Employers' Liability Assurance Co. v. Indianapolis & Cincinnati Traction Co.
| Decision Date | 19 February 1924 |
| Docket Number | 24,584 |
| Parties | Employers' Liability Assurance Company v. Indianapolis and Cincinnati Traction Company et al |
| Court | Indiana Supreme Court |
Modified and Rehearing Denied July 3, 1924.
1. LIMITATION OF ACTION.---Workmen's Compensation Insurance Carriers.---Statute of Limitation.---Accrual of Right of Action.---Under the Workmen's Compensation Act an insurance carrier, who becomes bound to pay compensation to an injured employee whose injuries were caused by some one other than the employer, must bring suit against the person liable for such injury within two years after injury (295 Burns 1914, 293 R S. 1881), and not within two years after payment of last installment of compensation. p. 97.
2. LIMITATION OF ACTION.---Workmen's Compensation Insurance Carriers.---Recovery of Compensation Paid from Wrong Doer.---Statute of Limitation.---Accrual of Right of Action.---An action by an insurance carrier against the person liable for the injury to a workman, to whom the insurance carrier was required to pay compensation, is not an action in assumpsit on an implied contract to reimburse the amount so paid out, so as to take the case out of the provision of the statute governing personal injuries (295 Burns 1914, 293 R. S. 1881) that suit must be brought within two years. p. 99.
3. MASTER AND SERVANT.---Workmen's Compensation Act.---Recovery of Compensation Paid from Wrong Doer.---Section 13 of the Workmen's Compensation Act authorizing an insurance carrier to recover compensation paid for injuries from the wrong doer "in whom legal liability for damages exist," does not create a new cause of action. p. 100.
4 STATUTES.---Workmen's Compensation Act.---Title.---Cause of Action.---Section 13 of the Workmen's Compensation Act authorizing an insurance carrier to recover compensation paid to an injured employee from the person liable for the injury, if construed to create a "new right of action," would be violative of Art. 4, 19 Constitution. p. 102.
5. MASTER AND SERVANT.---Workmen's Compensation Act.---Insurance Carrier an "Employer."---Statutes.---An insurance carrier under the Workmen's Compensation Act , that has become bound to pay compensation to an injured workman by a policy that contains a direct promise to pay (74, Acts 1915 p. 392, supra), and has made an agreement or suffered an award fixing the amount to be paid (57, Acts 1915 p. 392, supra), is an "employer" within the meaning of the statute (76, cl. (a), Acts 1915 p. 392, supra) and is entitled to collect indemnity paid or payable from a third person causing the injury (13, Acts 1915 p. 392, supra). p. 103.
From Marion Superior Court (11,632); Arthur R. Robinson, Judge.
Action by the Employers' Liability Assurance Company against Indianapolis and Cincinnati Traction Company. From a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under § 1394 Burns 1914, Acts 1901 p. 567, § 10).
Affirmed.
James W. Fesler, Harvey J. Elam and Howard S. Young, for appellant.
Donald L. Smith, for appellees.
The question presented for decision is whether or not an insurance carrier for an employer, being required by an award of the Industrial Board to pay compensation to an injured workman whose injuries were caused by the negligence of some one other than the employer, may maintain an action against such third person under §§ 13 and 76 (a) of the Workmen's Compensation Act (Acts 1915 p. 392, §§ 8020w and 8020h3, cl. [a], Burns' Supp. 1918), commenced within two years after paying the last installment of compensation, although such action was not commenced within two years after the injury was inflicted.
Appellant was the plaintiff below. The complaint was filed February 16, 1921. It alleged, in substance, that plaintiff was authorized to do business as an insurance company; that in April, 1916, it issued to a designated company a policy covering the liability of said company to its employes under the Workmen's Compensation Law, a copy of which policy was set out, and that it became and was the insurance carrier for said company; that thereafter on May 31, 1916, a workman in the employ of said company, while engaged in doing certain acts shown by proper averments to be within the scope of his employment, was struck by a car on the track of appellee traction company by reason of certain alleged negligence of said appellee, and was thereby so injured that his arm was crushed off below the elbow; that the Industrial Board demanded of plaintiff that it pay compensation for such injury, and plaintiff, as such insurance carrier for said employer, entered into an agreement with the injured workman to pay him compensation at a designated rate (as fixed by § 31 (f), Acts 1915 p. 392, § 8020o1 Burns' Supp. 1921) for 150 weeks and said agreement as to compensation was in all things approved by the Industrial Board and remained wholly unchallenged; that the injured workman's average weekly wage was of an amount stated, and his bills for medical attention within the first thirty days were of an amount stated, so that the agreement provided that plaintiff, as such insurance carrier, should pay only what the statutes of Indiana required it to pay; that pursuant thereto plaintiff paid said medical bills, and said weekly installments of compensation for 150 weeks, in the total sum of $ 1,496.50, for all of which it became and was made liable as such insurance carrier by reason of the said negligent acts of the traction company and its negligent infliction of said injuries on said workman, and under plaintiff's contract of insurance it was compelled to pay the same to save the employer company harmless from liability for such payments; that plaintiff is the owner of the alleged cause of action, and the entire beneficial interest therein has vested in it by reason of said facts; that the last installment of said compensation was paid in April, 1919; that by reason of the said facts the traction company was indebted to plaintiff in the sum of $ 1,496.50, together with interest. The policy of insurance made a part of the complaint bound plaintiff "to pay the compensation and to furnish or cause to be furnished the medical * * * services and medicines * * * on behalf of the insured, to any person or persons to whom compensation or services shall become due for or on account of personal injuries * * * suffered by any employe of the assured," as provided by the Workmen's Compensation Act of Indiana, which was expressly referred to therein, and to indemnify the insured against loss because of liability for damages on account of personal injury suffered by any employe during the policy period. "Condition C" in the policy stipulated that, "In case of payment of loss or expense under this policy the corporation shall be subrogated to all rights of the assured against any party as respects such loss or expense, to the amount of such payment," etc.
The defendant filed an answer in three paragraphs, the first of which was a general denial, the second a plea that the alleged cause of action sued on did not accrue within two years, and the third that when the said workman was injured, defendant was then and continuously thereafter a domestic corporation with its principal offices at Indianapolis, Indiana, and that the injured workman was of full age and sound mind at the time of the injury; that defendant's alleged negligence and the workman's injury occurred on May 31, 1916, and by reason of said facts the alleged cause of action did not accrue within two years next before the commencement of the action. There was evidence fairly tending to prove the averments of the complaint, and proving, without dispute, that the negligence of defendant occurred and the injury was inflicted on May 31, 1916, and that the injured workman could have maintained an action for damages because of his injuries on or after that date, as alleged in the answer. On motion the court instructed the jury to return a verdict for the defendant. A motion for a new trial specifying as error the giving of this instruction was overruled, and appellant excepted and has assigned the ruling as error.
At the time the injury was inflicted and for more than two years thereafter the sections of the Workmen's Compensation Act by which the rights of the parties must be determined read (in part) as follows:
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