The question arises upon the pleadings.
So much of the complaint as is material alleges that employees of the defendant negligently broke a gas pipe maintained by the plaintiff in a public highway and negligently inclosed the point of fracture within a tile drain laid by them; that as a result gas escaped into a nearby house and there asphyxiated John Haviland, an employee of the defendant, who was in the course of his employment at the time; that the only wrong of the plaintiff which contributed to this casualty was a failure to make timely discovery that gas was escaping from its pipe; that Haviland's administratrix had judgment against the plaintiff in an action brought to recover *Page 178 the damages caused by her decedent's death; and that the plaintiff paid that judgment and also the cost of the defense of that action. Plaintiff demands indemnity from the defendant for the moneys so paid. The case was decided below and has been argued here on the assumption that the foregoing allegations sufficiently state a cause of action at common law. We do not go behind that assumption. (Cf. Small v. Sullivan, 245 N.Y. 343. )
The answer alleges that the defendant had secured compensation to its employees in compliance with the Workmen's Compensation Law (Cons. Laws, ch. 67). Whether this is a valid defense to the assumed cause of action is the single issue presented for decision.
Section 10 of the Workmen's Compensation Law provides: "Every employer subject to this chapter shall in accordance with this chapter, except as otherwise provided in section twenty-five-a hereof, secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of the employment without regard to fault as a cause of the injury, except that there shall be no liability for compensation under this chapter when the injury has been solely occasioned by intoxication of the injured employee while on duty or by wilful intention of the injured employee to bring about the injury or death of himself or another." Section 25-a is unrelated to this case.
It is provided by section 11: "The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever, to such employee, his personal representatives, husband, parents, dependents or next of kin, or anyone otherwise entitled to recover damages, at common law or otherwise on account of such injury or death, except that if an employer fail to secure the payment of compensation for his injured employees and their dependents as provided in section fifty of this chapter, an injured *Page 179 employee, or his legal representative in case death results from the injury, may, at his option, elect to claim compensation under this chapter, or to maintain an action in the courts for damages on account of such injury; and in such an action it shall not be necessary to plead or prove freedom from contributory negligence nor may the defendant plead as a defense that the injury was caused by the negligence of a fellow servant nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee."
The whole point made by the defendant is that these provisions bar the present action.
We think this position has no warrant in the text that has been quoted from the statute. Plaintiff does not sue for damages "on account of" Haviland's death. Plaintiff asserts its own right of recovery for breach of an alleged independent duty or obligation owed to it by the defendant.
Nor does the policy of the statute countenance the defendant's position. "The act was passed pursuant to a widespread belief in its value as a means of protecting workingmen and their dependents from want in case of injury when engaged in certain specified hazardous employments. It was the intention of the Legislature to secure such injured workmen and their dependents from becoming objects of charity, and to make reasonable compensation for injuries sustained or death incurred by reason of such employment a part of the expense of the lines of business included within the definition of hazardous employments as stated in the act. It was also the intention of the Legislature to make such compensation not only a part of the expense of the business and a part of the cost of the things manufactured and of transportation as defined by the act, but ultimately to require such compensation to be paid by the consumer of the manufactured goods and by those securing transportation." *Page 180 (Matter of Post v. Burger Gohlke, 216 N.Y. 544, 553, 554. See N.Y. Const. art. I, § 19.)
Nor is the defendant's position sanctioned by the legal nature of its liability under the statute. Such liability is a quasi contractual obligation imposed by reading the statute into a contract of employment. (Matter of Post v. Burger Gohlke,supra; Matter of Smith v. Heine Safety Boiler Co., 224 N.Y. 9. )
It may be admitted that if the defendant is held to answer to the plaintiff in this action the result (as the Chief Judge says) is that an employer is made liable indirectly in an amount which could not be recovered directly. This consequence, we think, does not decide the issue against the plaintiff. Recovery over against the employer in an unusual case like this need not be rested upon any theory of subrogation. An independent duty or obligation owed by the employer to the third party is a sufficient basis for the action. (Schubert v. Schubert Wagon Co., 249 N.Y. 253.)
We agree with the courts below that the challenged defense is insufficient in law.
The order should be affirmed, with costs, and the question certified answered in the negative.