In this action plaintiffs, husband and wife, claim damages for injuries allegedly caused by defendant's negligence. Among its defenses, defendant claims that the physically injured plaintiff, the husband, hereinafter referred to as plaintiff, has received workmen's compensation from his employer and accordingly has waived his right to recover herein. Plaintiff has moved to strike this defense on the ground that it is legally insufficient to constitute a defense, and that is the only question before me.
33 U.S.C.A. § 933(b), being part of the Longshoremen's and Harbor Workers' Compensation Act, made applicable to the District of Columbia by the Act of May 17, 1928, 45 Stat. 600, Sec. 36-501, D.C.Code 1951, 33 U.S.C.A. § 901 note, provides that acceptance of compensation 'under an award in a compensation order filed by the deputy commissioner shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against' a third person (italics supplied). But here there has been no award and therefore there has been no statutory assignment. Moreover, the Supreme Court in American Stevedores v. Porello, 1947, 330 U.S. 446, 454-456, 67 S. Ct. 847, 853, 91 L. Ed. 1011, has held, in construing Sec. 933(b) supra in a case where there was no award, that 'mere acceptance of compensation payments does not preclude an injured employee from thereafter electing to sue a third party tort-feasor.'