Ogino v. Black

Per Curiam. This appeal is from two orders which struck out separate defenses in the amended answer. [148] The complaint alleges that plaintiff, an employee of defendant, was injured while a passenger in an automobile owned and controlled by defendant and being driven in North Carolina at defendant’s request. Plaintiff alleges negligent operation of the automobile by another of defendant’s employees. The accident occurred in the State of North Carolina, but it has long been settled law that benefits under the New York Workmen’s Compensation Law may, in an appropriate case, be awarded for injuries occurring outside this State (Matter of Post v. Burger & Gohlke, 216 N. Y. 544). In his answer defendant interposed three separate defenses: (1) Plaintiff’s exclusive remedy was under the Workmen’s Compensation Law of New York; (2) Plaintiff had elected to accept the benefits of that law; and (3) Plaintiff’s exclusive remedy was under the Workmen’s Compensation Law of North Carolina. On October 28, 1947, his claims having been controverted by his employer’s compensation insurance carrier, plaintiff obtained a hearing before the Workmen’s Compensation Board of the State of New York. Plaintiff alleges that he took proceedings to bring the defendant before the board and that defendant testified at the hearing. Thereafter, the board disallowed the claim, ruling that the claimant’s disability “ did not arise out of or in the scope of his employment.” On motion, the first two defenses were then stricken as sham, but the motion was denied as to the third defense. On reargument, the third defense was also stricken. Defendant appeals from both orders. It is clear, in the light of the decision of the New York Workmen’s Compensation Board, that the first two defenses are sham and must be stricken. The employer, having successfully contested the claim filed by his employee under the New York Workmen’s Compensation Law on the ground that the accidental injuries complained of did not arise out of and in the course of the employment, cannot now interpose as a defense to an action in negligence brought against him by that employee that the Workmen’s Compensation Law of this State is the sole and exclusive remedy. The court below erred, however, in striking the third defense that plaintiff’s exclusive remedy was under the Workmen’s Compensation Law of North Carolina, where the accident to the injured employee occurred and where, the affidavits indicate, the employer complied with the requirements of the Work [149] men’s Compensation statute and carried the necessary insurance thereunder. The third defense is sufficient in law on its face, if the North Carolina Workmen’s Compensation Board might now entertain a claim by plaintiff, despite the existence of the adverse decision of the New York Board. North Carolina is not bound to follow the decision of the New York Workmen’s Compensation Board under the full faith and credit clause of the United States Constitution (Industrial Comm. of Wisconsin v. McCartin, 330 U. S. 622). The issue therefore boils down to whether the North Carolina board, under that State’s established rules of res judicata, would nonetheless treat the ruling of the New York board as binding on the parties. If the question adjudicated between the parties had been a pure question of fact, that adjudication would bind the parties thereto in any subsequent litigation. But the issue whether or not the injury arose out of or in the course of plaintiff’s employment is not a pure question of historical fact, like the identity of the driver of the vehicle, or the geographical location of the accident (see Brown, Fact and Law in Judicial Review, 56 Harv. L. Rev. 899, 903-904 [1943]). It involves, rather, the construction of specific language in a specific statute and application of that language, so construed, to a group of evidential facts. The Supreme Court of North Carolina has expressly held that this question is a mixed question of law and fact. (See Ridout v. Rose’s 5-10-25 Cent Stores, 205 N. C. 423.) The decision of the New York board therefore adjudicated only that plaintiff’s injury did not arise out of or in the course of plaintiff’s employment within the meaning of those words in section 10 of the New York Workmen’s Compensation Law. It is unnecessary to determine at this time whether the New York board has power to make the additional, and distinctly separate, findings that an injury did or did not arise out of plaintiff’s employment within the meaning of the varying and frequently contradictory language of Workmen’s Compensation laws of other States. (See Verdicchio v. McNab & Harlin Mfg. Co., 178 App. Div. 48.) The record of the proceedings before the board is not now before us, and the decision of the referee does not purport to construe any statute other than the New York statute with whose enforcement the board is expressly charged. The only question remaining therefore is whether an adjudication that an injury did not arise “ out of or in the scope of [150] his employment ” within the meaning of the New York law bars a plaintiff from applying for workmen’s compensation in another State. In transitory actions, such as negligence actions, a plaintiff may sue and have his entire cause of action conclusively adjudicated in virtually any jurisdiction in which the defendant may be found. But workmen’s compensation claims are not similar to transitory causes of action. (See Freund, Chief Justice Stone and the Conflict of Laws, 59 Harv. L. Rev. 1210, 1229 [1946].) The normal rules of bar and merger are therefore not uniformly applied thereto. (Restatement, Conflict of Laws, § 403.) Denial of a claim in one State does not necessarily bar a plaintiff from proceeding under the Workmen’s Compensation Law of another (Magnolia Petroleum Co. v. Hunt, 320 U. S. 430, 444; Smith v. Heine Safety Boiler Co., 119 Me. 552; Loudenslager v. Gorum, 355 Mo. 181, certiorari denied, 331 U. S. 816). Even after receipt of workmen’s compensation benefits pursuant to an award in one State, an injured employee may still be permitted to file his claim in a second State where greater benefits are possible (Anderson v. Jarrett Chambers Co., 210 App. Div. 543; Gilbert v. Des Lauriers Column Mould Co., 180 App. Div. 59; Industrial Comm. of Wisconsin v. McCartin, 330 U. S. 622, supra). It cannot therefore be said that the ádverse adjudication by the New York board will prevent plaintiff from successfully pressing his claim before the North Carolina board. Possibly, as alleged by defendant, the North Carolina Workmen’s Compensation Law may provide plaintiff’s exclusive remedy. The determination of this question must await an examination of North Carolina law at such time as the merits of this defense may be considered. For these reasons, the order below striking out the first two separate defenses should be affirmed, and the order on reargument striking out the third defense reversed, without costs.