313 Ky. 305 | Ky. Ct. App. | 1950
Reversing.
John Faulkner, an employee of the Hinkle Contracting Company of Paris, Kentucky, was killed on April 5, 1945, when the automobile in which he was riding col
On this appeal it is agreed that the sole question presented is whether an insurance carrier of an employer operating under the provisions of the Workmen’s Compensation Act can recover from a third party the total loss such insurance carrier has suffered due to the negligence of the third party causing an injury to a protected employee. The answer depends on the proper construction of KRS 342.055. This section was amended in 1948 in a manner not material here, and prior to its amendment read: “Whenever an injury for which compensation is payable under this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages, the injured employe may either claim compensation or proceed at law by civil action against such other person to recover damages, or proceed both against the employer for compensation and such other person to recover damages, but he shall not collect from both * * * If compensation is awarded under this chapter, either the employer or his insurance carrier, having paid the compensation or having become liable therefor, may recover in his or its own name, or that of the injured employe from the other person in whom legal liability for damages exists, not to exceed the indemnity paid and 'payable to the injured employe.”
It is appellee’s contention that under this statute the employer or his insurance carrier is entitled to recover from the tort feasor the full amount of the compensation award regardless of the amount recovered from the tort feasor in a common law action by the injured employee or by his personal representative or dependents if his injuries resulted in death. We are of the opinion that the statute is not susceptible to such construe
“In an action brought by or for the employer, under section 14, therefore, the legal liability of the defendant and the measure of damages are the same as if the action had been brought by the injured employee, to determine which of the parties are entitled to a jury; and if damages to which the injured employee is entitled are less than the compensation paid or payable by the employer, his recovery will be limited accordingly. If the damages to which the injured employee would have been entitled are greater than the amount of compensation paid or payable, the recovery will nevertheless be limited to the latter amount by the terms of the statute.” (160 Tenn. 248, 23 S.W.2d 247.)
In the present case a jury in an action by the representative of the deceased employee fixed the common law
The judgment is reversed with directions to overrule the demurrer to paragraph 2 of the answer as amended.