Berry v. Irwin

• Decision Date: 18 May 1928
• Citation: 6 S.W.2d 705,224 Ky. 565
• Parties: BERRY et al. v. IRWIN et al.
• Court: Kentucky Court of Appeals

6 S.W.2d 705

224 Ky. 565

BERRY et al. v. IRWIN et al.

Court of Appeals of Kentucky

May 18, 1928

Appeal from Circuit Court, Hardin County.

Action by S.D. Irwin against Emil Berry and others. Judgment for plaintiff. Defendants filed a motion asking that verdict be credited by sum which plaintiff had received from his employers by way of workmen's compensation, and the London Guaranty & Accident Company filed an intervening petition claiming that it, as insurance carrier, had paid plaintiff the sum of $1,465 for workmen's compensation and asking that judgment be entered for it in the sum of $1,465 out of verdict for $5,000. From a judgment for intervener, plaintiff appeals. Affirmed.

H. L James, of Elizabethtown, and Chas. W. Morris, of Louisville for appellants.

P. H Savage, of Louisville, and L. A. Faurest, of Elizabethtown, for appellees.

DIETZMAN J.

The appellee Irwin brought suit against the appellants to recover for personal injuries he had sustained on account of the alleged negligence of the appellants. He recovered a judgment for $5,000, which was affirmed by this court in 220 Ky. 708, 295 S.W. 1020. A reference is here made to that case for a full statement of the facts out of which that suit arose. On the day the verdict was rendered in the trial court the appellants filed a motion supported by affidavits, in which they asked that the verdict be credited by the sum of $1,405.95 which they claimed Irwin had received from his employers by way of workmen's compensation. On the same day the appellee London Guaranty & Accident Company filed an intervening petition in which, as later amended, it averred that it was the insurance carrier of the employers of Irwin; that it, as such, had become liable to Irwin and had paid Irwin the sum of $1,465 for workmen's compensation on account of the accident for which he had recovered the $5,000 verdict mentioned; that at their instance and request and for it as well as himself Irwin had brought the suit in question; and that it had aided and assisted Irwin in the prosecution of the suit as appellants well knew during all the time that suit was pending. It asked that of the verdict of $5,000, judgment be entered for it in the sum of $1,465, Irwin being entitled to the balance. The court reserved the disposition of the questions presented by the motion of the appellants and the intervening petition of the insurance company until after the Irwin judgment had been disposed of in this court.

After the mandate of this court had been filed in the lower court, it overruled the motion of the appellants and gave judgment for the appellee London Guaranty & Accident Company in accordance with the prayer of its intervening petition, from which judgment this appeal is prosecuted.

It is conceded that, where the injured employee has been hurt through the negligence of a third party, he may proceed for compensation against his employer or may sue the negligent third party for damages, or may proceed both against his employer for compensation and the negligent third party, but he cannot recover from both. Ky. Statutes, § 4890. If the employer, having paid compensation, makes no claim against the negligent third party, the latter is entitled to be credited on the judgment rendered against him in favor of an injured employee by such compensation as may have been paid such employee by the employer. Williams v. Brown, 205 Ky. 74, 265 S.W. 480. On the other hand, the employer and his insurance carrier may claim reimbursement from the negligent third party for such compensation as he or it may have paid to the injured employee. Section 4890 of the Kentucky Statutes, a part of the Compensation Act, among other things provides:

"* * * If compensation is awarded under this act" either "the employer" or his insurance carrier, "having paid the compensation or having become liable therefor, shall have the right to recover in his" or its "own name or that of the injured employee from the other person in whom legal liability for damages exists not to exceed the indemnity paid and payable to the injured employee."

While conceding these general principles, appellants insist as grounds for reversal of the judgment in this case, first that inasmuch as the insurance company's intervening petition failed to aver that any compensation had been awarded under this act, neither it nor Irwin's employers could recover what they may have paid Irwin, even though by way of workmen's compensation; and, secondly, that as more than a year had elapsed between the happening of the accident and the filing of the intervening petition, the cause of action of the insurance...