Wilson v. Pittsburgh B. & I. Works
| Decision Date | 09 July 1925 |
| Docket Number | 34-1925 |
| Citation | 85 Pa.Super. 537 |
| Parties | Wilson v. Pittsburgh B. & I. Works. Chicago Railway Equipment Company, Appellant |
| Court | Pennsylvania Superior Court |
Argued April 20, 1925
Appeal by Chicago Railway Equipment Company, from judgment of C.P Beaver Co.-1922, No. 62, in the case of Lester Wilson v Pittsburgh Bridge & Iron Works, a corporation.
Trespass for personal injuries. Before Reader, J.
The facts are stated in the opinion of the Superior Court.
Verdict for plaintiff in the sum of $ 4,133.40. The Chicago Railway Equipment Company presented a petition to be subrogated to plaintiff's right in the verdict. The petition was granted after deducting from the verdict the costs and reasonable counsel fees incurred by plaintiff. Petitioner appealed.
Error assigned was the decree of the court.
J. Roy Dickie, of Dickie, Kier & McCamey, and with him Dan H. Stone for appellant. -- An employer is entitled to be subrogated to the whole verdict, if the compensation paid and for which it is liable equals or exceeds the amount of such verdict Phelan v. Armstrong Cork Company, 29 D.R. 461; Lengle v. North Lebanon Township, 274 Pa. 51; Smith v. Swain et al., 8 Dep. Rep. 1467.
Quincy D. Hastings, and with him Paul H. Baldwin, for appellee. -- Appellant waived its right to object to the court's order allowing counsel fees: Negley v. Lindsay, 67 Pa. 217; Avondale Marble Co. v. Wiggins, 12 Pa.Super. 577.
Before Henderson, Trexler, Keller, Linn and Gawthrop, JJ.
Lester Wilson, an employee of Chicago Railway Equipment Co., sustained injuries in the course of such employment, due to the negligence of Pittsburgh Bridge & Iron Works, resulting in permanent, total disability.
A compensation agreement was duly entered into between the employer and the employee under which the latter has received $ 1,267 by way of medical and hospital expenses and weekly compensation, and is entitled to further weekly payments of compensation not exceeding in all, $ 5,000.
Suit was brought by Wilson against the Pittsburgh Bridge & Iron Works to recover the damages occasioned by its negligence, and a verdict of $ 4,133.40 obtained. Thereupon the employer, Chicago Railway Equipment Co., presented its petition to the Court of Common Pleas of Beaver County asking to be subrogated to the rights of the plaintiff in said action and the verdict obtained therein, to the extent of the compensation payable under said agreement. After a full hearing upon the rule the court allowed $ 1,250 fees to the attorneys who prosecuted the action and obtained the verdict; directed that $ 1,267 be paid the employer petitioner in reimbursement of the compensation, etc., paid; and awarded the balance $ 1,616.40 to the employee plaintiff to be treated as an advance payment by the employer on account of future installments of compensation. Chicago Railway Equipment Co., the employer, appealed on the ground that none of the verdict recovered should have been awarded the attorneys, but that the sum allowed them should also have been treated as an advance payment by the employer.
Appellant's claim to subrogation is based on section 319 of the Workmen's Compensation Act of 1915, P. L. 749. It provides:
The statute does not say by whom the action against the negligent third person shall be brought. Considering the section as a whole it would seem that the right of action still remains in the injured employee and that suit must be brought in his name, the interest of the employer appearing either by his joinder as an additional party plaintiff, (Gentile v. P. & R. Ry. Co., 274 Pa. 335), or as a use-plaintiff (Mayhugh v. Somerset Telephone Co., 265 Pa. 496, 109 A. 213; Stoughton, part for use, v. Gas Co., 165 Pa. 428, 30 A. 1001), or by reference to his interest in the plaintiff's statement, as when a widow sues on behalf of herself and children for the damages sustained by the death of her husband. A failure to adopt any of these courses, however, does not prevent subrogation to the employer, in a proper case, out of the fund recovered, (Satterfield v. Wahlquist, 267 Pa. 378, 111 A. 253; Lengle v....
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