American Lumbermen's Mut. Casualty Co. v. Lowe
| Decision Date | 30 April 1934 |
| Docket Number | No. 318.,318. |
| Citation | 70 F.2d 616 |
| Parties | AMERICAN LUMBERMEN'S MUT. CASUALTY CO. v. LOWE, Deputy Com'r, et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Alexander, Ash & Jones, of New York City (Edward Ash and Lawson R. Jones, both of New York City, of counsel), for complainant-appellant.
Louis A. D'Agosto and James F. Doyle, both of New York City (Louis A. D'Agosto, of New York City, of counsel), for defendants-appellees.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
On October 13, 1932, Natale Avaltroni, a longshoreman in the employ of A. Pellegrino & Son, Inc., sustained injuries resulting in his death while working on the steamship Astrea. Shortly after his death, the widow, Susie Avaltroni, called at the office of the American Lumbermen's Mutual Casualty Company and was there informed by a claim adjuster that she could institute an action against the Royal Netherlands Steamship Company, the owner of the ship, and that, if she later chose to discontinue this action she could do so and compensation would be paid to her under the Longshoremen's & Harbor Workers' Compensation Act. She thereupon instituted an action in the New York Supreme Court against the third party, and prior thereto, on December 7, 1932, filed a notice in the office of the Deputy Commissioner of her election to sue such third party. The action was thereafter removed to the United States District Court for the Eastern District of New York. On March 14, 1933, the widow, having been served with a statutory notice for arrears of rent, having been threatened with seizure of her furniture for nonpayment of installments due, and finding herself in a destitute condition, orally informed the compensation claims manager of the American Lumbermen's Mutual Casualty Company that because of her financial condition she would be unable to await the outcome of her action against the third party and would be obliged to discontinue it and offered to assign her rights to the insurance carrier. Thereafter, on April 6, 1933, she notified the compensation commissioner and the insurance carrier by registered mail of her intention to discontinue the action against the third party. On April 14, 1933, the widow filed a claim for compensation on behalf of herself and four children under 18 years of age. On April 26, 1933, notice of a motion to discontinue the action in the District Court was served upon the carrier, who was not a party thereto, and upon the Royal Netherlands Steamship Company and its attorneys. The carrier was represented at the hearing by an attorney who filed an affidavit that the carrier was not a party to the action and did not consent to the discontinuance. On May 9, 1933, an order was entered discontinuing the action in the District Court and reciting that there was no appearance in opposition.
Formal hearings were thereupon held before the Deputy Commissioner on the widow's claim for compensation which resulted in an award, to restrain the enforcement of which this suit was brought.
Upon the trial, in which the foregoing facts were developed, Judge Campbell held that the Longshoremen's and Harbor Workers' Compensation Act (33 USCA §§ 901-950) did not make the suit by the claimant in the District Court a final election and that after bringing her action she could still discontinue it and exercise her rights under the Compensation Act. From the decree entered dismissing the bill, the carrier appeals.
The question of law raised by this appeal is whether the claimant, who has elected to sue a third party wrongdoer, could change her mind and claim compensation before having first carried the suit to judgment in order to fix the deficiency.
Section 33(a) of the Compensation Act, 33 USCA § 933(a) provides that: "If on account of a disability or death for which compensation is payable * * * the person entitled to such compensation determines that some person other than the employer is liable in damages, he may elect, by giving notice to the deputy commissioner in such manner as the commission may provide, to receive such compensation or to recover damages against such third person."
Subsequent subdivisions of section 33 go on to say (b), 33 USCA § 933 (b), that "Acceptance of such compensation shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person," and (g), 33 USCA § 933 (g), "If a compromise with such third person is...
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