as the commission may provide, to receive such compensation or to recover damages against such third person.
"(b) Acceptance of such compensation shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person, whether or not the person entitled to compensation has notified the deputy commissioner of his election."
It is undisputed that in the case at bar libellant received and cashed three compensation checks and that there checks unmistakably showed that they represented compensation payments under the Act. There is no claim that libellant did not know that he was getting compensation. Claimant, therefore, contends that libellant's claim has been assigned by operation of law to Murphy-Cook & Company, his employer, and that libellant may not maintain this action. In support of this contention claimant cites the recent decision of the Circuit Court of Appeals for this circuit in The Nako Maru, 101 F.2d 716; as well as the cases of Toomey v. Waterman S.S. Corporation, 2 Cir., 123 F.2d 718; Moore v. Christiensen S.S. Co., 5 Cir., 53 F.2d 299; Sciortino v. Dimon Steamship Corporation, 2 Cir., 44 F.2d 1019; Hunt v. Bank Line, Limited, 4 Cir., 35 F.2d 136; Freader v. Cities Service Transportation Co., D.C., 14 F.Supp. 456. In all of these cases it was held that under Section 33 of the Longshoremen's and Harbor Workers' Compensation Act acceptance of compensation operates as an absolute assignment of the claim of the injured employee to his employer and that the employee can thereafter neither maintain an action against the third party whose negligence allegedly caused his injury nor compel his employer to do so. While it would appear from the evidence that libellant did not know that his acceptance of compensation would operate as an assignment to his employer of any claim which he might have against a third party, it has been held that the Act does not require a conscious election. Toomey v. Waterman S.S. Corporation, supra; but compare Johnson v. American-Hawaiian S.S. Co., 9 Cir., 98 F.2d 847.
In an effort to avoid the effect of these decisions, libellant introduced in evidence an agreement duly executed by his employer reassigning to him the claim against any third party responsible for his injury, in consideration of his returning to it the compensation payments which it had made to him. It therefore definitely appears that the employer in the case at bar has assented to the libellant's maintaining this action against a third party. In this respect this case differs from the cases relied upon by claimant, in all of which the employer either definitely opposed the claim of the employee against the third party, or there was no showing on the record of its position. The provision of the Longshoremen's and Harbor Workers' Compensation Act which transfers to the employer the rights of its employee against a third party upon the employee's acceptance of compensation is designed for the protection and benefit of the employer, not the third party wrongdoer. It entitles the employer who must pay compensation to the injured employee irrespective of fault, to enforce the employee's tort claim against any third party by whose fault the injury occurred. The third party tortfeasor was not the party sought to be protected by this provision of the Act and is given no ground thereunder to say which of two persons who may be entitled under the law to maintain an action against him may do so, except to the extent that he is entitled to protection against being exposed to action by both. Accordingly, where the employer objects to the action by the employee against the third party, or does not affirmatively assent thereto on the record, the third party may assert as a complete defense to an action by this employee the transfer of the employee's claim to the employer by operation of the Act, since otherwise he would still be subject to a like claim by the employer. Where, however, as in the case at bar, the employer, for whose protection Section 33 of the Act was adopted, has, by executing an assignment of the claim to the injured employee, disclaimed the right thus given to it by that section, the third party tortfeasor cannot rely upon the Act as a defense to a libel by the employee. Compare The Kokusai Kisen Kabushiki Kaisha, D.C., 44 F.2d 659, in which it was held that a third party alleged to be responsible for injuries sustained by a longshoreman was subject to suit by an insurance company as assignee of the claim acquired by his employer as a result of paying compensation under the Longshoremen's and Harbor Workers' Act.
The remaining question is that of damages. Libellant's principal injuries were a fracture of the left elbow and injury to the left side of his pelvis. It is undisputed that libellant was unable to work for approximately three months after the accident, during the first month of which he was confined to a hospital. His testimony was that at the time of the accident he had been earning approximately $45 a week. Libellant also asserts a claim for permanent disability by reason of a limitation of the industrial use of his left elbow allegedly as a result of this accident. His evidence to support this claim, however, was far from satisfactory and the medial testimony demonstrates clearly that the limitation of use of appellant's elbow is the result of an osteophyte which existed prior to the accident and was in no way related to the fracture. Accordingly, I find that libellant has failed to show that he has sustained any permanent disability as a result of the accident and I fix his damages at $1,250.
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