John Smith v. Yellow Cab Co. , 87 Pa. Super. 143 ( 1925 )

I am obliged to dissent from the majority opinion. As I read the Workmen's Compensation Act of this State it does not warrant, what is in effect, the bringing of an independent action by the employer against the tortfeasor. The employer's right of subrogation must be worked out through the action brought in the name of the injured employee. He may protect his interests by intervening as an additional party plaintiff (Gentile v. P. R. Ry. Co., 274 Pa. 335), or as a use plaintiff (Mayhugh v. Somerset Tel. Co., 265 Pa. 496 ; Stoughton v. Gas Co., 165 Pa. 428), or, possibly, by having reference to his interest incorporated in the plaintiff's statement of claim in the same way as when a widow sues on behalf of herself and children for the damages sustained by the death of her husband. If he fails to adopt any of these courses, and the action instituted by the employee against the tortfeasor is settled by the record parties to the litigation, he cannot bring a second action against the tortfeasor to recover his interest in the settlement. His remedy, in such circumstances, is against the employee who by virtue of the settlement has received money properly payable to the employer: Illinois Auto. Ins. Exch. v. Braun, 280 Pa. 550; or in case of continuing disability, he may offset the sum received in settlement against the compensation payments thereafter due the employee; or perhaps, if circumstances warrant it, he may move to strike off the discontinuance, as suggested in the majority opinion. If a widow with children brings an action against a tortfeasor for the death of her husband, and a settlement is effected, without regard to the children, they have no additional right of action, either in the name of their mother, or in their own name, against the tortfeasor; their remedy is against the mother: Shambach v. Middlecreek Elec. Co., 232 Pa. 641.

An injured party may bring only one action against a wrong-doer for damages arising out of the tort: Fields v. Phila. R.T. Co.,273 Pa. 282. And when the record parties have settled it, the right of action ends with it and cannot be revived by a new and distinct suit even though brought in the name of the injured party by a person who has a right of subrogation against him.

However desirable it may be to grant the employer, what is in effect, a separate and distinct right of action against the tortfeasor, our Legislature has not seen fit to do so.

I would reverse the judgment on this ground. I have no doubt as to the constitutionality of the section of the act under consideration, if restricted to the methods outlined above.