United States Fid. & Guar. Co. Inc v. Blue Diamond Coal Co. Inc

• Decision Date: 26 September 1933
• Citation: 170 S.E. 728
• Parties: UNITED STATES FIDELITY & GUARANTY CO., Inc. v. BLUE DIAMOND COAL CO., Inc.
• Court: Virginia Supreme Court

170 S.E. 728

UNITED STATES FIDELITY & GUARANTY CO., Inc.

v.BLUE DIAMOND COAL CO., Inc.

Supreme Court of Appeals of Virginia.

Sept. 26, 1933.

Error to Circuit Court, Lee County.

Action by notice of motion for judgment by the United States Fidelity & Guaranty Company, Incorporated, against the Blue Diamond Coal Company, Incorporated. Judgment for defendant dismissing the action, and plaintiff brings error.

Reversed and remanded.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, and BROWNING, JJ.

V. C. Dotson, of St. Charles, and E. Lynn Minter, of Kingsport, Tenn., for plaintiff in error.

Pennington & Pennington, of Pennington Gap, for defendant in error.

EPES, Justice.

This is an action instituted on April 11, 1932, by a notice of motion for judgment by United States Fidelity & Guaranty Company. Incorporated, hereinafter called the plaintiff, against Blue Diamond Coal Company, Incorporated, hereinafter called the defendant. The notice of motion for judgment together with the exhibits filed therewith as parts thereof states the following case:

The St. Louis Structural Steel Company was engaged in the construction of a coal tipple for the defendant at the latter's plant in Lee county, Va. The plaintiff was the insurer of this contractor's liabilities under the Workmen's Compensation Act. Among the men employed by the St. Louis Structural Steel Company on the construction of this tipple was John Beres.

The steel for the construction of the tipple was loaded on cars by the St. Louis Structural Steel Company, but, when loaded, they were taken in charge by the defendant and hauled up the mountain by it by means of a cable operated by a hoisting engine.

On August 1, 1930, while Beres, in the course of his employment, was engaged in loading steel on a car, he was injured as the result of the negligence of the defendant's servant, who was operating the hoisting engine.

On July 31, 1931, just one day before the statute of limitations (section 25 of the Workmen's Compensation Act, Code, §1887 (25) would have barred his claim, Beres filed with the Industrial Commission his claim for compensation for this injury under the Workmen's Compensation Act. On November 9, 1931, the Industrial Commission made an award to Beres against his employer and its insurer, the plaintiff, awarding to him compensation in the sum of $14 per week for fifty weeks, beginning October 20, 1931, and costs amounting to $30.60. The amount of this award, aggregating $730.60, was paid to Beres by the plaintiff; and, by virtue of section 12 of the Workmen's Compensation Act (Code, § 1887 (12), the plaintiff "is subrogated to the rights of the said John Beres and St. Louis Structural Steel Company" against the Blue Diamond Coal Company, Incorporated, by the negligence of whose servant he was injured, "and has the right to enforce such rights and duties in its own name."

The notice concludes: "By reason whereof and as the proximate result of which, the undersigned (i. e., the United States Fidelity & Guaranty Company, Incorporated) has been damaged to the extent of $730.60 with interest from the ----day of October, 1931."

To this notice the defendant demurred on the ground "that the said notice shows on its face that said plaintiff, which sues by the right of subrogation provided for in subsection 12 of section 1887 (i. e., section 12 of the Workmen's Compensation Act, Acts 1930, p. 406, c. 158), did not bring its suit within one year from August 1, 1930, within which time this action should have been brought to comply with section 5818 of the Code."

The court sustained the demurrer and dismissed the action. The plaintiff applied for, and has been granted, a writ of error to this judgment. It alleges that the court erred in sustaining the demurrer for reasons which it states as follows:

"1. The demurrer in this case, which is in effect a plea of the statute of limitations, should have been overruled by the court because the limitation of an action is a question of fact and not a question of law.

"2. Under the pleadings in this case, and the exhibits filed therewith, the relation of the parties herein is as a general creditor, with a claim for money loaned or expended. The statute of limitations applicable would be section 5810 of the Code of Virginia, rather than section 1887 (25) or section 5818 of the Code of Virginia.

"3. The statute of limitation applicable began to run the date Petitioner suffered pecuniary loss, at which time a new right was created.

"4. The judgment of the Court precluded petitioner from amending his notice of motion for judgment, so as to include therein a count as a creditor for money loaned and expended.

"5. By subrogation no action arises until some pecuniary loss is suffered.

"6. The general law with reference to the rights of parties not within the purview of the Compensation Act governs as to the statute of limitations and not section 1887 (12) or (25)."

The pertinent parts of sections 12 and 25 of the Workmen's Compensation Act and of section 5818, Code of Virginia 1919, read as follows:

Section 12: "* * * The acceptance of an award under this act against an employer for compensation * * * shall operate as an assignment to the employer of any right to recover damages which the injured employee * * * may have against any other party for such injury or death, and such employer * * * may enforce, in his own name * * * the legal liability of such other party. If the injured employee * * * has made a claim under this act against his employer, and has not proceeded against such other party, the employer may, in order to prevent the loss of his rights by the passage of time, institute such action prior to the making of an award hereunder. * * *" (Italics ours.)

-"Where any employer is insured against liability for compensation with any insurance carrier, and such insurance carrier, shall have paid any compensation for which the employer is liable or shall have assumed the liability of the employer therefor, it shall be subrogated to all the rights and duties of the employer, and may enforce any such rights in its own name or in the name of the injured employee. * * *" (Acts 1930, p. 406, c. 158, Code, § 1887 (12).

Section 25: "The right to compensation under this act shall be forever barred, unless...