of law at the end of that period to his employer. In this instance the third party action was brought by the employee long after the expiration of the six months period and shortly before the expiration of the statute of limitations against bringing of the action.
If the statute stopped at this point the Court would agree with counsel for the defendant that the plaintiff has lost all his rights to bring suit by not doing so within the six months period. The statute, however, proceeds, in subsection section (d), as follows:
'Such employer on account of such assignment may either institute proceedings for the recovery of such damages or may compromise with such third person either without or after instituting such proceeding.'
In other words, subsection (d) places a limitation on the assignment. It is not an assignment for all purposes. It confers on the employer the right to institute and maintain proceedings or to compromise the claim with such third person. It does not authorize him to do nothing about it. The statute unfortunately does not indicate what should happen if the employer does nothing about the matter. It is what might be called a casus omissus.
Now we proceed to the following subsection, subsection (e). That section provides, in effect, that if the employer recovers any damages whether or not as a result of a compromise he shall first reimburse himself for all expenses, plus one-fifth of the excess, which presumably is compensation for his trouble, and then pay that balance to the employee. In other words, the employee retains what might be called an equitable right in the claim because he is interested in the outcome. His position is analogous to that of a cestui que trust, and the position of the employer, who is the assignee of the legal title to the claim, is analogous to that of a trustee, who, however, is empowered to reimburse himself for his expenses and receive compensation for his trouble.
To go back to subsection (d) that provision indicates that the assignment to the employer is not an absolute or complete assignment but confers on the employer certain limited powers. It does not confer upon him the power to abandon the action. The difficulty, of course, is that Congress apparently did not foresee the possibility of an abandonment of the action and, not anticipating such a contingency, has made no provision for it. It is necessary, therefore, to endeavor to interpret Congressional intent and the purpose of the statute.
Workmen's compensation acts are to be liberally construed. The Supreme Court many years ago in the case of Church of the Holy Trinity v. United States, 143 U.S. 457, 459, 12 S. Ct. 511, 512, 36 L. Ed. 226, made the following statement:
'It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers. * * * This is not the substitution of the will of the judge for that of the legislator, for frequently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act.'
There are many other cases that could be cited along the same line.
The Court reaches the conclusion that Congress could not have intended that the employer by his inaction should be permitted to destroy the rights of the injured employee against a third party, in view of the fact that the employee is accorded by this statute an interest in the recovery which may, at times, be much greater than the interest of the employer, and in view of the further fact that there are limitations on the employer's assignment expressly provided in the statute.
While the question is not free from doubt, and the Court was indeed impressed by the able argument of counsel for the defendant, the conclusion is nevertheless reached that if the employer, after the claim is assigned to him by operation of law, fails within a reasonable time either to institute suit or to secure a compromise of the claim, the injured employee may, within the period limited by the applicable statute of limitations, bring suit in his own name, and, therefore, he has the capacity to sue.
The Court has considered the case decided by the Court of Appeals of the State of New York on which counsel for the defendant relies, Taylor v. New York Central Railroad Co., 294 N.Y. 397, 62 N.E.2d 777. That case does seem to sustain the position of the defendant in this case, and under ordinary circumstances New York decisions construing its Workmen's Compensation Act would be very persuasive in view of the fact that the New York Act was one of the first statutes of its kind. An analysis of the New York statute, however, shows that the applicable section of the New York Workmen's Compensation Act, McKinney's Consol. Laws, c. 67, § 29, differs substantially from Section 933 of the Federal Act, as amended, and, therefore, the Taylor case cannot be deemed an authority. Specifically, there is no provision in the New York Act paralleling subsection (d) of the Federal Act, and it is subsection (d) that places limitations on the assignment made to the employer. In fact, the principle of statutory construction that enumerating some matters and failing to mention others is equivalent to excluding them, would seem to exclude the right of the employer to do nothing about the claim.
The Court is not unmindful of the fact that there are expressions which would lead to a contrary conclusion in a decision of the United States District Court for the Eastern District of Michigan in Alexander v. Creel, 54 F.Supp. 652. With due deference to the learned Judge who wrote that opinion, this Court takes a different view of the matter.
Accordingly, the defendant's motion to dismiss the complaint, construed as a motion for summary judgment, is denied.
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