Summary
In Brassel v. Electric Welding Co., 239 N.Y. 78, 145 N.E. 745, 746, the Board had made a full, final, award, for a short period of disability, and the employer had paid it in full before the employee sued.
Summary of this case from Heagney v. Brooklyn Eastern Dist. TerminalOpinion
Argued October 9, 1924
Decided November 25, 1924
Appeal from the Supreme Court, Appellate Division, Second Department.
Charles L. Woody and Robert H. Woody for appellant. Vine H. Smith for respondent.
Plaintiff, an employee of the defendant, the Electric Welding Company of America, fell down a hatchway while working on a vessel that was then undergoing repairs in dry dock at Brooklyn, New York. For the purpose of this appeal we assume that there is evidence of negligence on the part of his employer. He made application to the State Industrial Board for an award of compensation under the Workmen's Compensation Act during the term of disability. The injuries were not permanent, and the term of disability was short. Some time in 1920 the Board made the desired award, $15 a week for sixteen weeks, $240 in all, which the defendant paid in full. The plaintiff accepted the money and has never tendered a return of it. He now sues for his damages.
The trial judge held that the State Industrial Board was without jurisdiction, since the injuries were suffered on navigable waters ( Danielsen v. Morse Dry Dock Repair Co., 235 N.Y. 439). From this he drew the conclusion, not merely that the award was void, but that its collection and retention did not affect the right of action, except to require the jury to credit the $240 upon the damages sustained. A verdict for $1,600 followed these instructions.
We think the acceptance of the payment has destroyed the right of action. The question is not whether the award has the effect of a binding adjudication. We may assume that it is void, and that, at least while unpaid, it might have been set aside or disregarded ( Matter of Doey v. Howland Co., Inc., 224 N.Y. 30). The question is whether a right of action has survived the collection of the award and the retention of the proceeds. The plaintiff made claim under the statute and must be charged with knowledge of its provisions. The statute provides (Workmen's Compensation Act [Cons. Laws, ch. 67], § 11) that the liability of an employer thereunder shall be "exclusive and in place of any other liability whatsoever" on account of the injury sustained by the employee. In the light of this provision, the employer, when it tendered payment of the award, affixed by implication the condition that the tender was made upon the statutory terms. The employee, by accepting payment, signified his assent to the condition, and his willingness to receive the money upon the terms thereby imposed. The transaction thus resulted in an accord and satisfaction. So viewed, its efficacy is independent of the jurisdiction of the Board to coerce unwilling parties. The situation is much the same as if an owner of a patent after suing for infringement in a State court and pocketing the proceeds of a judgment in his favor, were to urge the exclusive jurisdiction of the Federal courts as a reason why damages should be paid to him again. Consent and the estoppel flowing from consent would put him out of court ( Davis v. Wakelee, 156 U.S. 680). Nor does the plaintiff help his case by crediting what he has received upon the damages recovered. By such a use of the money, payments made and accepted for one purpose are diverted to another. The defendant did not tender payment upon account of an unliquidated claim for damages to be enforced thereafter without prejudice, nor is there any evidence that the plaintiff so understood the effect of the acceptance. The payment was in full.
We are not required to decide whether the employee might have relief upon a showing of mistake. If that might ever be, at least the duty would be his before the beginning of the action to tender back what he had received ( McNamara v. Eastman Kodak Co., 232 N.Y. 18). He may not litigate his claim for damages while clinging to the fruits of the contract which he affects to disaffirm.
The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.
HISCOCK, Ch. J., POUND, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur.
Judgments reversed, etc.