Zirpola v. T.&E. Casselman, Inc.

• Decision Date: 19 February 1924
• Citation: 237 N.Y. 367,143 N.E. 222
• Parties: ZIRPOLA v. T. & E. CASSELMAN, Inc. et al.
• Court: New York Court of Appeals Court of Appeals

237 N.Y. 367

143 N.E. 222

ZIRPOLA

v.T. & E. CASSELMAN, Inc. et al.

Court of Appeals of New York.

Feb. 19, 1924.

Proceedings under the Workmen's Compensation Law by Giovanna Zirpola for death of her son, John Zirpola, opposed by T. & E. Casselman, Inc., employer, and the Allied Mutual Liability Insurance Company, insurance carrier. Award of State Industrial Board for claimant was affirmed by the Appellate Division (204 App. Div. 647,198 N. Y. Supp. 740), and the employer and insurance carrier appeal.

Affirmed.Appeal from Supreme Court, Appellate Division, Third Department.

John Preston Phillips and Arthur Butler Graham, both of New York City, for appellants.

Carl Sherman, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent.

CARDOZO, J.

John Zirpola, while working for his employer, T. & E. Casselman, met his death by falling into an elevator shaft in a building owned by the corporation known as the estate of Eugene Hoffman. His father and mother, who were his sole next of kin, filed a notice of election under section 29 of the Workmen's Compensation Act (Cons. Laws, ch. 67). By that section:

‘If an employee entitled to compensation * * * be injured or killed by the negligence or wrong of another not in the same employ, such injured employee, or in case of death, his dependents, shall, before any suit or any award 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 such injured employee, or in case of death, his dependents, elect to take compensation under this chapter, the awarding of compensation shall operate as an assignment of the cause of action against such other to the state for the benefit of the state insurance fund, if compensation be payable therefrom, and otherwise to the person, association, corporation, or insurance carrier liable for the payment of such compensation, and if he elect to proceed against such other, the state insurance fund, person, association, corporation, or insurance carrier 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 compensation provided or estimated by the chapter for such case.’

The election in this instance was to proceed against the third party, the owner of the building. Administrators brought an action which resulted in a verdict for $2,500, and this, upon collection, was divided equally between the next of kin, the father and the mother, $1,250 to each, in accordance with sections 1903 and 1905 of the Code of Civil Procedure, now sections 133 and 134 of the Decedent Estate Law. The claim for death benefits under the Workmen's Compensation Act was then brought on for hearing before the Board. The decision of the Board was that the mother was a dependent within the meaning of the act, but that the father was not. The $1,250 received by the mother as her share of the verdict would pay death benefits to her at the statutory rates for 6 years and 28 2/10 weeks, or from the day of the death of her son till April 30, 1925. The Board reduced the liability for benefits accordingly, and made an award to the mother for compensation, beginning April 30, 1925, at the rate of $4.33 per week. Employer and carrier now urge that the deficiency should have been ascertained by deducting $2,500, the full amount of the verdict. If the action against the Hoffman estate was for the use of dependents and no others, then the entire verdict was for the benefit of the mother, and the administrators could not enlarge the liability of the employer or the carrier by paying half of the verdict to the father. If the action, on the other hand, was for the benefit of the next of kin in the proportions defined in sections 1903 and 1905 of the Code, then half of the verdict was payable to the father, and the deficiency was correctly ascertained by crediting the award with the half collected by the mother.

We think a cause of action for injuries resulting in death, prosecuted by an administrator against some one other than the employer, is for the benefit, not of dependents as defined by the Workmen's Compensation Act, but of next of kin as defined by the Code (sections 1903, 1905), or by the Decedent Estate Law, continuing the Code provisions (sections 133, 134). The two classes are not invariably nor perhaps commonly the same. A wife under the Workmen's Compensation Act (section 16) receives 30 per cent. of the average wages of the deceasedduring widowhood, with two years' compensation in one sum upon remarriage. Each child under the age of 18 receives [237 N.Y. 371]10 per cent. of such wages, until reaching the age of 18 and no longer. The share may be increased to 15 per cent. if the wife dies or remarries. In no event, however, is the total amount payable to exceed 66 2/3 per cent. of the average wages. If there is neither wife nor child under 18, or if the amount payable to wife and children does not reach the limit of 66 2/3 per cent., grandchildren, or brothers and sisters under the age of 18, if dependent upon the deceased at the time of the accident, may participate to the extent of 15 per cent. of the average wages, and parents and grandparents, if dependent, may participate to the extent of 25 per cent. of such wages during such dependency. The barest comparison of the class of dependents as established by this schedule with the class of next of kin as defined in the statutory cause of action for injuries resulting in death will reveal the variances between them. If the cause of action against third parties has been transformed into one for the benefit of dependents, issues, at once novel and confusing, will be injected into every trial. There will then be need to ascertain whether the deceased was engaged in one of the hazardous occupations enumerated in the statute (Workmen's Compensation Act, § 3). If he was, there will arise the issue, often a prolific source of controversy, whether the injury was one ‘arising out of and in the course of the employment’ (section 10). If this appears to be its origin, a recovery otherwise permissible may be defeated or reduced. For illustration, the sole survivor may be a child who has reached the age of 18 or the survivors may be two children, one over that age and one below it. Many similar situations will readily suggest themselves. Then, too, pecuniary loss, though falling short of evidence of dependency, will sustain a recovery if the right is governed by the Code. Dependency, on the other hand, imports a fuller measure of subjection, and involves reliance upon earnings for education or support. The difficulties would not end, however, when the issues were determined. A jury trying the issues between the administrator and the wrongdoer might say that there were two dependents, and award damages accordingly. The Industrial Board, adjudicating the controversy between claimant and employer, might reach another conclusion, and hold that there was only one. Other difficulties of distribution would remain when the class was ascertained. If the amount of the recovery was more than 66 2/3 per cent. of the average wages of the deceased, it would be hard to say what disposition should be made of the excess. The simple cause of action, long existing under the Code, with incidents definite and constant, would be turned into a shifting variable, protecting one class or another as inconstant verdicts might determine.

We think the cause of action against third parties for the benefit of next of kin is unchanged by the Compensation Act except to the extent that the act substitutes the carrier, upon the execution of appropriate assignments, to the distributive shares of next of kin who claim as dependents also. The ...