Lester v. Otis Elevator Co.

Guy, J. In this action to recover damages for personal injuries received by the plaintiff, an employee of [650] Bing & Bing, in the course of his employment, arising out of what may he termed common law negligence, judgment has been rendered in his favor against the defendant Otis Elevator Company. The work done by the plaintiff was hazardous employment within the meaning of the Workmen’s Compensation Law, and his employers, when the action was brought, had complied with all the requirements of the act as to providing insurance for their employees. Section 29 of the statute, is as follows: ■ “ 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 other. Such election shall be evidenced in such manner as the commission may by rule or regulation prescribe. If he elect to take compensation under this chapter, the cause of action against such other shall be assigned to the state for the benefit of the state insurance fund, if compensation be payable therefrom, and otherwise to the person or corporation liable for the payment of such compensation, and if he elect to proceed against such other, the state insurance fund, person or association or corporation, as the case may be, shall contribute only the deficiency, if any, between the amount of the recovery against such other person actually collected, and the compen: sation provided or estimated by this chapter for such cause. Such a cause of action assigned to the state .may be prosecuted or compromised by the commission A compromise of any such cause of action by the workman or his dependents at an amount less than the compensation provided for by this chapter shall be made [651] only with the written approval of the commission, if the deficiency of compensation would be payable from the state insurance fund, and otherwise with the written approval of the person, association, or corporation liable to pay the same.” Prior to the commencement of this action the commission had by suitable rules and regulations ordained the manner in which the election provided for in the foregoing section should be exercised; but the plaintiff brought suit without making the prescribed election, and the appellant claims that his failure to comply with the statute in this respect is fatal to the judgment. Under section 10 the employers were required to compensate for the injuries, even though caused by a third party, and section 11 provides that the liability prescribed by section 10 “ shall be exclusive,” except that if the employer fails to comply with the statute the injured employee or his representative may “ elect to claim compensation ” under the act or to maintain an action for damages on account of the injury, in which action the defendant cannot avail himself of the defenses that the injury was caused by the negligence of a fellow-servant or that the employee assumed the risk of his employment or that the injury was due to his contributory negligence. Although section 11 states that the liability prescribed by the statute shall be exclusive, I am of the opinion that this refers solely to the liability of the employer, and that the act does not prevent an injured employee such as the plaintiff from seeking redress in a common law action as against third parties causing his injuries. A consideration of all the provisions of section 29 in connection with other parts of the act indicates that to carry out the scheme of subrogation provided [652] "for in that section the “ suit ” referred to therein is any suit, whether pursuant to the act or otherwise ; that an employee sustaining injuries in the course of his employment through the acts or defaults of a party other than his employer, and suing such party, is required to make and signify his election in accordance with the statute and the rules and regulations of the commission as a condition precedent to the collection through the commission of any deficiency between the recovery in the action and the compensation provided for by the act; that no such election having been made by the plaintiff he has no right to such deficiency, if any, but that the failure to make the prescribed election in no way affects the judgment appealed from which should be affirmed with costs. Judgment affirmed, with costs, with leave to' defendant to appeal to the Appellate Division.