whereas he had, in fact, been employed since May 7, 1951, * * *' and modified the award correspondingly.
It is at least clear that no explanation satisfactory to the carrier has ever been given as to the employee's conduct in this respect; nor has the deputy commissioner's finding ever been contested or appealed.
Returning to the contentions of the plaintiff, brief comments on those heretofore mentioned may suffice. First, it is the opinion of this Court that the Court of Appeals did not purport to pass upon the merits of plaintiff's case in any way, and in particular, did not condone the error which the Commissioner designated as a deliberately false claim.
As to the alleged consent to suit, the showing seems insufficient to warrant a finding of oral consent, for the purposes of this action. No showing which would work an estoppel has been made, nor is it clear that the requirements of an oral contract are met. This opinion in any event does not pass upon that question, much less does it decide that an oral contract would suffice. The relief available to plaintiff, if any, would not seem to be within the scope of the present action.
As to the alleged insufficiency of American's investigation, it seems that the data available to the Claim Manager, in the light of his experience, is by no means so patently inadequate as to raise an inference of bad faith on his part.
The allegation that this is the first case in which American has refused reassignment is not persuasive, standing alone. Whatever probative value such circumstance might have seems highly speculative.
As to the assertion that Brown knew it would have no financial responsibility after reassignment, and that plaintiff had offered to repay compensation in consideration for reassignment, no inference can be drawn. The first branch is simply a description of the consequences of reassignment, of which Brown could hardly be unaware. The second describes the circumstances under which reassignment is permissible as a matter of law. The Owen, D.C.E.D.Pa.1942, 43 F.Supp. 897. Neither proposition is authority to the effect that reassignment is compulsory in any circumstance. To the contrary, the Act has no provision on that score.
As to the possible inferences to be drawn from the Sword Line offer to reimburse American Mutual for expenses in return for forbearance, no inference of venality can be drawn. As to the position that cooperation and reciprocity between insurers and other insureds or their insurers may be presumed, there is no matter of common knowledge involved as to which judicial notice may be taken.
In sum, it appears that American Mutual and plaintiff had no conflict of interest, and that the assignee had reasons for forbearing the hazard of suit on its own part. As to reassignment, there is no reason in law that would require such reassignment, barring bad faith -- and as to the latter, there is no evidence.
If American Mutual and Sword Line or its carrier were shown to have common financial stakes in American's forbearance, the result here would be governed by the Czaplicki case. Or if there were any showing that American Mutual had purported to bargain away any rights of the claimant, plaintiff might succeed. United States Fidelity & Guaranty Co. v. United States, 2 Cir., 1945, 152 F.2d 46, 48. Absent such circumstance, to permit plaintiff to proceed simply because he now feels that he can profit by reneging his statutory election would be to disregard § 33(b) and (i) of the Act. If an assignee cannot determine for himself whether he wishes to prosecute an assigned claim -- provided always that he makes a real decision, in good faith, free from arbitrariness or caprice -- the Act of the Congress is left with little vitality.
By the same reasoning, to compel reassignment in such case would flout the statute and also set precedent for a procedure of compulsory reassignment not contemplated by the Act. Since the law has no interest in fostering litigation, when the owner of a cause of action decides as a matter of reasoned choice to forego prosecution, it follows that the law should not compel him to assign it to someone who has already made a statutory election to accept compensation rather than hazard suit.
Accordingly, Defendant's Motion to Dismiss is hereby granted.
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