Fidelity & Cas. Co. of New York v. Miller

• Decision Date: 23 December 1941
• Docket Number: 16591.
• Citation: 38 N.E.2d 279,111 Ind.App. 308
• Court: Indiana Appellate Court
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. MILLER.

38 N.E.2d 279

111 Ind.App. 308

FIDELITY & CASUALTY CO. OF NEW YORK v. MILLER.

No. 16591.

Appellate Court of Indiana, in Banc.

December 23, 1941

White Wright & Boleman and George C. Forrey, III, all of Indianapolis, and George B. Staff, of Franklin, for appellant.

Donald P. Shinn, of Columbus, and Fenton, Steers, Beasley &amp Klee, of Indianapolis, for appellee.

DE VOSS, Chief Justice.

Appellant brought this action in subrogation against appellee, alleging that appellant was the insurance carrier of Ralph A. Woods whose employe, Effie L. Woods, was injured by the negligent acts and conduct of appellee. That said Ralph A. Woods and Effie L. Woods had accepted the terms of the Indiana Workmen's Compensation Act and that that appellant was the insurer for said Ralph A. Woods under the terms of said act and had on file with the Industrial Board of Indiana a policy of such insurance duly approved by said Board. That said Effie L. Woods filed her claim before the Industrial Board of Indiana against Ralph A. Woods for compensation ultimately resulting in a finding and order of said Board against said Ralph A. Woods for the payment of $8.80 a week beginning September 23, 1932, during the period his total disability and for the payment of surgical, hospital and nurses' services. That, as the insurance carrier of said Ralph A. Woods, appellant has paid said Effie L. Woods the sum of $8.80 per week, beginning September 22, 1932 and will continue to do so until the same is rescinded, altered or modified, or until the period required by law expires. That appellant has paid the medical, hospital and nurses' services, expenses for the first thirty days following the date of injury and has paid and become liable to pay the sum of $6,000 and the complaint prays judgment for $6,000.

Appellee filed a second paragraph of answer to the complaint setting up the statute of limitations and alleging that the complaint was not filed within two years from the date of injury complained of.

Appellant filed a demurrer to this second paragraph of answer, which was overruled by the court, with exceptions to appellant, and appellant refusing to plead further, judgment was rendered in favor of appellee, and this appeal followed. The errors assigned and relied upon for reversal in this court are: (1) The court erred in overruling the appellant's demurrer to the appellee's second paragraph of answer to appellant's complaint, and (2) the court erred in rendering judgment on the pleadings for the appellee and against the appellant for costs.

The facts involved on this appeal are not in dispute. The record discloses that the injury to Effie L. Woods, as set out in the complaint, occurred on September 15, 1932. That on September 4, 1934, Effie L. Woods filed her application for compensation against Ralph A. Woods and that on January 24, 1936, the full Industrial Board made the finding and award as set out herein, and it is not contended that the complaint was filed within two years from the date of the injury.

It is contended by appellant that its liability was not determined for more than two years after the injury and until such award was made, appellant had no liability to Effie L. Woods and no action for subrogation against appellee therefor.

Our Workmen's Compensation Act makes provision for the recovery by the employer or his insurer for compensation paid or for compensation for which he has become liable and the section relative thereto is as follows: "40-1213. Liability of third person--Subrogation of employer.--Whenever an injury or death, for which compensation is payable under this act, shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee, or his dependents, in case of death, at his or their option, may claim compensation from the employer or proceed at law against such other person to recover damages or may proceed against the employer for compensation and against such other person to recover damages at the same time, but he or they shall not collect from both; and, if compensation is awarded and accepted under this act, the employer, having paid compensation or having become liable therefor, may collect in his own name or in the name of the injured employee, or, in case of death, in the name of his dependents, from the other person in whom legal liability for damages exists, the compensation paid or payable to the injured employee or his dependents."

If the injured party, Effie L. Woods, had elected to proceed against the appellee herein to recover damages for her...