Clark v. Monarch Eng'g Co.

• Decision Date: 01 May 1928
• Citation: 161 N.E. 436,248 N.Y. 107
• Parties: CLARK v. MONARCH ENGINEERING CO.
• Court: New York Court of Appeals Court of Appeals

248 N.Y. 107

161 N.E. 436

CLARK

v.MONARCH ENGINEERING CO.

Court of Appeals of New York.

May 1, 1928.

Action by Lena Clark, as administratrix of the personal estate of Frederick E. Clark, deceased, against the Monarch Engineering Company. A judgment for plaintiff and an order denying defendant's motion for a new trial, made on the judge's minutes after verdict for plaintiff (129 Misc. Rep. 145, 221 N. Y. S. 93), were affirmed by the Appellate Division (222 App. Div. 713, 224 N. Y. S. 773), and defendant appeals.

Affirmed.Appeal from Supreme Court, Appellate Division, Fourth department.

George P. Keating, Ray M. Stanley and Seward H. Millener, all of Buffalo, for appellant.

Karl A. McCormick and Frederick G. Bagley, both of Buffalo, for respondent.

LEHMAN, J.

The plaintiff has recovered a judgment against the defendant for damages resulting from the death of plaintiff's husband caused by the alleged negligence of the defendant. At the time of the accident the plaintiff's husband was performing work, as an employee of a subcontractor, in the construction of a building. The defendant was the general contractor. Upon this appeal the defendant directs its attack upon the judgment on the ground that the liability imposed upon a general contractor under section 56 of the Workmen's Compensation Law (Consol. Laws, c. 67) is ‘exclusive and in place of any other liability whatsoever.’ Workmen's Compensation Law, § 11.

Section 10 of the Workmen's Compensation Law provides:

‘ Liability for Compensation. Every employer subject to this chapter shall * * * secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of the employment. * * *’

Section 11 provides:

‘ Alternative Remedy. The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever. * * *’

By force of these provisions a twofold liability was imposed upon an employer subject to the Workmen's Compensation Law. He must ‘secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of the employment.’ Such an employer who has secured compensation is not subject to any other liability.

There can be no doubt that, when these sections were enacted, ‘an employer subject to this chapter’ included only a general or special ‘employer,’ as that term is generally understood and defined in our law. A contractual relation with the employee is involved. Here the workman who sustained injury resulting in his death was employed by a subcontractor. It is not claimed that the general contractor either hired or had the right to direct him. Concededly, section 10 of the Workmen's Compensation Law imposed no obligation or liability upon a general contractor in favor of the employees of a subcontractor.

Section 56 of the Workmen's Compensation Law, enacted in 1922, did impose a liability theretofore unknown in our law upon a general contractor. That section provides:

‘ Subcontractors. A contractor, the subject of whose contract is, involves or includes a hazardous employment, who subcontracts all or any part of such contract shall be liable for and shall pay compensation to any employee injured whose injury arises out of and in the course of such hazardous employment, unless the subcontractor primarily liable therefor has secured compensation for such employee so injured as provided in this chapter.’

That section still leaves liability to secure and pay or provide compensation to an injured employee or his dependents primarily upon the subcontractor who employed him. It places, however, a secondary liability to pay compensation upon the general contractor, unless the subcontractor has fully met his primary liability. The defendant maintains that this new and secondary liability of the general contractor is exclusive, and destroys any common-law right of action for negligence or wrong which might otherwise exist.

If the Legislature intended that such secondary liability should be exclusive, it has not expressed that intent, as it might have done, in clear terms. We are asked to apply the provisions of section 11 of the Workmen's Compensation Law to the new liability created by section 56 of the law, though in terms section 11 applies only to ‘the liability * * * prescribed by the last preceding section.’ Arguments in favor of such an extension of the provisions of section 11 of the Workmen's Compensation Law are not without some force. Other states have enacted workmen's compensation laws which, like our own, impose some liability on a general contractor for injuries to the employees of subcontractors. In some jurisdictions the courts have held that the liability imposed by statute upon the general contractor is exclusiveand in place of any common-law liability for wrong or negligence. State v. Bennett Building Co. (Md.) 140 A. 52, not yet [officially] reported; Bindbeutel v. Willcut & Sons Co., 244 Mass. 195, 138 N. E. 239. The courts in other jurisdictions have not...