Liberty Mutual Ins. Co. v. Colon Co. , 260 N.Y. 305 ( 1932 )

The action is brought under section 29 of the Workman's Compensation Law to recover $1,000 paid into the State treasury by plaintiff pursuant to subdivisions 8 and 9 of section 15 thereof in a case of injury causing death in which there are no persons claiming compensation. The administratrix of the estate of a deceased employee of a third party has elected, under section 29, to pursue her remedy against defendant.

Section 29 provides: "* * * In case of the payment of an award to the state treasurer in accordance with subdivisions eight and nine of section fifteen such payment shall operate to give to the employer or insurance carrier liable for the award a cause of action for the amount of such payment together with the reasonable funeral expenses and the expense of medical treatment which shall be in addition to any cause of action by the legal representatives of the deceased. * * *"

The complaint of the insurance carrier against the third party liable for the injury sets up the recovery of a judgment against defendant and that such judgment is res adjudicata and demands judgment accordingly. The answer sets up as one defense that deceased had one dependent on him. The Special Term on a motion for summary judgment refused to strike out the answer. The Appellate Division reversed and granted the motion to strike out. This defense has no merit as no dependent claimed an award for compensation. (Matter of State Treasurer v. West Side TruckingCo., 233 N.Y. 202, 207.)

It sets up as a further defense, which has also been stricken out, that the death of deceased was due to his own negligence; that the judgment in the death action is not res adjudicata and that defendant may avail itself of any defense which it has or ever had; that it has a right to establish, if it can, any defense which it could have interposed in the death action, as plaintiff was not a party to such action and is not bound by the judgment therein. (Phoenix Indemnity Co. v. Staten Island R.T.Ry. Co., 251 N.Y. 127, 138; affd., 281 U.S. 98.) This defense should not have been stricken out. Res adjudicata is obviously not controlling. There is no identity of parties or causes of action. This cause of action is purely statutory. Nor is this a case of vouching in for the plaintiff was never called upon to defend the death action. The omission to vouch in the plaintiff in the death action imposes upon the plaintiff in this action the burden of establishing anew all the actionable facts (Village ofPort Jervis v. First Nat. Bank, 96 N.Y. 550) which are the same as in the death action out of which this cause of action grows. This action is also an action "to recover damages for causing death." That is the cause of action which must be proved to entitle the plaintiff to recover. Contributory negligence of the person killed is a defense to be pleaded and proved by the defendant as in the administratrix's action. (Civ. Prac. Act, § 265.)

The conclusion seems inevitable that plaintiff must establish anew the original cause of action out of which this statutory action arises subject to the same defenses the defendant had in the action to recover damages for causing death by negligence.

The case differs from one where the indemnitor has by contract agreed to pay the indemnitee any sums that it might be compelled to pay. Here the statute gives the cause of action and we have said with some deliberation in effect that unless the defendant may avail itself of any defense which it has, the statute would be giving a right to take property without due process of law. (Phoenix Indemnity Co. v. Staten Island R.T. Ry. Co., supra.) But it has the burden of proof when it comes to establishing the negligence of the deceased. (Civ. Prac. Act, § 265, supra.)

The fact that in the leading case there was no judgment rendered in the death case because the action was settled does not alter the force of the dictum cited. Here the judgment in the death action has never established the defendant's liability in this action as defendant has never had a chance to defend itself against the statutory cause of action.

The judgment of the Appellate Division should be reversed and the order of the Special Term modified by striking out the first defense pleaded and as so modified affirmed, with costs in this court and in the Appellate Division.

CRANE, HUBBS and CROUCH, JJ., concur with LEHMAN, J.; POUND, Ch. J., dissents in opinion in which KELLOGG and O'BRIEN, JJ., concur.

Judgment affirmed.