OPINION OE THE COURT BY
BANKS, J.
(Parsons, J., dissenting.)
This is a reserved question under the statute. On November 3, 1930, plaintiff commenced an action against the Honolulu Rapid Transit Company, Limited, for injuries alleged to have been caused by the negligence of the defendant in the operation of one of its street cars. The defendant filed a general denial. At the trial in the court below it appeared that on July 10, 1930, the plaintiff was employed as a helper on a truck of the garbage department of the City and County of Honolulu.
O.n that date the truck on which plaintiff was working was struck by defendant’s- street car and as a result the •plaintiff suffered personal injuries. Shortly thereafter the plaintiff filed a claim with the industrial accident board for compensation under the Workmen’s Compensation Act (Ch. 209, R. L. 1925). He was awarded and received compensation in the sum of $23.07 and costs of medical and hospital services. Upon this state of the evidence the court below reserved for our consideration the question of whether the plaintiff may maintain his action against the defendant Honolulu Rapid Transit Company, Limited.
The answer to this question depends upon the construction to be given section 3608, R. L. 1925, which reads as follows: “When any injury for which compensation is payable under this chapter shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may, at his option, either claim compensation under this chapter or obtain damages from or proceed at laAv against that other person to recover damages; and if compensation is claimed and aAvarded under this chapter any employer having paid the compensation or having become liable therefor shall be subrogated to the rights of the injured employee to recover against that person, provided, if the employer shall recover from that other person damages in excess of the compensation already paid or awarded to be paid under this chapter, then any such excess shall be paid to the injured employee, or other person entitled thereto, less the employer’s expenses and costs of action. The amount of compensation paid by the employer, or the amount of compensation to which the injured employee, or his dependents is entitled, shall not be admissible in evidence in any action brought to recover damages.”
The vital words of this statute for the purposes of this ease are, “the injured employee may, at his option, either claim compensation under this chapter or obtain damages-from or proceed at law against that other person to recover damages.” This language appears to us to be so clear as to leave no room for construction. It contemplates that an employee who is injured by the negligence of a third person may have his choice of either one of the two remedies mentioned in the statute. He may choose that, given him by the statute, against his employer or he may choose that, given him by the common law, against the negligent third party. The words “either * * * or” clearly indicate the intent of the legislature that both remedies cannot be pursued but that an election must be made. Any other conclusion would do violence to language that is unambiguous and would be nothing short of judicial legislation.
This view of the statute is clearly implied in
Reinhardt
v.
County of Maui,
23 Haw. 524. That was a case in which the injured employee elected to rely on his common-law cause of action against the third party. The court said (p. 528) : “There is no evidence whatever showing that the plaintiff made a claim against his employer for the injury received or that' he filed with the industrial accident board a claim for compensation on account of the injuries complained of, hence, on the record, we must hold that he elected to hold the third party responsible, and not look to his employer for compensation.”
Our attention is called to
Lowe
v.
Morgan’s Louisiana & T. R. & S. S. Co.,
150 La. 29, 90 So. 429, in which it is claimed that the court under a statute similar to ours held that the plaintiff was not precluded from maintaining an action against a third party whose negligence caused the injury when he had previously claimed and obtained compensation against his employer under the
Workmen’s Compensation Act. The Louisiana court, speaking on this point, said (p. 430) : “All that we think this section intended to do was to give the employer a statutory subrogation pro tanto, to the rights of plaintiff, where otherwise it would have been necessary to obtain from the employer” (employee) “a conventional transfer. The provision does not say that an employee claiming compensation shall forfeit his right of action against a third person by claiming compensation, but that he shall have the option to seek either, but in any event he shall not be entitled to be paid twice that portion of his demand which is represented by the compensation. Such a meaning can only be read into the law by implication, and we think its language would have to be much plainer than it is to have the effect of saying that a tort-feasor can avail himself of a provision in no wise intended for his benefit, and with respect to which he is in no sense a party privy or governed in his responsibility by the law.”
We do not agree with this view. Our statute does more than accord the employer the right of statutory subrogation
pro tanto.
It imposes upon the plaintiff the necessity of electing between two definite courses of action. That the tort-feasor may incidentally benefit from the resulting situation is a consideration which cannot be permitted to influence our reading of plain language. Whether such an incidental benefit is to be conferred upon the tort-feasor is a question which the statute requires the plaintiff himself to decide. It is not the function of this court to relieve the plaintiff of the necessity of making this decision.
Our attention is also directed to cases from other jurisdictions in which it is held that an injured employee may proceed against his employer under the Workmen’s Compensation Act and also against a third party whose-
negligence caused his injury. These cases, however, are predicated upon statutes so dissimilar to our own as to render them entirely inapposite.
Jean Vaughan {Kemp & Stainbaelc
with her on the briefs) for plaintiff.
J. G-. Anthony {Robertson & Castle
on the brief) for defendant.
A. W. A. Cowan {Ulrich & Hite
on the brief) amicus curiae.
The subrogation clause of our statute, taken in connection with the option clause above referred to, strengthens the conclusion that the plaintiff cannot maintain the instant action. Under the subrogation clause, when the employee elects to claim compensation from his employer and is awarded such compensation, his right of action against a third party, whose negligence caused his injuries, passes from him to his employer.
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OPINION OE THE COURT BY
BANKS, J.
(Parsons, J., dissenting.)
This is a reserved question under the statute. On November 3, 1930, plaintiff commenced an action against the Honolulu Rapid Transit Company, Limited, for injuries alleged to have been caused by the negligence of the defendant in the operation of one of its street cars. The defendant filed a general denial. At the trial in the court below it appeared that on July 10, 1930, the plaintiff was employed as a helper on a truck of the garbage department of the City and County of Honolulu.
O.n that date the truck on which plaintiff was working was struck by defendant’s- street car and as a result the •plaintiff suffered personal injuries. Shortly thereafter the plaintiff filed a claim with the industrial accident board for compensation under the Workmen’s Compensation Act (Ch. 209, R. L. 1925). He was awarded and received compensation in the sum of $23.07 and costs of medical and hospital services. Upon this state of the evidence the court below reserved for our consideration the question of whether the plaintiff may maintain his action against the defendant Honolulu Rapid Transit Company, Limited.
The answer to this question depends upon the construction to be given section 3608, R. L. 1925, which reads as follows: “When any injury for which compensation is payable under this chapter shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may, at his option, either claim compensation under this chapter or obtain damages from or proceed at laAv against that other person to recover damages; and if compensation is claimed and aAvarded under this chapter any employer having paid the compensation or having become liable therefor shall be subrogated to the rights of the injured employee to recover against that person, provided, if the employer shall recover from that other person damages in excess of the compensation already paid or awarded to be paid under this chapter, then any such excess shall be paid to the injured employee, or other person entitled thereto, less the employer’s expenses and costs of action. The amount of compensation paid by the employer, or the amount of compensation to which the injured employee, or his dependents is entitled, shall not be admissible in evidence in any action brought to recover damages.”
The vital words of this statute for the purposes of this ease are, “the injured employee may, at his option, either claim compensation under this chapter or obtain damages-from or proceed at law against that other person to recover damages.” This language appears to us to be so clear as to leave no room for construction. It contemplates that an employee who is injured by the negligence of a third person may have his choice of either one of the two remedies mentioned in the statute. He may choose that, given him by the statute, against his employer or he may choose that, given him by the common law, against the negligent third party. The words “either * * * or” clearly indicate the intent of the legislature that both remedies cannot be pursued but that an election must be made. Any other conclusion would do violence to language that is unambiguous and would be nothing short of judicial legislation.
This view of the statute is clearly implied in
Reinhardt
v.
County of Maui,
23 Haw. 524. That was a case in which the injured employee elected to rely on his common-law cause of action against the third party. The court said (p. 528) : “There is no evidence whatever showing that the plaintiff made a claim against his employer for the injury received or that' he filed with the industrial accident board a claim for compensation on account of the injuries complained of, hence, on the record, we must hold that he elected to hold the third party responsible, and not look to his employer for compensation.”
Our attention is called to
Lowe
v.
Morgan’s Louisiana & T. R. & S. S. Co.,
150 La. 29, 90 So. 429, in which it is claimed that the court under a statute similar to ours held that the plaintiff was not precluded from maintaining an action against a third party whose negligence caused the injury when he had previously claimed and obtained compensation against his employer under the
Workmen’s Compensation Act. The Louisiana court, speaking on this point, said (p. 430) : “All that we think this section intended to do was to give the employer a statutory subrogation pro tanto, to the rights of plaintiff, where otherwise it would have been necessary to obtain from the employer” (employee) “a conventional transfer. The provision does not say that an employee claiming compensation shall forfeit his right of action against a third person by claiming compensation, but that he shall have the option to seek either, but in any event he shall not be entitled to be paid twice that portion of his demand which is represented by the compensation. Such a meaning can only be read into the law by implication, and we think its language would have to be much plainer than it is to have the effect of saying that a tort-feasor can avail himself of a provision in no wise intended for his benefit, and with respect to which he is in no sense a party privy or governed in his responsibility by the law.”
We do not agree with this view. Our statute does more than accord the employer the right of statutory subrogation
pro tanto.
It imposes upon the plaintiff the necessity of electing between two definite courses of action. That the tort-feasor may incidentally benefit from the resulting situation is a consideration which cannot be permitted to influence our reading of plain language. Whether such an incidental benefit is to be conferred upon the tort-feasor is a question which the statute requires the plaintiff himself to decide. It is not the function of this court to relieve the plaintiff of the necessity of making this decision.
Our attention is also directed to cases from other jurisdictions in which it is held that an injured employee may proceed against his employer under the Workmen’s Compensation Act and also against a third party whose-
negligence caused his injury. These cases, however, are predicated upon statutes so dissimilar to our own as to render them entirely inapposite.
Jean Vaughan {Kemp & Stainbaelc
with her on the briefs) for plaintiff.
J. G-. Anthony {Robertson & Castle
on the brief) for defendant.
A. W. A. Cowan {Ulrich & Hite
on the brief) amicus curiae.
The subrogation clause of our statute, taken in connection with the option clause above referred to, strengthens the conclusion that the plaintiff cannot maintain the instant action. Under the subrogation clause, when the employee elects to claim compensation from his employer and is awarded such compensation, his right of action against a third party, whose negligence caused his injuries, passes from him to his employer. In the event the employer’s recovery against the third party exceeds the compensation paid or awarded to be paid the employee plus the expenses and costs of action, such excess must be handed over to the latter. It would be a contradiction to say that after the employee makes his election his cause of action against the third party passes from him and yet remains in him. The statute creates no such anomaly. The most that can be said for the employee is that he retains the limited right to the excess described above. To permit him to prosecute the action in his own name would either subject the third party to two suits on the same facts or deprive the employer of a valuable right conferred upon him by the statute. It would be contrary to the clearly expressed legislative intent to so construe the statute as to encompass either of these results.
The reserved question is answered in the negative.