Sloan v. Appalachian Electric Power Co.

• Decision Date: 29 March 1939
• Citation: 27 F. Supp. 108
• Court: U.S. District Court — Southern District of West Virginia
• Parties: SLOAN v. APPALACHIAN ELECTRIC POWER CO.

27 F. Supp. 108

SLOAN v. APPALACHIAN ELECTRIC POWER CO.

District Court, S. D. West Virginia.

March 29, 1939.

R. G. Lilly, of Charleston, W. Va., for plaintiff.

J. B. Meek, of Huntington, W. Va., for defendant.

E. Paul Williams, of Ashland, Ky., for intervener.

HARRY E. WATKINS, District Judge.

Plaintiff, a resident of Kentucky, instituted this action against defendant, a resident of West Virginia, to recover $15,000 damages for personal injuries sustained in West Virginia. The matter is now before me upon motion of the Employers' Liability Assurance Corporation to intervene as a party plaintiff under Rule 24(a) and (b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

Plaintiff was employed in the State of Kentucky by Catlettsburg, Kenova and Ceredo Water Company and was injured in the course of his employment while temporarily in West Virginia. He alleges that his injuries, a severe electric shock, were caused by the negligence of the defendant power company in the maintenance of its power lines. The water company carried an insurance policy with the insurance company, whereby the latter agreed to carry or adjust any workman's compensation claims which would arise against the water company. Plaintiff made claim for his injuries to the water company. This claim was accepted and is being paid by the insurance company. The insurance company has paid plaintiff $12.48 per week since the date of injury and will continue to pay him for such time as specified under the Kentucky Compensation Act (Ky.St. § 4880 et seq.), including medical expense not to exceed $400. It asks to intervene as a party plaintiff in order that such expenditures may be recovered out of any judgment against the power company. The plaintiff resists such motion.

The insurance company bases its right of subrogation upon Section 4890 of Baldwin's 1936 Revised Edition, Kentucky Statutes. That statute provides as follows: "§ 4890. Injuries caused by third persons. — Whenever an injury 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 employe may at his option either claim compensation or proceed at law by civil action against such other person to recover damages, or proceed both against the employer for compensation and such other person to recover damages, but he shall not collect from both, and if compensation is awarded under this act either the employer or his insurance carrier, having paid the compensation or having become liable therefor, shall have the right to recover in his or its own name or that of the injured employe from the other person in whom legal liability for damages exists not to exceed the indemnity paid and payable to the injured employe. (March 23, 1916, c. 33, p. 354, § 9; as amd. March 22, 1922, c. 50, p. 167, § 2.)"

This statute has been fully construed by the Supreme Court of Kentucky in Berry, et al. v. Irwin, et al., 224 Ky. 565, 6 S.W.2d 705. There suit was brought by the...