On appeal from the Supreme Court, Passaic county.
For the plaintiff-appellant, Isadore Rabinowitz.
For the defendant-respondent, William V. Rosenkrans.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. This appeal is from a judgment of the Supreme Court, Passaic county, the trial court having determined the matters in dispute on stipulated facts.
It appears that on May 1st, 1926, the plaintiff, while in the employ of a road contractor, sustained serious injuries through the negligence of a third party, Victor Ernest. In due course he filed a formal petition for compensation which was not prosecuted, because the defendant, The Travelers Insurance Company, which was the insurer of the employer,
guaranteed the payment of compensation. Meanwhile the injured employe brought a common law action for damages resulting from his injuries against the said Ernest, which action was thereafter settled for the sum of $6,000 by the Indemnity Insurance Company of North America, the insurer of Ernest.
Prior to the settlement of the common law action, the employer had served notice on the tort feasor pursuant to the provisions of the statute (Pamph. L. 1913, ch. 174, § 23 (at pp. 312-313); Pamph. L. 1919, ch. 93, § 23-f -- Workmen's Compensation act), to the effect that the said Ernest would be held answerable to reimburse the employer for compensation already paid the injured employe and for payments that subsequently would be made under said compensation agreement.
At the time this settlement was consummated The Travelers Insurance Company, employer's insurer, had already paid to the injured plaintiff, for medical expenses, temporary disability, and on account of permanent disability, a total of $1,906.03. The Indemnity Insurance Company, Ernest's insurer, in making actual settlement of the plaintiff's common law action, paid over to the Travelers Insurance Company this amount of $1,906.03 and paid the balance of $4,093.97 to the plaintiff. Plaintiff thereafter went before a deputy commissioner of the compensation bureau and signed what purports to be an agreement waiving his right to future sums that might be due under his claim for compensation against the employer.
About five years later plaintiff brings this suit against the employer's insurer for the entire amount of the original compensation award, that is, for the amount refunded to it, The Travelers Insurance Company, out of the settlement money and for the balance of the compensation unpaid at the time of that settlement.
The court below found that the plaintiff was entitled to have returned to him the sum of $1,906.03 which the defendant had received in reimbursement of compensation payments made by it to the ...