
    Charles Í. Claiborne, Judge,
    WILLIE WASHINGTON, Appellant vs T. SMITH & SON
    No. 8062.
    January 10th, 1921.
   WILLIE WASHINGTON, Appellant vs T, SMITH & SOH

Ho. 8062

Appeal from Civil District Court, Hon. Porter Parker, Judge.

CHARLES P. .CLAIBOREE, JUDGE.

This is a suit under the Employer's Liability Aot Ho. 20 of 1914 as amended by Act 243 of 1916 and Act 38 of 1918.

The plaintiff alleged that on March 31st, 1920, he was employed by the defendant^!. Smith & Son, as a longshoreman; that he was engaged in loading a steamship under the direction of the defendant^that while so engaged and while upon the wharf he attempted to cross a thoroughfate for vehicles when he was struck by a truck owned and operated by the Cresoent- Porwarding Company and thrown upon the ’floor of the said wharf and severely bruised about the body and back and side, and cut in his left hand; that he was confined to the Charity Hospital up to April 6th, 1920, and^on that day removed to his home where he was confined to his bed for two weeks; that up to the present time he is totally disabled from performing any work, and will continue' to be so for another four months) that he was earning $40 a week previous to the accident; that he now elects to receive the oompeneation due to him by his employer under the Employer's Liability Act of 1914 as amended by the Acts of 1916 and 1918. He prays for compensation at the rate of $16 per week from Earch 31st, 1920 until he is again able to resume work, and for $25 expended by him for medicine and medical attention.

The defendants admitted that plaintiff was working for them as a longshoreman on March 31st, 1920, that he was struck by a truok as alleged,and injured, but not as seriously as alleged; they deny all the other allegations of the petition and specially aver:

"that the injuries that plaintiff received were due to a third person; that the plaintiff, under the provisions of Aot 20 of 1914 and all laws amendatory thereof,' had the option of either receiving compensation or proceeding against the third person who caused the injuries; that on April 12th, 1920, plaintiff informed defendant herein in lilting that he had selected to proceed against the third person and that he did not desire any compensation, and in coriseciuence of which, as the plaintiff has elected not to receive any compensation, he is not entitled to a Judgment in this case, hut must proceed against the third party"J

they further aver, that the plaintiff is not entitled to medicine and medical attention for the reason that he elected not to take compensation, and that the defendant ovjfled none tmless he accept-» ed the physicians of the defendant.

The plaintiff had also cited as defendant the Union Indemnity Company. The exception of the Company that it was not liable unless the employer becomes insolvent, was sustained and the suit against it dismissed. The plaintiff admits that the judgment in this respect in favor Of the Insurance Company is oorreot.

There ms judgment in favor of the defendants, T. Smith & Son, and against the plaintiff Washington, and he has appealed.

Upon the trial of the case the following admission was made:

"It is admitted that on the 12th of April 1920 plaintiff in this case, when he was offered compensation by T. Smith & Son, defendant, stated that he did not want oompensation and desired to prooeed against the third person, and signed the following document:
Mew Orleans, La., April 12th,1920.
"This is to certify that I do not wish to accept oompensation from my employer, but wish to make claim against the owner of the truck that injured me on Jferch 31st, 1920.
"Signed* W. Washington
his X mark.
V/itneoses:
U. I. Forrest II. Braaill
The statute upon the subjeot is Seation 7 of Aot 20 of 1914 p 49 amended by the Act of 1918 p 52 which reads as follows: Section 7."lo Lc it further enacted, etc! That when an injury for which compensation is payable under this aot 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 or hi3 dependent 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 beoome liable therefor, shall be aubrogatod to the rights of the injured employee or his dependent to recover against that person, and may compromise the claim therefor in his discretion; &o"

She language of the aot sufficiently indicates that the law did not intend to seoure to the employee a dual concurrent remedy, one against his employer for compensation under the aot, and another for damages under the general law against the third person causing the injury. But the intention of the legislature clearly appears to restrict the aotion of the employee against one of two parties, either the employer or the third person. The statute distinctly says:

"the injured employee may, at his option, either claim oompansation under this aot or obtain damages from or proceed at law against such other person to reoover damages &cn.

He must elect one or the other for a defendant, and one or the other of the remedies; but he oannot reoover both compensation and damages. Any other oonstruotion would lead to the following consequence, that a workman could sue both hilo employer and the third person and obtain judgment against both, and thus re-oover a double indemnity for a single injury; and after the employer had paid the employee, he could, under the statute, sue the third person, and reoover from him what he liad paid, thus inflicting a double penalty upon the third person. Such a condition of affairs might lead to speculation, collusion, apd oppression, whioh we are bound to presume the legislature did not intend. Such was tlie construction of the statute in other jurisdictions. Workman's Compansation Acts C. J, Pamphlet p 140 > 168.

Ihe question arises, how is this election to ha shown, and does the document quoted above evidence such an election?

Agreements and releases by employees, total or partial, for an inadequate consideration, have always been looked upon vri V suspicion. C, J, Pamphlet p 65 § 47,

Tlie employee may show they were abtained by fraud. xa p 141 § 168.

In the case of Boikens vs R Rd , 48 A., 831, the plaintiff had affixed her mark to a reoeipt for §10 as a "donation", pud had acknowledged that the defendant was not at fault and that the aooident had oocured through her own carelessness. .Che Court said.

" "We cannot attach conclusive importance, under the circumstances, to the mark affixed to the reoeipt by this ignorant old woman. It was a donation, or at any rate, the word ."Donation" is written in the instrument signed. In this instrument she declares that she was not accustomed to the City cars, while, in reality, tí¡ a were employees present who 'ware aware of the oon-irury; that aha was a frequent passenger, a patron of the road since many years. Suoh a reoeipt, signed by any one of ordinary intelligence, would be binding and

Share is not a word of pleading or testimony in this cace i.iiir.sg.-.i.dg the validity of the election made by the plaintiff. She document is sufficient to constitute a binding eleo-t on. It is not necessary that the eleotion be evidenced by a ;■ .it.

In the case of Mc Garvey vs Independent Oil Co., 146 N. W., 895, the Court said:

"In case of an employee, in the course of his employment being injured by the actionable negligence of a third person, a statutory remedy aocrues to him for compensation against his employer and a common law remedy against such third person, though he cannot have hut one satisfaction. If he elects to pursue the common law remedy he waives the statutory right, and if he eleots to pursue the statutory remedy, the employer hy succession - ipso facto and eo instantl - becomes the owner of the right against the wrongdoer and may enforce the same in his own name*. Workmen's Pamphlet P 141.

In Cripp's case, 104 N. E., 565, Workmen*s Pamphlet p 140 (b) the Court said:

"She employee by his election to take ’damages, even if received without suit, and under the condition that the' pause of action must he released would exercise the option given by the statute. It would be toe teohnieal and refined a construction to treat the wording of the act as referring solely to an aotlon for personal injuries, and, if the employee had asked for compensation, the settlement with the Company, if not set aside would have barred the claim".

Considering that the election was made a matter of special defense that there is nothing upon the face of it that indicates error or fraud, and that it was not attacked upon the trial of the case by testimony, we feel bound to decide that the defendant had a right to rely upon it as "binding and conclusive" upon the plaintiff.

If the plaintiff is not entitled to compensation under the act, he oan claim none of its benefits. Ee cannot claim medicine and medical attention provided hy the act, because they form part of the items of damage to be paid by the employer or third person. But apart from this view, é 4 of Seo. 8 p B1V of the Aot of 1916 provides!

"The employer shall in every oase furnish the employee reasonable medioal, surgical, and hospital sarvioe and medidnos net to exceed $150 in value, unless the employee refuses to allow them to be furnished by the employer" .

We construe that language to mean that it is only after the employer baa refused to furnish that relief, that the workman can himself provide them. She reason is obvious; it is in order that no fraudulent or exaggerated claim should bs built up against the employer. In this case the plaintiff engaged his own physician without consulting the defendant. Workman's Compensation Pamphlet p 100 % 9?,

Judgment affirmed,

January 10th, 1921,  