Southern Surety Co. v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

• Decision Date: 16 October 1919
• Docket Number: 32973
• Citation: 174 N.W. 329,187 Iowa 357
• Parties: SOUTHERN SURETY COMPANY, Appellant, v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY, Appellee
• Court: Iowa Supreme Court

174 N.W. 329

187 Iowa 357

SOUTHERN SURETY COMPANY, Appellant, v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY, Appellee

No. 32973

Supreme Court of Iowa, Des Moines

October 16, 1919

Appeal from Woodbury District Court.--W. G. SEARS, Judge.

ACTION to recover from a wrongdoer the amount paid by an insurance company for personal injuries sustained by an employee for which the employer became liable under the Workmen's Compensation Act. Demurrer to plaintiff's petition was sustained. Opinion states the facts. Plaintiff appeals.

Affirmed.

Oliver Harding, Oliver & Royal, for appellant.

Jepson & Struble, for appellee.

GAYNOR J. LADD, C. J., WEAVER and STEVENS, JJ., concur.

OPINION

GAYNOR, J.

On the 21st day of June, 1918, the plaintiff filed its petition in the district court, in which it alleges that, on the 8th day of March, 1916, one W. W. Whitney, then in the employ of Philip Bernard Company, was injured, while in the course of his employment; that the injury sustained by Whitney was caused by the negligence of the defendant herein; that thereafter, the said Whitney brought an action against this defendant, in which he recovered the sum of $ 2,300, and this sum was paid to Whitney by the defendant company; that, on or about March 1, 1916, and for some time prior thereto, this plaintiff had insured the Philip Bernard Company against any liability which might arise out of any injuries received by its employees in the course of their employment, and for which Philip Bernard Company would become liable, under the provisions of the Workmen's Compensation Act of 1913 and supplement thereto; that plaintiff, under this insurance obligation to Philip Bernard Company, paid to Whitney the sum of $ 572.33, in compensation for loss of time and the necessary medical expenses incurred by him, under the provisions of the Workmen's Compensation Act.

The plaintiff claims that the defendant company, which was the wrongdoer and caused the injury, is now liable to this plaintiff, the insurer, for the money which it paid to Whitney under its insurance obligation, and it sets out and relies upon Section 2477-m6, Code Supplement, 1913, and prays judgment against the defendant for the amount paid.

The defendant appeared and demurred to plaintiff's petition on the following grounds:

First. Because it appears from said petition that this action is brought to recover for personal injuries sustained by one W W. Whitney on the 8th day of March, 1916, and the action was not begun until more than two years after said date, and said action is now barred by the statute of limitations.

Second. Because it appears from said petition that the plaintiff was surety for the Philip Bernard Company, the employer of Whitney, and its rights are determined by the Workmen's Compensation Act, as found in Section 2477-m6 of the Supplement of the Code of 1913. This section reads as follows:

"Where an employee coming under the provisions of this act receives an injury for which compensation is payable under this act and which injury was caused under circumstances creating a legal liability in some person other than the employer, to pay damages in respect thereof:

"(a) The employee or beneficiary may take proceedings both against that person to recover damages and against the employer for compensation, but the amount of the compensation to which he is entitled under this act shall be reduced by the amount of damages recovered.

"(b) If the employee or beneficiary in such case recovers compensation under this act, the employer by whom the compensation was paid or the party who has been called upon to pay the compensation, shall be entitled to indemnity from the person so liable to pay damages as aforesaid, and shall be subrogated to the rights of the employee to recover therefor."

It further appears from said petition that Whitney proceeded against the defendant, the actual wrongdoer, and recovered the full amount of his damages from it, and for this reason the plaintiff cannot now recover anything of this defendant, but must recover from Whitney the amount of compensation alleged by it to have been paid to him.

Third. Because, under the facts disclosed in this petition, the plaintiff cannot now recover of this defendant any sum of money paid by it to Whitney, because of full payment made to Whitney of said claim, as disclosed by said petition, and it must, therefore, recover, if at all, from said Whitney.

This demurrer was sustained generally, and, the plaintiff electing to stand on its petition, and not to plead further, judgment was entered against the plaintiff for costs, and its petition dismissed. From this the plaintiff appeals.

The petition submitted to us is whether or not this demurrer is good on any of the grounds presented. If it is good on any of the grounds, the court did not err in sustaining it. It involves only the proper construction of Section 2477-m6 of the Workmen's Compensation Act. It is apparent from the statute that, when Whitney received his injuries, he was entitled to proceed against his employer under this act. He was entitled to receive from his employer the compensation which is provided for in the act. We must assume that the injury occurred under such circumstances that Whitney's employer was liable to him under the act. We must assume that the compensation paid to Whitney was paid in accordance with the act. The compensation which Whitney became entitled to from his employer, or from this insurance...