Corrigan v. Stormoimt

• Court: Virginia Supreme Court
• Writing for the Court: HUDGINS, Justice
• Citation: Corrigan v. Stormoimt, 160 Va. 727, 170 S.E. 16 (1933)
• Decision Date: 15 June 1933
• Parties: CORRIGAN. v. STORMOIMT et al.

170 S.E. 16

CORRIGAN.

v.STORMOIMT et al.

Supreme Court of Appeals of Virginia.

June 15, 1933.

Error to Circuit Court, Princess Anne County.

Action by William A. Corrigan against David Stormont and others. To review the judgment, plaintiff brings error.

Reversed and remanded.

Argued before CAMPBELL, C. J., and EPES, HUDGINS, GREGORY, and BROWNING, JJ.

C. C. Sharp and Jas. G. Martin, both of Norfolk, for plaintiff in error.

W. R. Ashburn and N. T. Green, both of Norfolk, for defendants in error.

HUDGINS, Justice.

William A. Corrigan, an employee of the town of Virginia Beach, while engaged in performing duties incident to his employment, was on January 29, 1931, injured by an automobile driven by David Stormont. For these injuries Corrigan accepted an award under the provisions of the Workmen's Compensation Act (Code 1930, § 1887 (1) et seq.), which was paid in part and liability assumed by the insurance carrier, the Independence Indemnity Company of Philadelphia. Within a year from date of the injury, an action in the name of Corrigan was instituted against David Stormont and his associates in business to recover damages for the injury which Corrigan had sustained. More than a year from January 29, 1931, defendants filed a plea alleging that the acceptance of the award was a bar to the action.

The court denied permission to amend the notice of motion, to the effect that the action was brought for the benefit of William A. Corrigan and the Independence Indemnity Company. Thereupon plaintiff offered to file a special replication to the plea, set out in the record as follows:

"That for special replication the plaintiff says that this suit was instituted in the name of William Corrigan by authority, and through the attorney for the Independence Indemnity Company of Philadelphia, who had paid him compensation under an award, but were using the name of the injured party pursuant to statute as we maintain. Therefore, the plaintiff's suit can be maintained by the Independence Indemnity Company in the name of William A. Corrigan with proper endorsement on the order as heretofore offered."

To prove the allegations in this replication, one of the attorneys representing plaintiff was called as a witness. He testified that the amount of the award was $1,812.50 and $158.-50 medical expenses; that the insurance carrier had paid $1,222.50 of the award and had authorized him to bring this action, which he had instituted with the consent and in the name of the injured employee. On cross-examination, he stated that at the time the action was begun he believed that the injured employee would be benefited by any recovery in excess of the award, expenses, and attorney's fee; that the action would have been brought by the insurance carrier whether or not the injured employee had given his consent; that William A. Corrigan had determined to bring an action for damages against these defendants, notwithstandingthe fact that he had accepted the award; and that after an interview with him as attorney for the insurance company Corrigan had also authorized this action to be instituted. The trial court rejected the replication and the evidence and entered judgment for defendants.

Section 12 of the Workmen's Compensation Act, as amended by the act of 1930 (Code, § 1887(12), in part reads thus:

" * * * provided, however, that where such employee, * * * may have a right to recover damages for such injury, * * * from any person or persons other than such employer, he may institute an action at law against such third person or persons before an award is made under this act, and prosecute the same to its final determination, but * * * the acceptance of an award hereunder, * * * shall be a bar to proceeding further with the alternate remedy. * * * "

This provision was construed in Horsman v. Richmond, etc., R. Co., 155 Va. 934, 157 S. E. 158, in which it was held that the statute meant what it said, that an acceptance of an award was a bar to the institution and maintenance of an action by the injured employee against the tort-feasor. In that case, the injured employee offered to amend his declaration by inserting that the action was brought for the benefit of the employer, the employee, and the insurance carrier, but it did not appear what interest, if any, the employer had in the outcome of the litigation, nor did it appear that the insurance carrier had authorized the bringing of the action for its benefit. Under these circumstances, the court held that the provisions of the act quoted above barred the injured employee from recovery.

In Williamson v. Wellman, 156 Va. 417, 158 S. E. 777, 780, this was said: "* * * the indorsement on the writ stated that the action was for the benefit of the employer and the plaintiff as their respective interests might be shown. This amendment was made with the knowledge and consent of the employer, who was present by its attorney."

In Tyler Corporation v. Evans, 156 Va. 576, 159 S. E. 393, 39-1, Evans, an employee of Hall-Hodges Company, was injured by the negligence of a party other than his employer. For these injuries, he applied for and received an award from the Industrial Commission; subsequently he brought an action against a negligent third party and recovered damages for the same injury. On a writ of error to this court, Chief Justice Campbell, in an opinion reversing the case, said:

"It is virtually conceded by counsel for Evans, that, if the Williamson Case has...