Beekman v. W.A. Brodie, Inc.

• Decision Date: 16 October 1928
• Citation: 163 N.E. 298,249 N.Y. 175
• Parties: BEEKMAN v. W. A. BRODIE, Inc., et al.
• Court: New York Court of Appeals Court of Appeals

249 N.Y. 175

163 N.E. 298

BEEKMAN

v.W. A. BRODIE, Inc., et al.

Court of Appeals of New York.

Oct. 16, 1928.

Proceeding under the Workmen's Compensation Law by Henry Beekman, employee, opposed by W. A. Brodie, Inc., employer, and the Travelers' Insurance Company, insurance carrier. From an order of the Appellate Division (223 App. Div. 204, 228 N. Y. S. 399), reversing an award of the State Industrial Board and dismissing the claim, claimant appeals.

Reversed in part, and in part affirmed.

Crane and Kellogg, JJ., dissenting in part.

Appeal from Supreme Court, Appellate Division, Third department.

Albert Ottinger, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for appellant.

William B. Davis, and E. C. Sherwood, both of New York City, for respondents.

PER CURIAM.

The employer was estopped from asserting its rights under the provisions of Workmen's Compensation Law (Consol. Laws, c. 67) § 29, relative to written consent, when it disclaimed liability and advised the employee to settle his case with the third party. Clow v. B. F. Keith's Fordham Theatre, 247 N. Y. 583, 161 N. E. 191. The insurance carrier was not bound by such waiver. Its own written consent or waiver thereto was necessary to bind it. As against the insurer, the employee has lost his right to the deficiency. O'Brien v. Lodi, 246 N. Y. 46, 157 N. E. 925. His claim against the employer remains. Workmen's Compensation Law, § 53. Workmen's Compensation Law, § 54, subd. 2, relates to jurisdiction, and does not apply to a case where both insured and carrier are parties to the proceeding.

The order dismissing the award against W. A. Brodie, Inc., employer, should be reversed, and the award of the State Industrial Board affirmed, with costs in this court and in the Appellate Division. The order dismissing the award against the Travelers' Insurance Company should be affirmed, with costs against the State Industrial Board.

CRANE, J. (dissenting in part).

The insurance carrier, in my opinion, was also bound by the estoppel or waiver of the employer. Its actions in this particular were binding on the insurance carrier. By section 54, subd. 2, of the Workmen's Compensation Law, the insurance carrier shall in all things be bound by and subject to the orders, findings, decisions or awards rendered against the employer for the payment of compensation. The employer and the carrier are treated as one in many instances. Thus under section 18, notice of injury is given to the commissioner and to the employer. Knowledge of the accident by the employer may excuse the failure to give notice, or it may also be excused on the ground that the employer has not been prejudiced by want of notice. The insurance carrier is not entitled to notice of injury and may be bound by the knowledge of the employer. By section 28, the claim for compensation must be filed within the year; but it is filed with the commission, not the carrier. The employer and insurance carrier shall be deemed to have waived the bar of the statute, unless the objection to the failure to file the claim within the year is raised on the hearing. Objection by one, I take it, would be for the benefit of both.

Compensation means a money allowance payable to an employee. It is the payment of this compensation which the law seeks to make certain. The employee must be protected and the allowance secured. Failure to secure the payment of compensation is a misdemeanor. Section 52. An employer is not relieved from liability for compensation except by payment thereof by himself or his insurance carrier. Section 53. Insolvency of the employer does not relieve the carrier. Section 54, subd. 3. Section 50 says an employer shall secure compensation in one of the ways indicated. Here it was done through an insurance carrier. With such obligations placed upon him and the carrier, it would be strange if an act or word of the employer could lessen the employee's security and relieve the carrier. Whatever may be the rights between themselves the employee looks to both for his compensation. Section...