A settlement made by an employer and the giving of a release by the injured workman ordinarily bars a claim by such workman. A release executed by the employé, releasing his employer from compensation liability, will not, however, bar the right of any other person, such as his dependents.48 Nor does a release by the deceased employé's widow bar an action by the personal representative for the benefit of infant children.49 A release of the em ployer from liability for compensation will not release the third person whose negligence caused the injury, where no negligence of the employer contributed to the injury.50 Nor will a settlement be tween his employer and the employé, releasing all claims on atcount of the injury, include a claim for malpractice against physi

his average weekly earnings, to terminate, however, upon the tender of the employer or his insurance carrier, at its own expense, of an operation for th cure of the hernia, and its rejection or acceptance by the employé and its satisfactory outcome. Brandt v. Globe Indemnity Co., 1 Cal. I. A. C. Dec. 309 47 (Wk. Comp. Act Wash. § 8) Rulings Wash. Indus. Ins. Com. 1915, p. 19 48 An employé cannot, by making a settlement with a third person, precinde his wife from recovering compensation for his subsequent death as a resul of the injuries. The widow's right to compensation can be discharged on by herself, where she is the sole dependent, or by those authorized to act ir her behalf. (St. 1911, c. 751, pt. 2, §§ 6, 7, 22) In re Cripp, 216 Mass, 586, 104 N. E. 565, Ann. Cas. 1915B, 828; Williams v. Vauxhall Colliery Co., [1997] K. B. 433, 436; Howell v. Bradford Co. (1911) 104 L. T. R. N. S. 433.

In an action under the Wisconsin Act it was held that a payment to de ceased for one day's work lost by reason of his disability, and execution by him of a release by which he released the company from all claims which be might have under the Compensation Act, did not affect the claim of his widew for compensation for his death. Milwaukee Coke & Gas Co. v. Indus. Cor.

160 Wis. 247, 151 N. W. 245.

As to effect in general of settlement to bar dependent's claim, see § 78

ante. As to settlement agreements in general, see § 202, post.

49 (Wk. Comp. Act 1911, § 2, par. 12) West Jersey Trust Co. v. Phila, &

Reading R. R. Co., 88 N. J. Law, 102, 95

Atl. 753.

50 Jacowicz v. Delaware, L. & W. R. R. Co. (1915) 87 N. J. Law, 273, 92 A

946, Ann. Cas. 1916B, 1222.

cians who attended the employé.51 A release to the third party whose negligence caused the injury, given without consideration and without the approval of the employer's insurer, does not bar an action by the employé against the insurer for compensation.52 It may, however, be evidence of the employé's election to take damages, instead of compensation, and so bar a claim for the latter.53 A release from compensation liability, given by an employé's guardian, does not bar an action for damages, where the injured employé, by reason of his minority and illegal employment, was not within the Compensation Act. An agreement for additional specific compensation for the loss of three fingers, but not stating that it is intended to cover all claims for additional compensation, does not bar an award of additional compensation for an injury to the hand arising out of the same accident.55

54

It has been stated that while, as a matter of law, the authority of an employer under the California Act to exact the execution of any form of contract or release as a condition precedent to the paying of compensation duly awarded, further than a plain receipt which, when the final payment is made, may probably be made a receipt in full of all claim, is doubtful, no reasonable beneficiary of the Act should object to releasing a right which he ought not

51 (Gen. St. 1913, § 8195 et seq.) Viita v. Dolan (Minn.) 155 N. W. 1077.

52 (Wk. Comp. Act, §§ 29, 33) Woodward v. E. W. Conklin & Sons, Inc., 171 App. Div. 736, 157 N. Y. Supp. 948.

53 In Gilliland v. Kearns, 1 Conn. Comp. Dec. 277, where an accident was sustained under circumstances creating a legal liability for damages in a third party, and the claimant prior to the hearing had executed a release on valuable consideration discharging said third party from all liability in connection with the accident, it was held he had exercised his option to claim compensation or damages, and could not recover compensation. (Wk. Comp. Act, pt. B, § 6.)

54 Stetz v. F. Mayer Boot & Shoe Co. (Wis.) 156 N. W. 971.

55 (St. 1913, c. 445, § 1, as amended by St. 1914, c. 708, § 6 [e]) Lemieux v. Contractors' Mut. Liab. Insur. Co., 223 Mass. 346, 111 N. E. 782; In re Hunnewell, 220 Mass. 351, 107 N. E. 934.

to possess when he receives the full value of the right he does possess under the Act.56 All settlements and releases for compensation executed between employer and employé in Minnesota must be approved by a judge of the district court before they can be filed with the labor commissioner." It has been held in Massachusetts that the signing of a settlement receipt did not bar the employé from asking for a hearing before the Committee of Arbitration because of its refusal to reimburse him on account of his outlay for medical services.58

A release may be rescinded for mutual mistake of law. A party who, with full knowledge of the ignorance of the other contracting party, has not only encouraged that ignorance, but has knowingly deceived and misled that other into a mistaken conception of his legal rights, cannot shield himself behind the doctrine that a mere mistake of law affords no ground for relief."9

§ 190. Contracting out

A common provision of the Compensation Acts that any agreement by the employé to waive his right to compensation shall be void ❝ is not retroactive."1

60

56 Reed V. Zelinsky, 1 Cal. I. A. C. Dec. 496.

57 (Wk. Comp. Act, § 22; Gen. St. 1913, § 8216) Op. Atty. Gen. on Minn. Wk. Comp. Act, Bul. 11, p. 15.

58 Ducy v. American Mut. Liab. Insur. Co., 2 Mass. Wk. Comp. Cases, 513 (decision of Com. of Arb.).

59 Carpenter v. Detroit Forging Co. (Mich.) 157 N. W. 374.

60 See text of various Acts. (Wk. Comp. Law N. Y. § 32.)

A contract signed by an employé before going to work, absolving the employer from all obligations resulting from any accident he might subsequently meet, is not binding, as the contract entered into between the employer, employé, and the state of Illinois, when they accepted the provisions of the Workmen's Compensation Act, is controlling, and all previous contracts en

61 Laws 1913, c. 174, p. 312, prohibiting "contracting out," is inapplicable where the accident happened before its passage. Blackford v. Green, 87 N. J. Law, 359, 94 Atl. 401.

§ 191. Assignment of compensation rights

Compensation rights cannot ordinarily be assigned or subjected to the payment of debts.62 Relative to this prohibition it has been said: "The exemption of awards from assignment or charge is necessary in order to protect the injured employé and his dependents. If the claim were made assignable, he could sell it for a small sum, and thus deprive his dependents of benefits to which they are entitled. The compensation also is made exempt from his debts on the same principle that wages are now exempt. The justice and fairness of this should be conceded by all." Under the recognized rules of statutory construction, a provision validating an assign

64

tered into are merged. Chicago Savings Bank & Trust Co. v. Chicago Rys. Co., Bulletin No. 1, Ill., p. 104.

A provision in the lease of a dredge, whereby the owner and employer each exempted the other from liability for the other, did not operate to release the employer from liability for injuries to the owner while he was operating a gasoline launch as employé. In re Powely, 169 App. Div. 170, 154 N. Y. Supp. 426.

62 See text of various Acts.

The right to compensation from the state insurance fund cannot be assigned. (Wk. Comp. Act, § 41) In re Oscar Berg, vol. 1, No. 7, Bul. Ohio Indus. Com. p. 102.

63 (Wk. Comp. Act Wash. § 10) Rulings Wash. Indus. Insur. Com. 1915, p. 20.

64 "When the intention can be collected from the statute, words may be modified, altered, or supplied, so as to obviate any repugnancy or inconsistency with such intention." Lewis' Sutherland's Statutory Construction (2d Ed.) vol. 2, § 347. "The intention of an act will prevail over the literal sense of its terms." Id. § 348. "The presumption is that the lawmaker has a definite purpose in every enactment, and has adapted and formulated the subsidiary provisions in harmony with that purpose. * That purpose

is an implied limitation on the scnse of general terms." Id. § 369. "Words or clauses may be enlarged or restricted to effectuate the intention or to harmonize them with other expressed provision." Id. § 376. "A thing which is not within the intent and spirit of a statute is not within the statute, though within the letter." Id. § 379. "The real intention, when accurately ascertained, will always prevail over the literal sense of the terms. Statutes are likewise to be construed in reference to the principles of the

ment of the workman's cause of action to the insurer must be limited to its special purpose, and construed as impliedly repealing or modifying the existing law as to the nontransferability of personal injury claims only so far as necessary to effectuate such purpose.65

§ 192. Apportionment

Apportionment of compensation between dependents will ordinarily be made equitably in proportion to the respective contributions made by deceased for their support." Surviving brothers and sisters, who are not dependent upon the earnings of the deceased workman, are not entitled to a share of the compensation along with a dependent mother, who received her support from him.67 In New Jersey, the trial judge need not apportion compensation between a widow and child of a deceased employé, where such apportionment is not specially applied for.68 The provision of the New Jersey Act relative to distribution of compensation to children applies only to children of the deceased workman, and not to his brothers and sisters. Where a deceased workman is survived by a reputed wife, found to be totally dependent on him and a member of his family, and by his legal wife and a minor child, for whose main

69

common law; for it is not to be presumed that the Legislature intended to make any innovation upon the common law further than the case absolutely required." 1 Kent's Commentaries (14th Ed.) 462.

65 (Wk. Comp. Law, § 29) United States F. & G. Co. v. New York Rys. Co., 93 Misc. Rep. 118, 156 N. Y. Supp. 615.

60 Where a minor contributed small sums, averaging not over 50 cents a week, to his father for tobacco, money and groceries amounting to $5 a week to his mother, and money estimated at 50 cents a week, and some clothing, to his sister, the death benefit was apportioned at the rate of one-sixth to the father, one-sixth to the sister, and two-thirds to the mother. Anderson v. American Straw Board Co., 1 Conn. Comp. Dec. 11 (affirmed by superior court on appeal).

67 Matecny v. Vierling Steel Works, 187 Ill. App. 448.

68 Taylor v. Seabrook, 87 N. J. Law, 407, 94 Atl. 399.

69 Conners v. Public Service Electric Co. (N. J. Sup. 1916) 97 Atl. 792.