Sciortino v. Dimon SS Corporation, 3858.
| Decision Date | 09 January 1930 |
| Docket Number | No. 3858.,3858. |
| Parties | SCIORTINO v. DIMON S. S. CORPORATION. |
| Court | U.S. District Court — Eastern District of New York |
Fink & Frank, of New York City (Jacquin Frank, of New York City, of counsel), for plaintiff.
Burlingham, Veeder, Fearey, Clark & Hupper, of New York City (William P. Allen, of New York City, of counsel), for defendant.
The special issue raised by the separate defense as to whether or not the plaintiff has accepted compensation within the meaning of section 33(b) of the Longshoremen's and Harbor Workers' Compensation Act (33 US CA § 933(b), was tried before this court without a jury.
The sole question for determination is whether or not the third party action specially reserved to injured employees by virtue of section 33(b) of the Longshoremen's and Harbor Workers' Compensation Act (33 US CA § 933(b), has been saved to this plaintiff, or whether the Travelers' Insurance Company has been subrogated to the rights of the plaintiff.
The plaintiff, a longshoreman, employed by the Chiarello Stevedoring Company, was injured on April 19, 1928, while employed on board the steamship Westmount, owned and operated by the defendant. Immediately after the accident the plaintiff was taken to a hospital where he remained until May 23, 1928, and thereupon returned to his home, and has been treated by a physician up to the date of the trial.
The Chiarello Stevedoring Company filed a report of the accident with the deputy commissioner of New York City of the United States Employees' Compensation Commission on April 25, 1928.
The Travelers' Insurance Company, the insurance carrier for the Chiarello Stevedoring Company, on April 28, 1928, issued its voucher for $20, in payment of compensation from April 26, 1928, to May 3, 1928, and mailed it to plaintiff's home address, as provided by the law, and on May 4, 1928, filed with the deputy commissioner its report of the beginning of compensation payments. At regular intervals thereafter, the Travelers' Insurance Company sent its check to the plaintiff by mail in payment of compensation. These checks were received and cashed by plaintiff's wife, who indorsed plaintiff's name on the checks up to and including a check dated September 27, 1928, for $40, covering the period from September 13, 1928, to September 27, 1928. The Travelers' Insurance Company continued to send its checks to the plaintiff by mail until November 22, 1928, when it was informed that plaintiff desired no further payments. The checks issued subsequent to the one dated September 27, 1928, were not cashed.
On July 18, 1928,...
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