I dissent from the majority opinion in this case on the ground that the acts of all the parties applying to and appearing before the Industrial Board, and the act of the claimant receiving partial payment of an award, constituted a waiver under the amendments to the Workmen's Compensation Law added by chapter 615 of the Laws of 1922. It is difficult for me to understand what would constitute a waiver if these acts did not.
The plaintiff filed a claim for compensation under the Workmen's Compensation Act. All other parties in interest, the employer and the insurance carrier, appeared and participated in the proceedings. Partial awards were made, paid and accepted. Under any other procedure, such actions would have constituted an election of remedies. Our statute now provides, under the above amendment, that all parties may waive their right to proceed according to maritime law. There is nothing in the Constitution that I know of which prevents parties *Page 139 from waiving such a right or privilege. The Legislature may not arbitrarily declare certain things to constitute a waiver which do not evidence them to be such as matter of fact. Nevertheless, the Legislature may give effect to certain acts and proceedings as a waiver when they indicate that the parties have knowingly and deliberately made an election. The benefits of the Workmen's Compensation Law have been universally recognized as a relief to the working man and from the uncertainty of negligent actions, dependent as they are upon so many caprices. If a workman, entitled to sue in admiralty for an injury, elects to take the benefits of a State Workmen's Compensation Law, I can see no more reason why he should not thereafter be held to his acts the same as he would in admiralty for many other elections he might make. He can assign a claim for money due, or he can release for adequate or inadequate consideration a claim for injuries arising out of negligence. He does not need protection of the court as do infants and incompetents in these particulars.
Why is it, then, that he cannot accept under a State statute payment for injuries received within the State jurisdiction as matter of election? In my judgment, to compel an employee to waive his rights in admiralty before accepting employment would be going too far. It would be an attempt to oust the courts of their proper jurisdiction by means which in the stress of the labor market would have the color of coercion. But where a man knowingly makes an election after his injury, I can see nothing improper or illegal in holding him to it.
Therefore, I believe that this statute of ours is constitutional, and that under it the claimant in this case made his election. I believe in giving force to our statutes unless for some very clear reason they appear to be unconstitutional. Like all new subjects for legislation and judicial action, the rights of the working man under our two jurisdictions must be slowly and gradually *Page 140 developed. We cannot expect that all wisdom will be expressed in the first decision. Man is not infallible, and time develops many new viewpoints. In this process of adjustment, we must not be too ready to criticise decisions or find fault with uncertainties. The courts do the best they can. It is in this attitude that I approach the decision in this case, and feel that until the United States Supreme Court has decided that State Legislatures can in no way legislate for the benefit of longshoremen that I have decided to cast my vote in favor of our State statute and the right of such men to take compensation under the Workmen's Compensation Law.
POUND, ANDREWS and LEHMAN, JJ., concur with CARDOZO, J.; CRANE, J., dissents in opinion in which HISCOCK, Ch. J., and McLAUGHLIN, J., concur.
Judgments reversed, etc.