by an employee were correct and sufficient to sustain an action under the Federal Employer's Liability Act, the remedy provided by that act would be exclusive and the company would be under no obligation to pay him compensation under the Workmen's Compensation Act. 5. Release-Validity and effect-Dismissal of action against employer on pay ment of sum computed on basis of compensation act-Liability, as full satisfaction, accruing to benefit of negligent third party. An employee of a railroad company brought suit for personal injuries under the Federal Employers' Liability Act and dismissed that suit and executed a release to the company in consideration of the payment of a sum of money, held to have released his full right of action for the injury so that he could not sue a third party whose negligence contributed thereto, though the consideration for the release was computed on the basis of what would have been due under the Workmen's Compensation Act. 6. Release-Validity and effect-Burden of proof to show instrument not intended to evidence full satisfaction and discharge. In an action for personal injuries where defendant pleads an unequivocal release given by plaintiff to one whose negligence contributed to the injury, the burden is on plaintiff to show by extrinsic evidence that the instrument was made as, and intended to be no more than, a technical release of the other party and not a satisfaction or discharge of all claims on account of his injuries. Action for damages for personal injuries received in a collision between a railroad speeder, upon which plaintiff was riding, and defendant's truck at a railroad crossing. Appeal from a directed verdict and judgment for defendant. Affirmed. made application to the industrial commission for compensation and was allowed $472.50 as a temporary disability indemnity. This sum was paid in full and the petitioner's receipt taken therefor. Nearly 16 months thereafter petitioner applied to the commission for a permanent disability rating, under section 25d of the act of 1913, on the ground that his injury had developed into a permanent disability, and that he was entitled to an additional allowance on that account. Thereupon the commission served notice upon the employer and the insur. ance carrier of such application, notifying them that unless good cause to the contrary were shown in writing and filed with the commission within 10 days from the date of said notice, the previous findings and award would be amended so as to provide a further allowance to the applicant of $337.50. Within such 10 days the insurance carrier filed with the commission an answer in writing, stating that it objected to the proposed amendment, on the ground that at the time of the injury applicant was not in the employ of the insured, so that it was not responsible for any compensation payments whatever. It made no other objection to the proposed amendment. Thereupon the commission considered the matter, and made the award allowing applicant the sum of $337.50, to be paid by the insurance carrier and the employer. In affirming the award the court said: "The payment of the temporary disability award, and the release thereon, was no bar to the subsequent proceeding for compensation for the permanent disability caused by the injury. It did, in terms, purport to release the company from all claims for compensation by reason of the injury, but the money paid was sufficient only to satisfy the award previously made, and there was no consideration for the release of any For appellant-John McLennan, and Herman Zeuch. For appellee-Read & Read. WEAVER, J. In August, 1916, the plaintiff was in the employ of the Chicago, Rock Island & Pacific Railway Company as lineman at and near the city of Des Moines. On the day in question, with two other employees of the railroad company, he was riding on a motor car or speeder moving westward on the main track of said railway through East Des Moines. Approaching the crossing of East Sixth street, plaintiff and his companions saw the company's watchman at that point give the signal for stopping the movement of street traffic. and clearing the crossing to allow the passage of the car, and, assuming that it was safe to do so, they continued their course. At the same time an employee of the defendant ice company, driving a heavy ice truck from the north, and in alleged neglect of the watchman's warning, drove upon the crossing in time to collide with the motor car. In this collision the plaintiff received very severe injury, necessitating the amputation of a leg, crippling his arm, and inflicting other wounds and bruises. The railway company had before that time. additional right or of any demand for Cal. See Employee's Credit Co. v. Industrial Acc. Commission, V, B, post. B. Filing with clerk of court. While engaged in the duties of his employment, 'the plaintiff sustained an accidental injury to his leg and hip. More than two months thereafter plaintiff and his employer arrived at an agreement and settlement of the compensation plaintiff was to receive for his injury. Payment of the amount agreed upon was made and a release executed acknowledging the receipt by plaintiff of $133 in cash, which with the weekly payments theretofore made to plaintiff and the money paid by the employer to the hospitai and the physician who had cared for plaintiff during his disability, were to be a final payment of compensation under the act for all damage and injury from the accident aforesaid. Thereafter plaintiff brought suit, alleging that in consequence of the accident above mentioned, he had sustained a permanent injury; that the defendant had agreed to pay the hospital and medical bills and compensation at $12 per week until plaintiff was able to resume work, plus $5 per week for his board during that time, that of this sum defendant had paid $133 as wages and board and $154.25 for hospital and medical bills; but that since that time no further elected to accept and observe the provisions of the Iowa Workmen's Compensation Act (Code Supp. 1913, § 2477-m et seq.); but as we understand the record plaintiff never filed any claim with the Industrial Commission for compensation on account of the injuries so received. In December, 1916, plaintiff, by counsel employed for that purpose, brought suit against the Rock Island Company at St. Paul, Minn., for the recovery of damages on account of his injury. As grounds for such claim the petition stated the facts hereinbefore mentioned and alleged that the plaintiff's injuries were caused by the negligence of the company's watchman at the crossing, also by the negligence of other employees in leaving the crossing obscured and obstructed by freight cars standing there, and by the company's employment for the service as watchman or fiagman at that point of a man who was incompetent and unfit for the discharge of such duty. With action thus pending, and before it was reached for trial, the parties reached a settlement by which the railroad company undertook to pay and did pay to plaintiff the sum of $3,250, and plaintiff dismissed the suit, and executed and delivered to the company a receipt and voucher for the money so paid, as follows: payments had been made by the defendant. Defendant pleaded in answer the settlement, payment and release aforesaid. Plaintiff, replying, alleged that the defendant had not filed the agreement and release from liability with the clerk of the district court, as required by the compensation act. The trial court in submitting the case to the jury, instructed them that the agreement and release were not binding and effective unless filed in the office of the clerk within 60 days after it was made. The jury found plaintiff to be totally incapacitated for 25 weeks by reason of the injury and made award of $4.50 per week for a period of 104 weeks and $9 per week for 25 weeks. In affirming the judg ment based upon this verdict the court held that, defendant having failed to comply with the provision of the statute requiring the filing of the release, the same became ineffectual and the parties were set back to the point where they were before the settlement was negotiated. "Whether the purpose was publicity for the protection of the employee, or security for employers, or to serve some beneficial public purpose, it was competent for the Legislature to provide," said the court, "that such releases and agreements should be made a matter of record." Rodarmel v. Carey Salt Co., 101 Kan. 141, 165 Pac. 668 (1917). C. Payment of award in full. The claimant in a proceeding for compensation under the New York compensation act, at the time of the accident causing the injuries for which an award was sought, was a resident of New Jersey, where he had voted during the 10 years last preceding the date of the accident. He was employed by the defendant as a stevedore. Defendant's principal offices and places of work were in the city of New York. It was insured under the compensation statutes of both New York and New Jersey. The accident, however, took place on a pier in the "(Copy.) "Jacob M. Dickinson, Receiver. "The Chicago, Rock Island & Pacific Railway Company. "File No. M.-1840, Iowa Division. General Claim Agent's No. 16-8913. "General Release. "Whereas, I, E. E. Middaugh, of 814 East 17th street, Des Moines, of the county of Polk, state of Iowa, was injured, at or near Des Moines, Iowa, on or about the 19th day of August, 1916, on a line of railway owned or leased by the Chicago, Rock Island & Pacific Railway Company, and now operated by Jacob M. Dickinson as receiver of said company's railroad and property, while a lineman, under circumstances which I claim render such receiver or company liable in damages, although such liability is denied by him and it, and the undersigned, being desirous to compromise, adjust and settle the entire matter: "Now, therefore, for the sole and only consideration of the sum of three thousand two hundred fifty and no/100 dollars ($3,250.00) to me this day paid by said receiver, in behalf of himself as such receiver, and of said company, and other companies whose lines are owned or leased by it, I do hereby com promise said claim, and do release and forever discharge the said receiver and said the Chicago, Rock Island & Pacific Railway Company, and all companies whose lines are leased by it, and their respective agents and employees, from any and all liability for all claims for all injuries, including those that may hereafter develop, as well as those now apparent, and also do release and discharge them of all suits, actions, causes of action, and claims for injuries and damages which I have or might have arising out of the injuries above referred to, either to my person or property, and do hereby acknowledge full satisfaction of all such liability and causes of action. state of New Jersey. It appeared that in order to be conveniently situated as to his work the claimant had, some time prior to the accident, rented a room in New York City, and from this room he went to his work each morning, returning at night, visiting his family in New Jersey every week or two, usually on Sunday. At the time of the accident claimant was working temporarily on the pier in New Jersey. Following the injury claimant presented a claim for compensation under the New York statute. The employer's insurance carrier appeared at the hearing before the New York commission and contested its jurisdiction to make any award. The objection of the carrier was overruled and an award was made in accordance with the prayer of the claimant. From this award the employer and the insurance carrier appealed. Shortly after the appeal, claimant, being in straightened circumstances, went to the office of the defendant insurance carrier for the purpose of obtaining compensation for his injury. Payment of the award under the New York statute was refused but the insurance carrier's agent told claimant that if he would accept payment of $10 per week under the New Jersey statute he would be paid for nine weeks' disability. He thereupon accepted $90 and executed an affidavit, apparently acknowledging such payment, and furthermore, releasing the insurance carrier from liability and repudiating all claim for compensation under the New York statute. There. after the insurance carrier moved to reopen the case before the New York commission for the purpose of introducing the affidavit in evidence. The commission, however, declined to receive the affidavit or make it a part of its record and denied the application to reopen the case, at the same time stating that if the carrier desired, "In making this settlement I rely solely on my own judgment and informa tion, and do not rely on any statements or representations as to the facts of the accident, or of the character and extent of my injuries, which may have been made to me by said receiver or by any of said railway companies, or by any of their officers, agents, employees, or physicians, respectively. "It is expressly understood and agreed that this settlement carries with it no promise whatever of continued or future employment. "It is further expressly understood and agreed that this release shall be deemed to be and shall be a complete bar to any action which might otherwise be brought, either at law, or under any state or federal workmen's compensation act, employers' liability act, labor law, or any other statute, for the recovery of compensation or damages on account of said injuries (or of resulting death, if this be executed by an administrator or administratrix of the estate of said person), for the benefit of any person whomsoever or estate whatsoever. "I further represent and covenant that at the time of receiving said payment and signing and sealing this release I am of lawful age and legally competent to execute it, and that before signing and sealing it I have fully informed myself of its contents and executed it with full knowledge thereof. "Read This Release. "I also dismiss suit pending in the district court of Ramsey county, Minnesota, in the above cause, and I agree to pay the costs of said action. "I have read and understand this release. "Given under my hand and seal this 14th day of February, A. D. 1917. "In presence of Leo J. Cramer, C. W. Lacy. "E. E. Middaugh, Des Moines, Iowa." "Paid by draft No. 6068, drawn by C. W. Lacy, claim agent, Des Moines, Iowa.' Within a few days after dismissing the action against the railway company at St. Paul, plaintiff began this action at Des Moines against the commission would give it credit upon the award for the payment of $90. The insurance carrier and employer both refused to accept this proposition, and, electing to rely upon the contention that the commission was without jurisdiction, appealed from the order denying the motion to reopen the case for the introduction of further evidence. In affirming the award and the decision of the commission refusing to reopen the case, the court held, after disposing of the jurisdictional question, that neither the employer nor the insurance carrier were entitled to be discharged from obligation under the award by payment to the employee of two-thirds of the amount of the award, even though such payment was used as consideration for a release purporting to be in full of the award. Such a procedure, the court pointed out, was in direct opposition to the provisions of section 33 of the compensation act, prohibit ing the commutation of awards in all cases. "The attempted settlement," said the court, "was made without the consent of the State Industrial Commission having been obtained, and in fact without their knowledge. The affidavit so far as it assumed to release and repudiate the rights of the claimant was utterly void. The Commission gave it all the force to which it was entitled by offering to accept it as a receipt for the payment of $90 of the award. The appellant refusing to introduce it for that purpose, and it being incompetent and immaterial for any other purpose, I think the commission was fully warranted in declining to receive it, and in refusing to reopen the case for that purpose." Jenkins v. T. Hogan & Sons, 177 N. Y. App. Div. 36, 163 N. Y. Supp. 707 (1917). See Employee's Credit Co. v. Industrial Acc. Commission, V, B, post. |