant, who signed a release in full. It was held that this did not debar the infant from maintaining a common-law action for damages.

All these decisions, however, arose under special provisions of the British statute and are not safe precedents to follow in applying general doctrines established irrespective of statute law.