(dissenting).
I am unable to agree in the conclusion of the court.
Petitioner (appellant) was employed by the Palais Royal Company of Washington as a helper on a delivery truck. Intervener was the insurance carrier. Petitioner was injured in the course of his employment — there was a collision between his truck and a street car — and elected to sue the alleged third party wrongdoer. In apt time he filed with the Deputy Commissioner notice of his election and of his purpose to claim any deficiency between the amount recovered and the amount he might be entitled to receive under the Compensation Act. This was all done in exact accordance with the provisions of the act.
On the trial of his action against the street railroad company he obtained a verdict for damages, on which judgment was entered. On appeal, we reversed the judgment, and certiorari was thereafter denied by the Supreme Court. Petitioner then made application to the Deputy Commissioner for compensation. The employer and the insurance carrier (intervener) answered and objected to an award on the ground that the deputy had no jurisdiction because petitioner had not exhausted his third-party remedy. At this point, the record shows that the deputy, obviously in doubt, adjourned the hearing until the question of “court procedure” was definitely determined.
Petitioner thereafter, through his attorneys, moved the Supreme Court of the District to allow him to proceed in the law action without the payment of costs, alleging in support of the motion that he had been unable to work since his injury and was without the means of paying the costs of the litigation. The judge of the lower court before whom the action was pending denied the motion — I have no doubt, only because he considered the further prosecution of the action bootless, and suggested that petitioner claim compensation under the act. Petitioner thereupon submitted an order of discontinuance, which wa s entered, and he again applied to the deputy for compensation. At the conclusion of this hearing the deputy entered an order refusing his application on the ground that petitioner not having prosecuted his third-party remedy to completion, i, e., having discontinued his third-party action, and the statute of limitations having run, the rights *236of the employer, to subrogation were prejudiced and petitioner’s right to compensation lost.
Petitioner then applied to the Supreme Court of the District for a mandatory injunction, which-being refused, he appealed to this court.
I think the writ should issue. The statute (Act of March 4, 1927, § 33, 33 USCA ■§■933) provides:
“(f) If the person entitled to compensation or the representative elects to recover damages against' such third person a-nd notifies the commission of his election and institutes proceedings within the period prescribed in section 913 of this 'chapter, the employer shall’be required to pay as • compensation under this chapter a sum-equal to the excess of the amount which the commission determines -is payable on account of such injury or death Over the ■amount recovered against such third person.
“(g) If a compromise with such third person is made by the person entitled to compensation or such representative of an amount less than the compensation to which such person or representative would be entitled to under this chapter, the employer shall be liable for compensation as determined in subdivision (e) only if such compromise is made with his written approval.”
Other than subsection, (g), supra, there is no provision in the statute which- makes final the-election of the injured to pursue the third-party remedy, and in that section the penalty is confined to cases of unauthorized compromise; so that the effect of our decision is to hold — wholly outside any express provision of the act — that if the dismissal against the third party results in prejudicing the rights of the employer, the latter cannot be required to pay compensation. Some of the cases cited in 'the opinion sustain this view. But even if . the proposition is conceded, I can find in this record no facts to justify its application. On the contrary,’ the record, as I ■view it, shows ■ affirmatively that the dismissal of the action did not and could not ■prejudice the employer or the insurance carrier, and this, for the simple reason that they lost nothing by it.
By reference to our opinion in the damage suit it will be seen that our reversal was on the merits and that we held, first, ■ that petitioner was guilty of contributory negligence, and secondly, that the street railroad company was guilty of no negligence at all. It is true we remanded the case to the Supreme Court of the District for a new trial, as we are required to do, but it is perfectly obvious from the language of the opinion that our decision was ■to all intents and purposes a final adjudication against the right to recover. While, .therefore, it may be correctly said that the litigation begun by . petitioner against the third. party was not technically concluded until further proceedings were had in the trial court, such' proceedings, if had, must necessárily have gone against petitioner except in the event he was able to make out a wholly different case; and the record in the hearings before the deputy shows nothing on which to base even-a conjecture to that effect but, on the other hand, shows that his main witness — the driver of the truck at the time of the collision — was no longer available because of his death.
In these circumstances, unless the whole purpose of the act be disregarded, the burden of showing loss or damage through the dismissal of the action ought to be placed on the • insurer; for unless' damage to it is shown, petitioner’s right to discontinue the third party action and claim 'compensation is unchallenged. To be discharged of its statutory obligation, the employer must show, not only the dismissal of the third-party action and the loss thereby of its right of subrogation but, in my view, must go further and show-that the lost right of subrogation resulted in damage to the employer. Here there is -no proof of any actual damage but, on the contrary, an inescapable conclusion there was none.
HITZ, Associate Justice, concurs in this dissent.