33 A.2d 653 | Pa. Super. Ct. | 1943
Argued April 16, 1943.
A third party who has notice cannot, by settlement with an employee, deprive an employer (or insurance carrier) of the subrogation right granted by the Workmen's Compensation Law.Smith v. Yellow Cab Co.,
The lower court held not and sustained defendants' *451 affidavit of defense raising questions of law. Plaintiffs have appealed.
We agree with the lower court. Section 319 of the Workmen's Compensation Law, Act of 1915, June 2, P.L. 736, as amended; reenacted 1939, June 21, P.L. 520,
It does not follow from the fact that the settlement deprived plaintiffs of none of their rights and that they can maintain an action in their own name as the real parties in interest under Rule 2002, Pennsylvania Rules of Civil Procedure, that they can recover without proving liability; a shield is not a sword. And unless we were to repudiate well established principles, we are bound to hold that the settlement is no evidence of defendants' liability to the employee. See Spector v. Grossman,
Our conclusion has the support of the Supreme Court of Errors of Connecticut which, in U.S. Fidelity Guaranty Co. v. NewYork, N.H. H.R.R. Co., *452
Prior to 1937, the Georgia Workmen's Compensation Statute gave the right of subrogation to an employer "under circumstances creating a legal liability in some person." Georgia Code (1933) § 114-403. The 1937 amendment (Georgia Laws, pp. 528, 530) changed the words just quoted to: "Under circumstances whereby payment is made by some person." The obvious intention of the legislature was to meet the situation presented in the present case and relieve the employer of the necessity of proving the liability of the third party. The Georgia Court of Appeals, Division No. 2, so held in General Accident Fire Life AssuranceCo. v. King Mfg. Co., 60 Ga. Appeals 281, 3 S.E.2d 841, but in 1940 the Georgia Supreme Court, in Lloyd Adams, Inc. v. LibertyMutual Ins. Co.,
To the same effect is Southern Surety Co. of New *453 York v. Chicago etc. Ry. Co.,
We have given careful consideration to Traders Gen. Ins. Co.v. West Texas Utilities Co.,
The order is affirmed.