*1 CLARK, FRANK, CHASE, Before EASTERN HEAGNEY BROOKLYN Judges. Circuit DIST. TERMINAL. CLARK, Judge. No. 249 Docket 21988. Circuit summary appeal judg This is Appeals, United States Court dismissing against ment action Circuit. Second Employers’ Lia his under the Argued June Acts, bility and other Federal 45 U.S.C.A. July 30, Decided seq., ground he had et §§ by acceptance waived federal remedies of awards under the York New Work Compensation undisputed men’s Law. It is plaintiff accepted payments under orders the New York Workmen’s Compensation Board, and made no Acts, upwards Federal until years injury. con two issue below, in some detail on sidered both rehearing and on in extensive judge, memoranda the district D.C.S.D. N.Y., F.Supp. plain was whether deny circum tiff could waiver under the shown, representa including his stances por tion counsel over considerable time, upon present asser tion of the tion fed that he had not understood his greater part argu rights. eral appeal ment on this has concerned this Frank, Judge, Circuit dissented. issue; but since raises satisfaction,” issue without of “no accord directly validity we shall examine Compensation York Law New Workmen’s 113, McK.Consol.Laws, 67, gave c. which authority proceed to its Board to in cases subject injuries laws “in to federal claimant, case the and the admiralty carrier insurance waive their rights reme interstate commerce dies.” January 21, injured on
Plaintiff atop working as a hostler one while in the latter’s locomotives of defendant’s Brooklyn, Yard Kent Avenue grease, fell to slipped He on some York. injured. and was He was ground, days hospitalized account of for twelve days after he went A few the accident. signed a statement for defendant home he saying: “I describing the accident Walls, City, my employer York suing of New intention of A. have no Carlton voluntary compensa- take going plaintiff-appellant. tion.” City Curran, E. Robert City, February 17, 1947,compensation Curtin, of New On (Thomas P. began defendant-appellee. ments maximum rate allowed brief), *2 March a week. On rate law, A clerk reduced of $25.08 a week. $28 compensa- 24, 1948, again found that Compensa- it was of Workmen’s no award paid in full and tion had been papers filed from the tion Board concluded claimant failure of voluntary was made to then “due question be a of that there reopened hearing.” this was per- to But was attend compensation, since defendant payments from to and ordered March haps commerce. So engaged interstate week, di- at a with the question and $18 the carrier was notified of June payments.” A May rection “carrier to continue Board for hearing a was with plaintiff hearing further held given was In the notice June plaintiff present, when “Purpose both of Hear- and counsel stated that the his it was mechanic, Todd, one master defendant’s ing” “Question of At was Jurisdiction.” plaintiff work was testified to the kind of referee announced hearing the Board’s “question juris- doing defendant at for time that it of concerned At counsel was allowed representative accident. this time diction.” Defendant’s then “No, attorney’s fee A still later paying are of $25. said: we waive that. We 28, 1948, hearing occurred on October man Defendant also asked $28.” of with date of Notice Decision and working, tiff if to which the he was re- Award, 4; “No,” contains ply was also filed November latter that he had not a statement, up papers. Thereupon early claim or to calen- any “Continued written that his dar.” Plaintiff asserts counsel referee a record in usual form possibility Award,” learned of the federal entitled of Decision “Notice and through claim with which under the section “Decision” casual conversation marked “Accident, notice, attorney stated: another on December causal relation any January At Case rate on he notified established. continued.” The mean- he making of “continued” form defendant that as noted on the the federal law had the case closed substance that would a there payments prejudice” Board, rate, before the continuance of at the “without thus opportunity saving with his to possibility hearing later client the re- appear any payments for reason disability, determine extent of further if any. required. appéar should There copy Plaintiff to have received this notice, hearings been at least six the others from the Board— the Board. appearance of four after counsel—and pay- Defendant continued maximum four all orders of carried out ac- ments hearing July 15, until cording to their terms requested it when hearing another ’ interrogatories asserted, being plaintiff informed that was able Defendant Dy plaintiff Accordingly finding substantially agreed, work. was made and it paid July stating through the Board on that com- had its insurance car- him— rier, pensation paid Indemnity had been in full Fireman’s Fund for Co.—a 23-5/6 weeks, $667.33, $2,729.02, $2,296.57 payments or a total of total of which stopped in the form of and the re- “claimant able to work.” because expenses maining for medical September 25, $432.45 plaintiff On informed the hospitalization.1 In one its affidavits he lawyer, defendant that had retained a suggests defendant also who represent counsel continued position change of was because of his up through appeal. him Coun- this sought handwriting of “the hearing Board, sel another observation wall,” to challenge about which on since was October 15 rendered decision plaintiff ordering payments payments, as “regularly at the continue asking rehearing below, however, Since the Board’s records show that at plaintiff asserted that were no the time the June compensa ments after June a total then that, view, page accepted $1,828.57 weeks, tion of this F. for 73-1/3 Supp. suggest $18 hearing. week continued' until the final recovery long period, during employed years counsel over since actual, potential accident,” yet rights, claim- the was still recovery.” anyone with client ing compensation “despite perfectly obvious willingness legal training, and where alleges slightest Defendant further *3 payments is any suggestion to of fraud concealment make and all no lawyer part em- required may by any of from the of which he orders genuine no issue ployer. Hence there was State Board. only ques- and the to the fact complaint plaintiff In claimed herein validity. as to its tion which remains is $80,000 for in- damages in the amount of pqint that on this is Plaintiff’s claim juries fall. The answer sustained from his insufficient; any there event waiver is engaged was admitted satisfaction,” meaning be an “accord and commerce; but, to in addition interstate by- duly thereby a “final award” negligence usual defenses denial accepted. And he contends contributory negligence, as- plea it Board, case closing the the last act of the New York statute. serted waiver under the prejudice” proceed- to further “without deposition After of the answer and requirement. For ings, does not meet this trial, the answers to taken before dis- this he cites some cases—hereinafter affidavits, numerous interrogatories, and pertinent under earlier cussed—more transcript proceedings of the including law. But we consider before Board, file, all on State federal precedents, we should turn to York Judge motion for granted defendant’s all, because, be authority, that must summary judgment as indicated above. right. in a of federal prevailing matter participa- as to the addition to facts proceed- tion in the counsel explicit is, indeed, in the Fed- This 1947, September 25, ings from until clos- 5, Act Employers’ Liability 45 U.S. eral case before the Board on 55, any “con- Janu- makes void C.A. § 1949, 'by ary 6, was it established answers regulation, tract, rule, or device whatso- September 29, on interrogatories to liability. exempt carrier from ever” 1947, requisitioned the plaintiff’s counsel Supreme Court construing Act the alia, inter in- containing, file Act, in the nothing held that jurisdic- formation as particular section, operates pre- this by May, tion Counsel asserts claim vent an otherwise valid of a release he not examine the file affidavit that did Pennsyl- employee. Callen a railroad additionally point that even 332 vania R. U.S. 68 S.Ct. i; he did client should not bound. We 92 “It L.Ed. 242. The Court said: judge, however, agree the trial who with not release a device obvious is accept plaintiff’s own claim willing liability is exempt but a means of understanding^ that he did not waive his compromising liability a claimed and to (cid:127) represented rights before federal he recognizing possibility. extent its by counsel, thought long- no controversies exist as whether Where appeared. er once counsel liability, much, tenable When if so for there is how came into casé and conducted (cid:127)counsel Congress has not said prosecution many months, over litigation.” settle their claims without signalized page 631, increased or pages obvious success at at S.Ct. And, awards, only to raise this additional issue there while was dissent end of at a late date when the state com- in case division in the Court apparently pensation approaching, question was not over the whether re- longer any possible upheld all, there should should be at lease but as to as to If is ever possible doubt waiver. the fairness of the release or how legal any we claims in it should be tested who should settlement fraud proof. question must be in a case the burden of That feel that such as have hardly arise a claimant before an in itself can here when the this where adminis- employee’s adequately represented provisions for the benefit trative board Analysis cases, statutory law we fair of the New those set as recog- think, these expressly This case was re-enforces conclusions. state. Boyd statutory supra adding later case of v. Grand addition to nized in the provision 338 U.S. for waiver came in 1922 Trunk Western page 266, Fitzgerald where and is considered in Harbor 94 L.Ed. S.Ct. 132, 135, 136, distinguished Lighterage “We Court said: N.Y. Cardozo, per to 155 enabling Discussing N.E. J. prior points which the dispute litigation, cases, without he in Bras settle their out that Act,” America, sel Welding Electric held did not contravene the ofCo. action, venue the restriction on N.E. a final award *4 accepted by invalid. is thus clear which was held It claimant was held an par- compromise satisfaction, enabling extinguishing accord and “a full dispute litiga- ties their without cause for for the same damages to settle maritime injuries, appropriate tion” is valid. while in & T. 239 ac N.Y. note, too, continued It is desirable ceptance of an award final at most upon “compromise” the Court stress of satisfaction, accord and not a leaving contention here that be- in view damages cause for unextinguished. adjustment fore we can some valid binding The latter case would be unless must find some sort of satis- rights, we changes previously new statute many beyond the months’ faction rule; existing unnecessary “we find it actually Board awards as made. to determine whether in waiver accord Quite point, therefore, is Professor in supersede ance with this section would of com- enlightening discussion Corbin’s remedy admiralty” complete in because a promise agreements their connection waiver involving claimant, employer; says: executory accords. Thus he insurance carrier not been shown. “By speaking in terms of thinking and concurred; Three judges Judge (later Chief ‘compromise,’ existing in befuddlement in opinion, Judge) dissenting Crane filed regard ‘executory avoided.” accords’ is Judge Judge Mc which Chief Hiscock and Hence, 6 Contracts 1268(1951). Corbin on concurred, validity Laughlin upholding the out, a com- points as he statute full. promise furnishing an sub- agreed-upon turn, which, performance stitute for only case in the Court of This is specific may require performance, although statute; considering the it has Appeals reasonably clear that generally may unnaturally, by accepted, not later “only when intend cases, It impugning as not statute. performance is rendered.” upheld several cases within has been for, therefore, a fair pay must look admiralty jurisdiction What we but for their compromise whereby settle state awards. ments dispute litigation Dry Co., Repair for the substitution Morse Dock & Kane v. Acts; permitted by the Federal there is App.Div. appeal 295 N.Y.S. mystic- significance no be accorded a 13 N.E.2d dismissed 277 N.Y. upon some “final assumed “satisfaction” remittitur denied 277 motion to amend procedure accom- award.” When 205; Dry Turner v. Morse 14 N.E.2d by agreement con- plishes just- of all Repair Co., App.Div. 896, & Dock cerned, therefore be at least as it should 456; Haglund Dry v. Morse N.Y.S.2d formal release secured on as a valid App.Div. 895, Repair Dock & And cer- hundred 465; a few dollars. Agne ment of Dry v. Morse Dock 7 N.Y.S.2d App.Div. 897, distinction should be tainly no invidious Repair 7 N.Y.S. temporary Ry. Co., purely 467; in- Ahern v. South Buffalo 2d made so 1067, 100 App.Div. way, N.Y.S.2d 639. and that 277 jury be settled in this can cases, us, in the one injury is these excluded from any permanent continued long ac process had been just because -the state settlement Board; awards made payments ceptances of continuing requires good for the occasion, had no as we have employee. the courts injured FRANK, (dissenting). less than Judge how much Circuit none, to determíne officially adjudi- acceptance of continuous My colleagues’ 1.' discussion actually might-be shown cated awards suf- .his “validity” plaintiff’s “waiver” state statute satisfy ficient later. “federal consider remedies” shall ' n federal law. . analysis col- For think .on opinion, leagues’ “waiv- discussion of York, O. & Wyatt New case Our proves er” con- irrelevant-to their ultimate certio Cir., 45 F.2d R.W. down, conclusion, clusion. .That boiled York, Co. O. & W. R. denied New rari , . comes this: 353, 75 Wyatt, 829, 51 S.Ct. (1) From time when law opposed. There at all is not L.Ed. yer participated pro in the State agreement of with an deal , ceedings knowledge of the-nature of providing which in itself imputed proceedings those addition to the payments for future —in plaintiff. already on to four weeks covered—went state that the should constitute (2) Therefore, on, that time complete Further, accord. *5 impliedly full position: tiff- was He in this repudi claimant award since the agreed claim under accept, in lieu of his any action was agreement ated the statutes, Board whatever the the federal construing the Board. taken the subsequently and already awarded “Ordinarily agreement Judge Swan said: payment him full due would him as executory an ac constituting contract an from defendant. upon bar to an action the is not a cord lawyer’s -par- (3) and after Before claim; is, ‘satisfaction,’ that full original partial awards ticipation, plaintiff received accord, performance is of the contract of from the Board. parties intend, necessary. If the so also payment by plus de- (4) agreement, His may accord itself taken contract be the portion those fendant of a substantial orig and as a satisfaction or partial awards, constituted a release clear, claim; the intention inal compromise” “full of whatever he presumption To is otherwise.” and the otherwise suit recovered have Williston, Contracts he cited this statutes, §§ constituted federal thus 1847; now the reference Corbin Con plaintiff's complete present defense to supra And stress should added. tracts suit. presumption should be the ing that consequently immaterial that (5) It employer draws the stronger where determined, pur- Board has never presents employee it to an document determine, de- ported amount contracts, making in the little versed pay plaintiff. fendant should could that the contract not there he held (5) doctrine. (4) and novel Points operate itself as sufficient to be construed support Undoubted them.2 precedents No Thus the court did not discharge. aas plaintiff, can effec employee, like ly, an effect of a series of awards pass upon the consideration, release tively, for a fully complied by the (although statutes federal under the rights the insurance carrier and employer and Court, construing 5 of F.E. Supreme employee. accepted be most L.A., requires such a that release scrutinized).3 Supreme In the carefully
Affirmed.
applicable
injuries
to re
decisions,
doctrines
discussion
2. See
i.e.,
generally,
have
the courts
leases
infra.
ready
employees
relieve
more
Thompson,
Williston,
See
Con
S.
their releases.
3. Duncan
(Rev. ed.)
and cases cited
86 L.Ed.
Ct.
tracts
Pennsylvania
laxly applied
Ricketts
to em-
courts
personal
Cir.,
766 note 30.
153 F.2d
ployees’
claims
releases
cite,4
pleaded
ar
Although
my
colleagues
which
Court case
case,
object
con
gued
my colleagues
employee gave a release for a sum
amount,the
parties
sidering
terms of “accord and satis
it in
represented the full
faction,” despite the fact
with an
this
part payment
agreed upon
a—not
case,7 and
has thus considered a similar
understanding that
subsequently
highest
court of New York
payments of amounts to be
I
yet
quibble
done
But
not
not
likewise.8
shall
determined
the basis of facts
accept
terminology.
my
I
colleagues’
a about
assume, arguendo,
ascertainable.
phrase
compromise”
use of
agreed
“full
good
parties
release would be
if the
Corbin)
(borrowed
their suggestion
amount,
employer
the full
may
compromise
be a
“there
furnish
balance
part payment,
perform
agreed-upon
substitute for
practically
assume
assured.5
also
ance,
although
be reason
generally
(1)
it would
suffice
ably
person
clear that
intend
dis
agreed
designated
third
charge
per
‘only
to be
the full amount
when
should determine
”
release,
For,
formance
col
paid by
(2)
is rendered.’
for the
determine,
(3)
leagues
concede,
effect
person
revised
the third
did so
this,9
calls,
terminology
Suppose,
how-
still
a case like
assured.
ever,
person
“I have for
the third
heretofore has been
announced:
what
labeled “satis
faction,”
e.,
pay
performance
actual
determined
shall
$2,000,
employee
weekly
“agreed-upon
fact,
instalments
substitute.”
de
$25.00,
“performed”
fendant
yet
but I
here
have not
determined
has.
*6
paid
partial
latest
whether,
much,
for,
judge
be
trial
or how
more
as
shall
found,
payment,
payments pur
full
I
bring
about
shall
defendant made no
until,
suant
award
do
sufficient
to that
after
But
able
a
1948.
June
time,
pass
assume,
lapse
I
I
point,
can
that
ascertain the extent
since I shall
that,
employee’s disability.”
that, arguendo,
here,
I think
facts
circumstances,
may
equal
in such
be regarded
payment
there would
to the
compromise”
“full
“agreed-upon
release or
But
which
substi
thereof.10.
employer,
pursuant
here,
think,
be,
minimum,
if sued
tute”
to the federal
at a
statutes,
effectively
up
could
a Board
as a com-
award or awards of the amount
plete
Payment
e.,
payment
full,
defense.
or award of the
Board considers
in
i.
partly
what the
“final
yield
amount
courts call a
determined
partial defense,
e.,
part
award.”
adopt
defense
If
then we
the revised
payment
to be deducted
terminology,
necessary
from the sum
it is still
de
that
which
court might
prove
fendant
owing
find
least that the
had
Board
person happens
e.,
That here the
tiff.
third
made a
“final” award —i.
had reached
moment,
be an
entity
official State
is
announced the conclusion that
of no
defend
try
as I
beyond
shall
to show
ant
pay nothing
need
later.6
Pennsylvania
4.
Callen
R.
8.
T.
332 U.S.
239 N.Y.
430; Fitzgerald
301-302,
68 S.Ct.
9S3 jurisdiction independent of colleagues’ ficacy is ly, along go unwilling parties.” coerce held of the board to had courts decision, if the N.Y. means T. statute 113 of the that § had ac- N.E. compromise, or release, that a or full be in agreed was to like cord satisfaction of a Compensation accordance with the (ex- agreement state (1) an tiff’s arises might by the awarded Law and as Board’s press implied) abide award. had made no Board. The Board awards, (2) together with part However, had made IBut think partial awards.16 issuance of pay bal- willing was not held. those courts have ance, employee to re- but the had refused 113, made the amendment Whether it, ceive The court brought and had suit. deal with the sub intended to was It said held the be maintained. suit ject discharge or of release or inapplicable, the New York statute language The highly doubtful. part “The agreement, only. Be “waiver” (cid:127)amendment is void, procedure law, was unless indicated, amendment, it had been fore preserved it under com- vitality can be Doey Howland Clarence P. in Matter of * ** governing mon-law contracts. rules 30, 35, 1918, 224 N.Y. to an agreement may have amounted The empowered the accord, would amount except act in intra-state cases. Board to distinguished its a satisfaction.” purpose seems of the amendment So decision, supra, ground on the Brassel merely If the to have been this: there “The amount of' the award was request, permis the state’s Board has paid accepted”, though “even so that cases; sion act in maritime and interstate void, yet acceptance of the award were action left to legal effect of such * * * payment” award in full mind, I With that in turn to courts. “an accord and satisfaction.” Fitz- my col the New York decisions cited gerald Lighterage 244 N.Y. Harbor leagues. 74, 75, there had been a N.E. rendered in Board; Two such decisions were submission to the it had made two facts, where, the amendment awards, cases case had been apply. calendar”, In Brassel v. placed adjustment 113 did not “on the final Co., 239 Welding employee Electric brought when the suit. full, N.E. the Board had made a court held he maintain It referred could it. final, period for a short of dis holding Brassel case as that “a final ability, it in accepted award when the claimant anis *8 employee satisfaction”; the The court that, sued. accord and it said “On precluded hand, held that these facts his suit. Larscy other the held in v. T. (per Cardozo, J.) 298, The said “The : & court 239 N.Y.
question 430, not whether the award acceptance has of an award not final adjudication. binding accord, the effect of We at an is most and not a satisfac- void, that, tion, assume that it is with the result the cause of * * * unpaid, might least while action continues unextin- Doey disregarded. 113, Matter of set aside or guished”.17 Turning to amended § Inc., Co., 224 P. Howland v. Clarence the court said of lack of because 30, question The waiver, 120 53. is whether proof unnecessary N.E. “We find it * * * action has survived collection right to determine whether this sec- supersede remedy tion would pro and the retention ad- award miralty.” Fitzgerald, highest Since say court went on to ceeds.” The has thus resulted in New never considered “The transaction an ac § viewed, So cord and satisfaction. ef- Emphasis perhaps, payment partial Or, of such added. awards.
984 pursuant to a final following: jurisdiction, payments teach the decisions Its three employee’s to an receipt awarded award of death benefits plus A Board award they Dry Dock except In Kane v. Morse payments widow. have no effect Co., 888, Repair App.Div. N.Y.S. discharge; 295 250 law release or create common 118, employee’s upon 113, (3d Dept.), nothing less 119 aside from amended § death, award there had been will result in a com- than a final award18 final paying the After whether, under 1919 to the widow. discharge; mon law years, the par- eighteen amounts awarded for coupled with amended § employer sought payments payment, to discontinue tial awards and even with their court, jurisdiction. want Board law release or has the effect of a common case, held citing Fitzgerald 113 and discharge question highest is a right that the “waived his York court has not answered. * * question jurisdiction In heretofore inter Our court has twice Co., Dry Repair Haglund Morse Dock & preted decisions. foregoing App.Div. 895, (3d 255 466 7 N.Y.S.2d Co., Wyatt Ry. v. New York & W.O. death, employee’s Dept.), again, Cir., 705, 708, citing 45 three F.2d those periodi- Board had made an award of decisions, “If the accord had been we said: payments wid- cal benefits to the death point procuring a final executed to the facts no further award On these ow. say board, not now we will award the award could have been so that might enough that that not have been paying was final. for about seven- After to sub original years, teen discontinued rights stitute therefor under the award. ap- quote ments and “made (to court) Perhaps fairly such intention an plication to the board aside bar; per found in the but no agreement at claim,”19 award and dismiss enough.” formance short of this was ground jurisdiction. sole of lack of Board Y., Hoffman N. N. H. & H. denying relief Board’s decision Cir., citing 74 F.2d cited the affirmed the court. It partial case we said: “The court held that supra, case, and referred to Kane * * * where but seems to have rested its decision on jurisdiction the commissioner had “equitable estoppel”; “by it said that subsequent not a bar action recover lapse depend- of time the condition of the damages personal injuries.” changed ent rights and all and remedies The decisions of the lower New York prejudiced other than herein have been discharges in such impaired court, courts sustain cases thereby.” The same time, when there awards. similarly have been at the Agne decided final Stevedoring In Brancoleone v. Northern Repair Co., Morse Dry Dock Inc., App.Div. App.Div. 231 N.Y.S. 467, saying N.Y.S.2d Dept.) (1st questions Board “The same It involved”. awards, employee brought suit. The Dry also then decided Turner v. Morse court said: “We think the answer to the Repair Dock & App.Div. question depends in this instance wheth- question N.Y.S.2d where again *9 was the er or not was a award.” Hold- same. In there final Ahern v. South Buffalo Ry. Co., App.Div. 1067, not, citing the Fitz- N.Y.S.2d (3d Dept.), case, facts inade- gerald the court decided that the em- quately stated, paragraph opin- in the one ployee Appellate could maintain suit. The ion, Department, it is Division, just difficult tell Third what decided they were, perhaps cases, they involving an five each effort preceding cases, as in the employer, lapse many years, although after the (cid:127) partial discontinue, have been a only. of lack of Board because added, acceptance Emphasis Plus, perhaps, the claimant’s payment. case, spoke of Haglund court cited conduct employer’s “gross laches and widow.”
prejudicial to the
Thus, decided all cases possible (with the
lower York courts a final
exception Ahern) there was em
award, e., an award of all that pay, nothing more to
ployer pronouncement is
be awarded. latest Sup., Meaney Keating,
a dictum in Court, Trial (Supreme
N.Y.S.2d Term, acceptance 1951) : “It jurisdic made without non-final
tion, which is deemed an accord but
satisfaction,” citing Fitzgerald anil think, therefore, cases.
cannot New York rule is be said under amended even receipt payments, pursuant
awards, plain constitute a Consequently, I
tiff’s would reverse claim. judgment defendant, summary
remand case for trial.
KEENER & GAS CO. CONSOLIDAT- OIL ED UTILITIES CORP. GAS
No. 4241. Appeals Court of
United States Tenth Circuit.
Aug. 1, 1951.
Rehearing Aug. 24, 1951. Denied