concurrence">Lehman, J.

(concurring). The plaintiff has recovered a judgment for injuries suffered through the negligence of the defendant’s employees. At the time of the accident the plaintiff was working on a building which was being constructed by Bing & Bing, as general contractors, and the plaintiff was in their employ. The plaintiff’s injuries resulted “ from an accidental personal injury sustained by the employee arising out of and in the course of his employment ” within the meaning of section 10 of the Workmen’s Compensation Law, and the plaintiff’s employment was hazardous within the meaning of section 2 of the same law. His employers had complied with all the requirements in regard to insurance provided by that law, and undoubtedly the plaintiff could have obtained compensation by claim to the commission. He preferred, however, to bring this suit against the defendant

*653Section 11 of the Workmen’s Compensation Law provides that “ the liability presented by the last preceding section shall be exclusive,” except that if an employer fails to secure the payment of compensation for his injured employees and their dependents as provided in section 50' of this chapter an injured employee or his legal representative in case death results from the injury may at his option elect to claim compensation under this chapter or to maintain an action in the courts for damages on account of such injury, and in such an action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant or that the employee assumed the risk of his employment or that the injury was due to the contributory negligence of the employee. The meaning of this section seems to me to be quite clear when read in conjunction, with the remainder of the law. By virtue of section 10 a liability unknown to the common law was imposed upon employers in designated employments to pay compensation for practically all injuries sustained by an employee arising out of and in the course of his employment “ without regard to fault as a cause of such injury.” In other words the expense of compensating employees for all injuries sustained was made a burden upon the industry and the old common law doctrine that compensation can only he obtained from a party whose fault caused the injury was abandoned. In order to make the new system complete it was provided that this form of compensation should he “ exclusive ” except where the employer failed to secure the actual payment of this compensation to the employee as provided by law. By means of these sections the legislature has attempted to solve the difficult problem of securing to the employee fair compensation for injuries. It has, however, merely attempted to deal *654with the liability of the employers toward their employees and while the new liability it has provided is .declared to be “ exclusive ” it seems to me quite clear that the word “ exclusive ” refers only to the liability which the new law deals with, i e., the liability of the employer to his employee and that it would be absurd to hold that the legislature had any intention of depriving an injured employee of any common law rights against third parties.

This construction is obviously borne out by the provisions of section 29 which reads as follows:

“ Section 29. Subrogation to remedies of employees.— If a workman entitled to compensation under this chapter be injured or killed by the negligence or wrong of another not in the same employ, such injured workman, or, in case of death, his dependents, shall, before any suit or claim under this chapter, elect whether to take compensation under this chapter or to pursue his remedy against such other. Such election shall be evidenced in such manner as the commission may by rule or regulation prescribe. If he elect to take compensation under this chapter, the cause of action against such other shall be assigned to the state for the benefit of the state insurance fund, if compensation be payable therefrom, and otherwise to the person or corporation liable for the payment of such compensation, and if he elect to proceed against such other, the state insurance fund, person or association or corporation, as the case may be, shall contribute only the deficiency, if any, between the amount of the recovery against such other person actually collected, and the compensation provided or estimated by this chapter for such cause. Such a cause of action assigned to the state may be prosecuted or compromised by the commission. A compromise of .any such cause of action by the workman or his dependents at *655an amount less than the compensation provided for by this chapter shall be made only with the written approval of the commission, if the deficiency of compensation would be payable from the state insurance fund, and otherwise with the written approval of the person, association or corporation liable to pay the same.”

Under this section it appears expressly that an employee has a right to “ elect whether to take compensation under this chapter or to pursue his remedy against such other ’ ’ and it follows therefore that the Workmen’s Compensation Law has not deprived an injured employee of his common law right of action against a negligent third party.

It is urged, however, that since this section provides that “ such injured workman * * * shall, before any suit or claim under this chapter, elect whether to take compensation under this chapter or to pursue his remedy against the other ” the plaintiff in this common law action must plead and prove that he has made such election in the manner prescribed by the rule or regulation of the commission. It seems to me, however, that such a construction of this section is forced. The law requires an election only “ before any suit or claim under this chapter ” and the words which I have italicized refer to and limit both the words “ suit ” and “ claim.” It seems to me that the words quoted, standing even alone, and the strict grammatical construction thereof, show that this was the meaning of the legislature, and the whole tenor" of the statute shows that this was the legislative purpose. As stated above, the only liability which the legislature has attempted to deal with is the liability of the employer. The statute in nowise attempts to regulate or change the ordinary common law liability of other parties for their own negligence, but since the employer is made liable for injuries without regard tq his fault it *656properly provides that he, or the fund ór person or corporation ultimately liable, shall be subrogated to the remedy which the employee may have against third parties provided the employee elects to take compensation under the statute, or if the employee elects to proceed against a third person who is liable as at common law for his negligence that such fund, person or corporation shall be liable to compensate the employee only for the deficiency between the amount of recovery actually collected and the compensation provided by the statute. The plain purpose of this section, it seems to me, therefore, is to give an employee injured through the negligence of a third party an election between a claim or suit against the employer under the new form of liability created by the statute and an election at common law against the negligent party; and inasmuch as the negligent party should in any event be the person ultimately liable and the employer should under no circumstances be held to a liability beyond the compensation fixed by the statute, the statute provides that the party seeking to obtain any benefit from the statute shall before suit or claim under the statute make his election as to the form of remedy he will pursue in order that the employer or the insurance fund shall not be forced to pay more than the established rate of compensation and shall be in a position to set off against this liability any recovery which can be enforced against a negligent third party. The very purpose of this section appears in the title of this section, viz.: “ Subrogation to remedies of employee. ’ ’ I can see no reason why this section should be so construed as to provide that an employee desiring to sue a third party must before bringing such action file as a condition precedent to enforcing his common law rights an election to make his claim at common law. If we so construe the statute it seems to me that *657we must hold that the legislature has placed persons employed in certain hazardous occupations in one peculiar class not only as regards their rights against their employers where there is good ground for such classification hut also as against third parties guilty of negligence where I can find no possible ground for such classification. The third party sued as at common law is in any event liable either to the injured employee or to his assignee and in no event is he liable to both. As far as such person is concerned it is quite immaterial whether an election has been made or not and we should not, I think, construe this statute in such manner as to limit the injured party’s common law right by requiring him to do any act under the Workmen’s Compensation Act in order to enforce a liability which exists at common law. If the legislature had intended to derogate in this particular from the common law it would have- so provided in an explicit manner. If the plaintiff in this action should compromise the action for an amount less than the compensation provided by the statute he would undoubtedly not be in a position to enforce under the statute any claim for the deficiency and there is some doubt as to whether he has not forfeited all claim under the statute by bringing this action without previously filing .an election. That question, however, I think affects only his right to a suit or claim against the employer and not his right to a suit at common law.

Citation profile

How this case has been treated — in progress