Emp'rs' Liab. Assurance Corp., Ltd. v. Indianapolis & C. Traction Co.

• Decision Date: 20 April 1923
• Docket Number: No. 11435.,11435.
• Court: Indiana Appellate Court
• Parties: EMPLOYERS' LIABILITY ASSURANCE CORPORATION, Limited, v. INDIANAPOLIS & C. TRACTION CO. et al.

139 N.E. 200

EMPLOYERS' LIABILITY ASSURANCE CORPORATION, Limited,

v.INDIANAPOLIS & C. TRACTION CO. et al.

No. 11435.^*

Appellate Court of Indiana.

April 20, 1923.

Appeal from Superior Court, Marion County; Arthur R. Robinson, Judge.

Action by the Employers' Liability Assurance Corporation, Limited, against the Indianapolis & Cincinnati Traction Company, and others. Judgment for the named defendant, and plaintiff appeals. Reversed, with instructions to grant a new trial.

James W. Fesler, Harvey J. Elam, and Howard S. Young, all of Indianapolis, for appellant.

Donald L. Smith, of Rushville, for appellee.

REMY, P. J.

On May 31, 1916, Alta Knight, as an employee of the Daniel Deprez Manufacturing Company, was driving a wagon when it was struck by one of the cars of appellee Indianapolis & Cincinnati Traction Company, hereinafter designated as appellee, resulting in the loss of his left arm. Daniel Deprez Manufacturing Company, at the time, carried workman's compensation insurance with appellant. After the injury, appellant as the insurance carrier entered into a compensation agreement with Knight by the terms of which it agreed to pay, and did pay, to him certain bills for medical attention, together with weekly payments of compensation for a period of 150 weeks, the last of such payments having been made in April, 1919. On February 26, 1921, this action was commenced to recover the money paid in accordance with the compensation agreement. The parties named in the complaint as defendants, and as appellees herein, other than the Indianapolis & Cincinnati Traction Company, were made parties that they might answer to their interests. They filed no pleadings. The traction company pleaded the general issue and the statute of limitations. At the trial, it appeared from the evidence that the action had been commenced within two years of the last payment made to Knight under the compensation agreement, but not within two years of the date of the injury. At the close of the evidence the court instructed the jury to return a verdict for appellee.

Whether or not the action is barred by the statute of limitations is the important question for consideration by this court. It is contended by appellant that the cause of action stated in the complaint did not accrue until the last compensation payment had been made. On the other hand, appellee contends that the action accrued at the time Knight received the injury. The trial court took the latter view. Section 13 of the Workmen's Compensation Act (Acts 1915, p. 395) is as follows: 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 both the employer and such other person to recover damages, or may proceed against both the employer and such other person 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 damage exists, the compensation paid or payable to the injured employee or his dependents.

[1] When an employee sustains an injury under such circumstances as to create a liability in some other person than the employer, the above statute gives to the injured employee the option of an action against the person causing the injury, or to compensation under the Workmen's Compensation Act. However, if he elects to take compensation, and accepts payment from his employer, he thereby surrenders whatever right of action he may have had to recover at common law from the person whose negligence caused the injury. Pittsburgh, etc.,...