Miller v. Ellis
Decision Date | 06 April 1956 |
Citation | 11 Terry 11,50 Del. 11,122 A.2d 314 |
Parties | , 50 Del. 11 Charles R. MILLER, Plaintiff, v. Harry ELLIS, Defendant. |
Court | Delaware Superior Court |
William Prickett, Wilmington, for plaintiff.
John S. Walker and Frank J. Miller, Wilmington, for defendant.
On June 6, 1954, the plaintiff was employed by Petrillo Brothers, Inc., at their sand lot as a laborer. He was working in a stone hopper when he was injured by a truck, owned and operated by the defendant, which rolled backwards into the hopper crushing him against its side.
Plaintiff elected to receive compensation pursuant to 19 Del.C. § 2344. At that time, and until June 23, 1955, 19 Del.C. § 2363(b) permitted an employer (or his insurance carrier) 1 who had paid Workmen's Compensation to an injured employee, to become subrogated to his rights. Such an employer could sue a third party for injuries to the employee provided that any judgment so obtained over and above the compensation paid out went to the employee.
On June 4, 1955, American Surety Company, the insurance carrier of the employer, commenced this action in the name of the injured employee. On June 23, 1955, Title 19, Chapter 23 (The Workmen's Compensation Act) was amended in numerous respects. Insofar as concerns the question here presented, an amendment to Title 19, § 2363, now permits an employee injured by some one other than a natural person in the same employ, 2 having elected to receive compensation, to sue such third person within 260 days of the date of the accident. If the employee does not elect to bring an action, then, for the remaining period permitted by the Statute of Limitations (105 days), the employer or his insurance carrier may maintain the action. The amendment reads:
Paragraphs 12 and 13 of defendant's answer are as follows:
By paragraph 12, defendant asserts that plaintiff, Miller, having elected to receive compensation, is not entitled to maintain this action. This is true but the amendment to the complaint showing that it is being maintained by employer's insurance carrier nullifies this argument.
By paragraph 13 of his answer, defendant is apparently contending that the amended Section 2363 must be given a retroactive effect. If this were done and if the status of defendant were that of 'a natural person in the same employ of the employer', then it would result that the right of subrogation granted to the employer (or insurance carrier) has been extinguished. 4 4 This would be so because at the time the suit was started, Section 2363 did not prohibit an action against a wrongdoer who was a 'natural person in the same employ' but to hold the amended act applicable bars the right to sue such 'natural person in the same employ.'
It is axiomatic that Courts do not favor retroactive legislation. As stated in Distefano v. Lamborn, 7 Terry 195, 83 A.2d 300, 301:
* * *'
See also Monacelli v. Grimes, 9 Terry 122, 99 A.2d 255 and Bethlehem Shipbuilding Corp. v. Mullen, 2 W.W.Harr. 55, 119 A. 314.
An examination of the amended Section 2363 demonstrates that the very language is that of amendment rather than repeal. Furthermore, it is clear that rights of parties are affected in several ways, viz.:
(1) Employee no longer has to elect between compensation or suit at law.
(2) No right of action now...
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