Iowa Nat. Mut. Ins. Co. v. Chicago, B. & Q.R. Co., 48693

• Decision Date: 08 March 1955
• Docket Number: No. 48693,48693
• Citation: 68 N.W.2d 920,246 Iowa 971
• Parties: IOWA NATIONAL MUTUAL INSURANCE COMPANY and Mary Elta White, Administratrix of the Estate of Charles Willis White, Deceased, Appellees, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, a Corporation, and Tom McGovern, Appellants.
• Court: Iowa Supreme Court

Page 920

68 N.W.2d 920

246 Iowa 971

IOWA NATIONAL MUTUAL INSURANCE COMPANY and Mary Elta White, Administratrix of the Estate of Charles Willis White, Deceased, Appellees, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, a Corporation, and Tom McGovern, Appellants.

No. 48693.

Supreme Court of Iowa.

March 8, 1955.

Rehearing Denied May 6, 1955.

E. L. Carroll, Creston, and Pryor, Hale, Plock, Riley & Jones, Burlington, for appellants.

J. D. Reynolds, Creston, for appellee Iowa National Mutual Insurance Company, and Thos. E. Mullin, Creston, for appellee Mary Elta White, Administratrix.

GARFIELD, Justice.

We granted this appeal under rule 332, Rules of Civil Procedure, 58 I.C.A., in advance of final judgment from two rulings of the district court on motions for more specific statement and to strike certain allegations of the petition and all of an amendment thereto. The appeal largely involves the construction of section 85.22, Code 1954, I.C.A., in the chapter entitled 'Workmen's Compensation.'

The petition of plaintiff insurance company filed March 5, 1954, seeks to recover from defendants, railroad company and the engineer of one of its trains, $17,100 damages for negligently causing the death on March 24, 1952, of Charles W. White, employed by Union County, in a collision between the train and a road grader operated by decedent. The petition further alleges Mary E. White, is administratrix of her deceased husband's estate, plaintiff was the carrier of workmen's compensation insurance on the employees of Union County and has paid compensation insurance to White's widow, plaintiff notified her as administratrix and demanded that she commence legal action against defendants for White's wrongful death and she has failed to do so, by reason of the premises and Code section 85.22, I.C.A., plaintiff is subrogated to all rights of the administratrix and widow, decedent's estate was damaged by his wrongful death in the sum of $17,100.

Defendants moved that plaintiff be required to state how much compensation it claims to have paid decedent's widow and that the court strike allegations of the petition as to the extent of damage to the estate from decedent's death for the reason such allegations are irrelevant, immaterial and redundant with respect to any rights plaintiff may have, or any obligations of defendants, arising out of such death.

July 16, 1954, nearly 28 months after decedent's death, the administratrix filed an amendment to the insurance company's petition incorporating by reference its allegations except those stating the company was the compensation insurance carrier for Union County, has paid her compensation, demanded that she commence action against defendants for White's wrongful death and her failure to do so. In the amendment the administratrix joined with the insurance company as plaintiff and in the prayer of its petition.

Defendants moved to strike the amendment on the ground it appeared from allegations of the petition incorporated in the amendment that any cause of action the administratrix had was barred by the statute of limitations when the amendment was filed.

The trial court overruled both the motion for more specific statement and to strike part of the petition and the motion to strike the amendment. The rulings state no reasons therefor. Defendants' appeal is from both rulings.

It is clear the insurance company's petition seeks to recover the full amount of damages which accrued to decedent's estate by reason of his alleged wrongful death. Plaintiffs say in argument the insurance company claims it is subrogated to the rights of the administratrix all as provided by Code section 85.22, subsection 2, I.C.A. Defendants apparently do not challenge the insurer's right to recover the amount of workmen's compensation it paid the widow provided, of course, it is shown defendants negligently caused the employee's death and are therefore legally liable for it.

I. We consider first the alleged error in overruling defendants' motion for more specific statement and to strike the allegations of the petition as to the extent of damages to the estate from decedent's death. The trial court evidently concluded the insurer is entitled to recover the full damages that accrued to the estate.

Code section 611.20, I.C.A., states, 'All causes of action shall survive and may be brought notwithstanding the death of the person entitled or liable to the same.' Section 611.22 provides any such action may be brought by the legal representatives of the deceased and shall be deemed to have accrued to such representative at the time it would have accrued to deceased if he had survived.

Unless Code section 85.22, I.C.A., authorizes this action by the insurance company it seems clear the administratrix of decedent's estate is the only party who may maintain an action to recover the damages for his wrongful death. Jensen v. Chicago, M. & St. P. R. Co., 198 Iowa 1267, 201 N.W. 34; (Evans, J.), Lewis v. Maddy, 187 Iowa 603, 174 N.W. 346; Major v. Burlington, C. R. & N. R. Co., 115 Iowa 309, 88 N.W. 815; (Ladd, J.), Mowry v. Chaney, 43 Iowa 609, 611; Van Wie v. United States, D.C.Iowa, 77 F.Supp. 22, 47 (Judge Graven). See also 25 C.J.S., Death, § 58, p. 1169. We do not understand plaintiffs dispute the proposition just stated. They contend by reason of section 85.22 the insurance company is entitled to recover the full damages that accrued to the estate.

Section 85.22 is too long to set out here in full. So far as now material it provides: 'When an employee receives an injury for which compensation is payable under this chapter, and which injury is caused under circumstances creating a legal liability against some person other than the employer to pay damages, the employee, or his dependent, * * * may take proceedings against his employer for compensation, and the employee or, in case of death, his legal representative may also maintain an action against such third party for damages. When an injured employee or his legal representative brings an action against such third party, a copy of the original notice shall be served upon the employer by the plaintiff, * * * and the following rights and duties shall ensue:

'1. If compensation is paid the employee or dependent * * * under this chapter, the employer by whom the same was paid, or his insurer which paid it, shall be indemnified out of the recovery of damages to the extent of the payment so made, * * *.

'2. In case the employee fails to bring such action within ninety days, * * * after written notice so to do given by the employer or his insurer, as the case may be, then the employer or his insurer shall be subrogated to the rights of the employee to maintain the action against such third party, and may recover damages for the injury to the same extent that the employee might. In case of recovery, the court shall enter judgment for distribution of the proceeds thereof as follows:

'a. A sum sufficient to repay the employer for the amount of compensation actually paid by him to that time.

'b. A sum sufficient to pay the employer the present worth * * * of the future payments of compensation for which he is liable, * * *.

'c. The balance, if any, shall be paid over to the employee * * *.'

The vital part of this statute is subsection 2. For present purposes it may be further shortened to read: 'In case the employee fails to bring such action within ninety days, * * * after written notice so to do given by the * * * insurer, * * * insurer shall be subrogated to the rights of the employee to maintain the action * * * and may recover damages for the injury to the same extent that the employee might.'

As we have stated, the petition alleges the insurer gave the administratrix notice to commence action against defendants and she failed to do so. Defendants do not claim proper and timely notice was not given the administratrix. Their contention is that subsection 2 does not provide the insurer is subrogated to the rights of the legal representative of an employee who has been fatally injured to recover damages therefor. It is not questioned that the statute provides for subrogation in favor of the insurer where an employee suffers a nonfatal injury.

If section 85.22 stood alone there might be grave doubt the insurance company would be entitled to recover to the same extent the administratrix could, in the event defendants are legally liable to pay damages for decedent's death. Indeed it may be conceded the insurer would not have such right. In determining the meaning of subsection 2, however, we must consider the statutory definitions in section 85.61 of the terms used in chapter 85. It is of course fundamental that in seeking the meaning of a law the entire act should be considered. Davis v. Davis, 246 Iowa ----, 67 N.W.2d 566, 573, and citations.

Section 85.61 states: '4. * * * Any reference to a workman or employee who has been injured shall, when such workman or employee is dead, include his dependents as herein defined or his legal representatives; * * *

'5. The words 'injury' or 'personal injury' shall * * * a. * * * include death resulting from personal injury.'

The word 'employee' appears three times in the first paragraph of subsection 2 of 85.22. It is clear each reference is to an employee who has been injured. Indeed the entire section refers to an employee who has suffered 'an injury for which compensation is payable.' It is equally clear the employee here is dead. Under the above definitions in section 85.61, subsection 2 of 85.22 has the same force and effect in this case as if each reference therein to 'employee' were followed by such language as 'or in the event of his death, his legal representative.' Further, the single reference in subsection 2 to 'injury' includes death resulting therefrom.

Unless we reject the statutory definition of 'employee' and 'injury' in section 85.61, subsection 2 of 85.22 clearly provides the...