In this case certiorari was granted, 294 U.S. 703, 55 S.Ct. 544, 79 L.Ed. --, to resolve doubts as to the construction of section 33 of the District of Columbia Compensation Act (Longshoremen's and Harbor Workers' Compensation Act, c. 509, 44 Stat. 1424, 33 U.S.C. § 901 et seq. (33 USCA § 901 et seq., and § 933) made applicable to the District of Columbia by Act of May 17, 1928, c. 612, 45 Stat. 600 (D.C. Code 1929, T. 19, §§ 11, 12)).
Doleman, petitioner's intestate, in the course of his employment within the District, was struck by the automobile of respondent and received injuries which caused his death. He left surviving him his widow, and, as his heirs at law and next of kin, a brother and a dependent father, who is his administrator. The widow elected to receive compensation from the employer under the provisions of the Compensation Act. The father elected not to receive compensation and brought the present suit as administrator to recover for the death under the provisions of the Wrongful Death Act of the District. Code of Law for the District of Columbia. 1929, Title 21, §§ 1-3. A like suit, brought by the employer against the respondent, is also pending. The Supreme Court of the District gave judgment for the defendant, sustaining a plea in abatement which set up the pendency of the suit brought by the employer and that the right to recover for the wrongful death had been assigned to the employer by operation v. Moses, 287 U.S. 530, 53 S.Ct. 231, 77 L.Ed. The Court of Appeals affirmed, 64 App.D.C. 25, 73 F.(2d) 842, relying in part on its construction of the relevant provisions of section 33 of the Compensation Act and in part on our decision in AEtna Life Insurance Co. v. Moses, 287 U.S. 53, 53 S.Ct. 231, 77 L.Ed. 477, 88 A.L.R. 647.
The Compensation Act establishes a scheme for compensation of an injured employee by the employer, and for the payment of benefits to a specified class of his dependents when the injury causes death. Where some person other than the employer is liable for damages for the injury, compensation is governed by section 33. Section 33(a) of the act (33 USCA § 933(a) authorizes 'the person entitled to such compensation' to elect to receive compensation or to recover damages 'against such third person,' and section 33(b) of the act (33 USCA § 933(b) provides that 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.'
In AEtna Life Insurance Co. v. Moses, supra, the widow of an employee who was killed in the course of his employment, and who was also his administratrix and the sole beneficiary under both the Compensation and the Wrongful Death Acts, elected to receive compensation. It was conceded that the widow, before her election, was alone entitled to the benefit of the Wrongful Death Act, and the question was who, in consequence of her election, was the proper plaintiff to bring the action. This Court held, construing section 33(a) and (b), that the Compensation Act, called into action by her election, operated to transfer to the employer all her right of recovery under the Wrongful Death Act. Since the transfer of her entire interest was effected by section 33(b), which in terms declared that acceptance of compensation by the dependent 'shall operate as an assignment,' we thought that a complete and unqualified transfer was intended, which would authorize the employer to maintain the suit in his own name, without necessity of suing in the name of the administratrix as in the case of an assignment of a chose in action at common law.
Similarly, section 33(c) of the act (33 USCA § 933(c) provides in terms for the transfer to the employer of 'all right of the legal representative' of the deceased employee to recover for the wrongful death, where the deputy commissioner for the compensation district determines that there is no person under the Compensation Act entitled to compensation, and the employer makes the payment of $1,000 into the special compensation fund as prescribed by section 44 of the act (33 USCA § 944).
A different question is presented where the dependent who has elected to receive compensation is entitled to only a partial interest in the amount to be recovered for the death. Such is the case here. For the widow alone has elected to take compensation, and under the Wrongful Death Act, § 3 (D.C. Code 1929, T. 21, § 3), the proceeds of the recovery are required to be distributed among the next of kin, which includes both the widow and the father, where the decedent leaves no surviving child. Title 29, D.C. Code 1929, §§ 284, 285, 288.