302 N.Y. 545 | NY | 1951
This is an action in equity for an injunction against further prosecution of an action at law and for additional equitable relief.
In the law action: The plaintiff is Gladys Elizabeth Cochran. As administratrix of her deceased husband, she sues to recover damages for an asserted negligent act which allegedly caused him conscious pain and suffering and resulted in his death. The defendant is the Delaware and Hudson Railroad Corporation. We shall refer to it as the D. & H. railroad.
In this equity action: Western Union Telegraph Company is the plaintiff. We shall refer to it as the telegraph company. The above-named Gladys Elizabeth Cochran as administratrix of her deceased husband is the defendant. At the times here in question, her husband was an employee of the telegraph company. We shall refer to Mrs. Cochran as the administratrix and to her deceased husband as the intestate.
The intestate was fatally injured July 21, 1947. He was then handling a gasoline motor car in the course of his employment by the telegraph company. The motor car belonged to the .telegraph company but was being operated upon the tracks of the D. & H. railroad pursuant to permission granted by a 1938 contract which bound the telegraph company (among other things) to save the D. & H. railroad harmless from any liability for death of an employee of the telegraph company occasioned in such circumstances.
A. S. COCHRAN
Signature
2-15-45
Date
J. M. Weight
Witness ”
The telegraph company has long been and is now a self-insurer under the New York Workmen’s Compensation Law. Agreeably to an order made under that statute by the Workmen’s Compensation Board, the telegraph company since November 12, 1947, has paid and the administratrix of the intestate has accepted death benefits awarded to her and to her children. Even so, the administratrix brought the above-mentioned action at law against the D. & H. railroad, with the result that the railroad requested the telegraph company to defend that third-party death action and to save it from liability therein, pursuant to the 1938 indemnity agreement to which we have adverted. Then the telegraph company commenced this equity action to enjoin the administratrix of the intestate from further prosecution of her third-party action against the D. & H. railroad and to compel her to carry out the above-quoted agreement made by her intestate with the telegraph company.
The relief so demanded was granted by the court after a trial at Special Term, but upon appeal to the Appellate Division by the administratrix, the judgment of Special Term was reversed and the complaint dismissed and we now have the case upon an appeal by the telegraph company from the judgment that was entered upon the Appellate Division’s order of reversal.
The decisive question is whether the above-quoted agreement made by the intestate with the telegraph company on February 15,1945, can be given legal effect. In our judgment, the answer is supplied by section 29 of the Workmen’s Compensation Law. In substance, it is thereby provided: The right to compensation or benefits under the Workmen’s Compensation Law shall be the exclusive remedy to an employee, or in case of death his dependents, when such employee is injured or killed by the
To our minds the meaning of the above provisions is not open to question. When, as in this case, a third party has negligently caused an employee’s death, ultimate liability to his dependents is cast by the statute upon that party. Here, as it happens, a self-insured employer has agreed to indemnify the negligent third party against its responsibility. But the statute does not allow the remedies of the intestate’s dependents to be diminished on that account. Hence the contract made between the intestate and the plaintiff telegraph company was wholly void and for that reason the Appellate Division was right in dismissing the complaint in this equity action.
The judgment should be affirmed, with costs.
Lewis, Conway, Desmond, Dye, Fold and» Froessel, JJ.. concur.
Judgment affirmed.