Taylor v. New York Cent. R. Co.

• Decision Date: 19 July 1945
• Citation: 62 N.E.2d 777,294 N.Y. 397
• Parties: TAYLOR v. NEW YORK CENT. R. CO.
• Court: New York Court of Appeals Court of Appeals

294 N.Y. 397

62 N.E.2d 777

TAYLOR

v.NEW YORK CENT. R. CO.

Court of Appeals of New York.

July 19, 1945.

Appeal from Supreme Court, Appellate Division, First Department.

Action by James A. Taylor against the New York Central Railroad Company to recover for injuries sustained by the plaintiff, while employed by the Pullman Company as a porter, by reason of defendant's alleged negligent operation of a railroad train. From a judgment of the Appellate Division of the Supreme Court entered March 1, 1945, 269 App.Div. 662, 53 N.Y.S.2d 469, unanimously affirming a judgment of the Supreme Court in favor of defendant, entered in New York County upon a dismissal of the complaint by the court at Trial Term, Schreiber, J., with out a jury, after a separate trial by the court of the affirmative defenses alleged in the answer, plaintiff appeals as of right on constitutional grounds and also by per mission of the Court of Appeals.

Affirmed. Copal Mintz and James J. Healy, both of New York City, for appellant.

Edward D. Burns, John G. Saxe, and Rogers H. Bacon, all of New York City, for respondent.

DESMOND, Judge.

The complaint alleges that plaintiff, while employed by the Pullman Company as a porter, was injured when the car in which he was riding was derailed and overturned. That accident, according to the complaint, was caused by the negligence of defendant New York Central Railroad Company, whose locomotive was drawing the train which included the Pullman car in which plaintiff was working. The railroad company's answer, besides denials, contains defenses which point out that after the accident plaintiff made claim for workmen's compensation before the State Industrial Board, was awarded such compensation and accepted it, and that this action was not commenced until more than six months after such award and acceptance and until more than a year after the accrual of the cause of action alleged in the complaint. By reason of that lapse of time, says the answer, plaintiff's alleged cause of action against defendant has, under section 29 of the Workmen's Compensation Law, become the property of plaintiff's employer, the Pullman Company. Plaintiff served a reply. In it he avers that ‘he was in the employ of the Pullman Company and of the defendant jointly as a porter,’ that plaintiff the Pullman Company, and defendant railroad company were all, at the time of the accident engaged wholly in interstate commerce and that the Pullman Company and defendant were common carriers by railroad engaged in interstate commerce with plaintiff as their employee. Other allegations in the reply are that, when this action was commenced, the Pullman Company had no intention of enforcing any liability of defendant for negligently injuring plaintiff, and was disabled from bringing any such suit by its prior agreement to save defendant harmless from any liability to the Pullman Company's employees.

By consent, the issues raised by the defenses and the reply were separately tried by the court without a jury. On that trial it was conceded that plaintiff had been hired by and paid by the Pullman Company as a porter, and that he had been awarded workmen's compensation, which had been paid to him by the Pullman Company. It appears without dispute that the present action was not started until more than six months after the compensation award and more than a year after the accident. Admitted in evidence at the trial was an agreement between the Pullman Company and defendant, which agreement, plaintiff argues, had the effect of making defendant railroad company an employer of plaintiff either a special employer pro hac vice or an employer jointly with the Pullman Company. The Trial Justice, at the close of the trial, dismissed the complaint. In his oral opinion he held that by lapse of time plaintiff had been divested, under section 29 of the Workmen's Compensation Law, of the right to bring this suit. The court ruled that the New York State Workmen's Compensaion Law, Consol.Laws, c. 67, was applicable and the Federal Employers' Liability Act, U.S.Code, tit. 45, s 51 et seq., 45 U.S.C.A. s 51 seq. inapplicable. The Appellate Division unanimously affirmed without opinion and we granted leave to appeal to this court.

There are two branches to plaintiff's argument. First, he contends that section 29 of the Workmen's Compensation Law despite its language, does not bar a suit like this, brought more than six months after the compensation award and more than a year after the accidental injury His suit, he says, is saved from the bar set up by that section because, he says the provision of that section assigning, after that lapse of time, the cause of action to the payer (The Pullman Company) of the compensation ‘is inoperative when the compensation payer is disabled and barred from prosecuting the cause of action’. We will first discuss that matter, turning later to his other point which is based on the theory of employment by an interstate carrier in interstate commerce.

Under section 29 of the Workmen's Compensation Law it is unnecessary for an injured employee to choose in the first instance between taking compensation and pursuing by suit his cause of action against a third person alleged to have injured him. He may take the compensation from his employer or his employer's insurer and nonetheless bring an action against the third person. But ‘such action must be commenced not later than six months after the awarding of compensation and in any event before the expiration of one year from the date such action accrues.’ If the injured workman fails to bring the action within the time so limited, ‘such failure shall operate as an assignment of the cause of action against such other * * * to the person * * * liable for the payment of such compensation.’ That is plain language. The cause of action, after the stated time has gone by, passes to the employer or insurer. No exception is supplied for a situation where the compensation payer has in advance disabled himself, by agreement or release, from taking advantage of the employee's cause of action thus automatically assigned. Finding no such exception, we would be legislating if we read one in, and that we cannot do.

Plaintiff argues, however, that, whatever its meaning, section 29 has no effect on his rights because, he says, his accident and his injuries are not within the coverage of the Workmen's Compensation Law at all. His employment, he argues, was by an interstate carrier in interstate commerce and so, he asserts, his rights are governed exclusively by the Federal Employers' Liability Act. We hold, for the reasons now to be stated, that section 29 of the Workmen's Compensation Law does bar this suit.

The Workmen's Compensation Law in terms covers plaintiff's work (s 3, Group 14) and so that statute controls unless some applicable Act of Congress has validly ‘(covered) the field.’ New York Central R. Co. v. Winfield, 244 U.S. 147, 37 S.Ct. 546, 547, 61 L.Ed. 1045, L.R.A.1918C, 439, Ann.Cas.1917D, 1139. Congress has provided such exclusive coverage, says plaintiff, in the Federal Employers' Liability Act, supra. That statute provides (s 1; U.S.Code, tit. 45, s 51, ...