Barnhart v. American Concrete Steel Co.

Decision Date06 January 1920
PartiesBARNHART v. AMERICAN CONCRETE STEEL CO.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Action by Gertrude M. Barnhart, as administratrix, against the American Concrete Steel Company. A judgment for the plaintiff was reversed by the Appellate Division and the complaint dismissed (181 App. Div. 881,167 N. Y. Supp. 475), and plaintiff appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, Second department.

Anothony J. Ernest, of New York City, for appellant.

Theodore H. Lord, of New York City, for respondent.

McLAUGHLIN, J.

This action was brought to recover damages alleged to have been sustained by the death of plaintiff's intestate. At the time of his death the intestate was a resident of New Jersey and in the employ of the defendant, a New Jersey corporation. The contract of employment was entered into in that state. At the time of his death he was at work for the defendant in the state of New York, and the question presented is whether, by reason of that fact, the action can be here maintained.

The New Jersey Workmen's Compensation Act (Laws of 1911, c. 95, as amended [P. L. 1913, p. 309]) provides that when an employer and employé shall, by agreement, either express or implied, accept the provisions of section 2 of the act, compensation for personal injuries to or for the death of such employé by accident arising out of or in the course of his employment, shall be made by the employer without regard to the negligence of the employé according to certain schedules set forth (paragraph 7, § 2); that such agreement shall be a surrender by the parties thereto of their rights to any other method, form, or amount of compensation or determination thereof, than that provided in section 2 of the act, and an acceptance of all the provisions of section 2 shall bind the employé himself, and for compensation for his death shall bind his personal representatives, his widow and next of kin, as well as the employer (paragraph 8); that every contract of hiring made subsequent to the time provided for any act to take effect shall be presumed to have been made with reference to the provisions of section 2, and unless there be as a part of such contract an express statement in writing prior to any accident, either in the contract itself or by written notice from either party to the other, that the provisions of section 2 are not intended to apply, then it shall be presumed that the parties have accepted the provisions of section 2 and have agreed to be bound thereby.

There is a fundamental difference between the Workmen's Compensation Act of New Jersey and the Workmen's Compensation Act of New York (Consol. Laws, c. 67). This difference it is important to keep in mind. Under one statute the scheme of compensation is optional, while in the other it is mandatory.

In matter of Post v. Burger & Gohlke, 216 N. Y. 544, 111 N. E. 351, Ann. Cas. 1916B, 158, this court held, at least inferentially, that the remedy under the New York statute was contractual in its nature. The court, however, did not mean that it was contractual in the strick sense, as was pointed out in Matter of Smith v. Heine Safety Boiler Co., 224 N. Y. 9, 119 N. E. 878, Ann. Cas. 1918D, 316, Judge Cardozo, who delivered the opinion, referring to Matter of Post v. Burger & Gohlke, supra, said:

‘Reading into the contract of employment the provisions of the statute, we held that a liability quasi ex contractu was imposed on the employer. Contractual in a strict sense, of course, the liability is not. People ex rel. Dusenbury v. Speir, 77 N. Y. 144;Matter of Post v. Burger & Gohlke, supra, at page 549 [of 216 N. Y., 111 N. E. 351, Ann. Cas. 1916B, 158];Ralli v. Troop, 157 U. S. 386, 396 [15 Sup. Ct. 657, 39 L. Ed. 742]; Angell, Recovery Under Workmen's Compensation Law for Injury Abroad, 31 Harvard Law Review, p. 619. If the parties were to agree that it should not attach, the courts would disregard their agreement.’ 224 N. Y. 11, 119 N. E. 878, Ann. Cas. 1918D, 316.

The New Jersey statute is different. Under that statute the rights which it creates and the duties which it imposes are contractual in the strict sense. It is optional with the employer, as well as the employé, whether or not the compensation, in case of injury or death, shall be paid. If a servant prefers to retain his common-law remedies, he may give notice, within a certain time after his employment, and the remedies will be retained. If he chooses to renounce them in return for the statutory scheme of compensation, his voluntary choice is the source and origin of his right.

The plaintiff's intestate, having the right to accept or reject the statutory scheme of compensation, exercised the option to accept it and contracted accordingly with the defendant. Such contract became binding upon him and, like any other valid contract, enforceable in the state of New York, unless to its public policy.

It is contended by the appellant that the contract even though binding upon the intestate, is not binding upon his representatives. This contention is based upon the constitutional provision of the state of New York (article 1, § 18) to the effect that the right of action to recover damages for death shall never be abrogated. The right of action which is preserved by this constitutional provision is the one provided for in section 1902 of the Code of Civil Procedure. That section provides that the executor or administrator may maintain an action to recover damages for the wrongful killing of his decedent ‘against a natural person who, or a corporation which, would have been liable to an action if favor of the decedent by...

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26 cases
  • Bradford Electric Light Co v. Clapper
    • United States
    • U.S. Supreme Court
    • May 16, 1932
    ...S. 542, 34 S. Ct. 955, 58 L. Ed. 1457, but to give rise to a defense in consequence of acts within. 8 See Barnhart v. American Concrete Steel Co., 227 N. Y. 531, 535, 125 N. E. 675, denying recovery in a common-law action for damages in the state of injury, on the ground that the employee's......
  • Bradford Electric Light Co. v. Clapper
    • United States
    • U.S. Court of Appeals — First Circuit
    • June 29, 1931
    ...161 N. W. 949; Grinnell v. Wilkinson, 39 R. I. 447, 98 A. 103, L. R. A. 1917B, 767, Ann. Cas. 1918B, 618; Barnhart v. American Concrete Steel Co., 227 N. Y. 531, 125 N. E. 675; Martin v. Kennecott Copper Corp. (D. C.) 252 F. In terms, the Vermont act, section 5770, G. L. 1917, covers injuri......
  • Hauch v. Connor
    • United States
    • Maryland Court of Appeals
    • January 4, 1983
    ...courts employed a contract approach. Scott v. White Eagle Oil & Refining Co., 47 F.2d 615 (D.Kan.1930); Barnhart v. American Concrete Steel Co., 227 N.Y. 531, 125 N.E. 675 (1920). Today, however, many courts recognize that workmen's compensation law conflict issues present distinct policy q......
  • O'Connor v. Lee-Hy Paving Corp.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 12, 1978
    ...§ 184, which they argue apply the policies reflected in § 184. We do not find these relevant here. In Barnhart v. American Concrete Steel Co., 227 N.Y. 531, 125 N.E. 675 (1920), participation in the New Jersey workmen's compensation program was optional, and plaintiff's decedent had elected......
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