159 N.Y.S. 431 | N.Y. Sup. Ct. | 1916
The demurrer to the complaint must be sustained, with costs.
The question clearly raised in this case is whether, notwithstanding the Workmen’s Compensation Law and the compliance with all the provisions therein contained on the part of the employer, the employee engaged in one of the hazardous employments specified, claiming to be injured by his employer’s negligence, may recover by action compensation for personal disfigurement and for pain and suffering.
After the decision in Ives v. South Buffalo R. Co., 201 N. Y. 271, the Constitution was amended by the insertion therein of a provision which stated, among other things, that nothing contained in the Constitution should limit the power of the legislature to provide that the right of compensation to employees for accidental injuries and the remedy therefor 1 ‘ Shall be exclusive of all other rights and remedies for injuries' to employees or for death resulting from such injuries.” The power to enact such a law is here expressly conferred.
Thereupon chapter 41 of the Laws of 1914 was adopted.
It begins: ‘1 Compensation provided for in this chapter shall be payable for injuries sustained or death incurred by employees engaged in the following hazardous employments.” § 2. Not certain injuries. The intention is to provide, as the Constitution permits, for all the injuries suffered because of an accident.
“ The liability prescribed by the last preceding section shall be exclusive, except that if an employer fail to secure the payment of compensation for his injured employees and their dependents as provided in section fifty of this chapter, an injured employee * * * may, at his option, elect to claim compensation under this chapter, or to maintain an action in the courts for damages on account of such injury.” § 11. An 1 ‘ exclusive liability ’ ’ hardly needs definition. If, however, the master fails to secure compensation, an option is offered to the servant. He may claim compensation under the act, such compensation as the act offers; or he may sue for damages, including damages for pain and suffering. He cannot do both.
“ The employer shall promptly provide for an injured employee such medical, surgical or other attendance or treatment, nurse and hospital service, medicines, crutches and apparatus as may be required or be requested by the employee, during sixty days after the injury.” § 13.
“ Except as otherwise provided in this chapter, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon
Section 15 establishes the schedule of compensation. Where there is permanent partial disability certain specific injuries are enumerated and compensation provided therefor 1 ‘ in lieu of all other compensation; ’ ’ and then compensation is fixed generally for “ other cases in this class of disability,” or, as I interpret it, other cases of permanent partial disability.
It is true the words ‘ ‘ in lieu of all other compensation ’ ’ seem unnecessary if the interpretation given by me to the statute is correct, but it is not inconsistent therewith.
If a workman entitled to compensation under this chapter is injured by the negligence of another not in the same employ, the workman shall elect whether to take compensation under this chapter or to pursue his remedies against the other. If he elect to take compensation under this chapter his cause of action against the other shall be assigned to the state for the benefit of the state insurance fund or to the insurance carrier. § 29. Under such circumstances the servant clearly could not recover of his master for pain and suffering. What he recovers is compensation under' the act. Nor could he recover for such injuries against the third party. His whole cause of action against the latter is assigned to the insurance carrier.
An employer shall secure compensation to his employees either by insuring in the state fund or in an insurance corporation or by furnishing satisfactory proof of his financial ability to pay compensation himself.
The failure to secure the payment of compensation shall have the effect of enabling the injured employee to maintain an action for damages in the courts. § 52.
“An employer securing the payment of compensa
In view of these sections of the statute it seems to me that the legislature plainly intended to take advantage of the amendment to the.Constitution and to provide a remedy for the benefit of injured employees, exclusive of all other rights and remedies. The wrong which it sought to obviate was the constant litigation between master and servant with the uncertainty of its results. The act was designed to allay class feeling, to protect the master against annoyance and unjust
The whole object and purpose of the legislature would be overthrown if the servant might, after obtaining compensation from his master, as provided by the statute, then sue in the courts for further compensation because of disfigurement or pain and suffering.
My attention has been called to Shinnick v. Clover Farms Company, 169 App. Div. 236. I agree with the plaintiff that that case sustains his views. It is true that towards the end of the opinion the court states another reason for reaching the conclusion which it did. But clearly the Appellate Division of the first department unanimously held that the plaintiff’s contention is correct. That decision, however, was made on July 9, 1915.
On July 13,1915, the Court of Appeals handed down an opinion in Matter of Jensen v. Southern Pacific Co., 215 N. Y. 514. The case in the Court of Appeals was not and could not have been referred to by the Appellate Division. It seems to me that the decision of the Court of Appeals is made upon the theory that the Compensation Law provides a remedy for the employee engaged in the employments enumerated therein which is exclusive and in full substitution for any action for damages. I think, therefore, that it overrules the case of Shinnick v. Clover Farms Co., and should be followed by this court.
Ordered accordingly.