156 N.Y.S. 615 | N.Y. App. Term. | 1916
On or about July 20, 1914, Philip Magrino sustained injuries in a collision between his employer’s truck, upon which he was riding, and one of defendant’s street railway cars. The employee subsequently elected to take compensation under the Workmen’s Compensation Law, and accordingly, pursuant to section 29 of that act, assigned his claim against the defendant to the plaintiff, the insurance corporation liable for the payment of the compensation. As assignee the plaintiff brought this action, and the trial court granted a nonsuit for the sole reason that, in the opinion of the court, the plaintiff in an action of this character is entitled merely to be indemnified for the compensation paid under the law to the injured employee, plaintiff having waived any such recovery and insisted upon the right to recover the same damages which the employee would have been entitled to if he had sued the defendant.
That part of the Workmen’s Compensation Law applicable is section 29, which reads: ' ‘ Subrogation to remedies of employee. If a workman entitled to compensation under this chapter be injured or killed by the negligence or wrong of. another not in the same employ, such injured workman, or in case of death, his dependents, shall, before any suit or claim under this chapter, elect whether to take compensation under this chapter or to pursue his remedy against such
The learned trial justice regarded the use of the word “ subrogation” by the legislature as controlling in the disposition made of the controversy. It is contended by the appellant that while ordinarily the word “ subrogation,” in technical parlance, connotes indemnification, the title of the section under consideration being “ subrogation to remedies of employee,” indicates that subrogation is used in its primary sense of substitution, so that the state or private insurer is after election made to resort to the act put in the same place the employee would have been if he had not availed himself of the provisions of the statute; and
“ The insurer, upon paying to the. assured the amount of a loss * * * insured, is doubtless subrogated in a corresponding amount to the assured’s right of action against any other person responsible for the loss.” St. Louis, etc., R. Co. v. Commercial Union Ins. Co., 139 U. S. 223, 235.
The general purpose of the statute is to establish a system of state insurance of employees engaged in hazardous employment, and to provide in connection therewith a system of indemnification of the state. That it does not contemplate an accumulation of sur
Construing section 29 in the light of the general purpose of the statute, it is evident, therefore, that the provision for “ Subrogation to remedies of employees,” and the assignment of the workman’s cause of action to the state, is for purpose of indemnification only; and it follows that the extension of the same provision to individual or corporate insurers is subject to the same limitation, namely, the full indemnification of the insurer, and no more. To hold otherwise would be to construe the act as requiring repayment by the state to employers of surplus funds derived from the prosecution of negligence cases by the state as the absolute assignee of injured employees, and permitting the retention of the surplus obtained in such cases by individual or corporate insurers. The statute surely does not contemplate the granting to individual or corporate insurers of rights inconsistent with the rights vested in the state under like conditions and inconsistent with the general purpose of the statute to be so construed as to open the door for speculative profit to the insurer, through subsequent litigation. Under both the common, as recognized in this state, as well as under the Personal Property Law (§ 41, subd. 1, formerly Code Civ. Pro., § 1910), a claim or demand to recover damages for personal injury is not transferable, and while there can be no question of the power of the legislature, by subsequent enactment, to specifically or impliedly repeal such provision of the Personal Property Law, the rules of statutory construction require that, so far as' possible,
The purpose of the statute now under consideration being the establishing of a self-supporting state insurance fund for the compensation of employees in certain classes of employment and for the fixing of the lowest possible premium rates for employers consistent with such purpose, section 29 must be construed
The judgment should, therefore, be affirmed, with twenty-five dollars costs.
Page and Philbimn, JJ., concur.
Judgment affirmed, with twenty-five dollars costs.