Opinion by
One young man was killed and another injured when the agent of Herdt, original defendant, maladroitly cut the supporting bands of a kiln and it collapsеd.
The administratrix and the injured man sued Herdt, who brought in as additional defendant Friedl-Elverson Pottery Company, on whose property the accident occurred and who employed the men. At the trial the jury awarded the injured plaintiff $50,000 and the administratrix plaintiff $20,665.63 against the additional defеndant and exonerated the original defendant. Judgments were taken on these verdicts. The additional defendant then moved to mark the judgments satisfied. The court below made absolute the rule to do this and the plaintiffs have appealed.
The reasons for the court’s аction were that'an award of workmen’s compensation was made' to each. *454 man, that these awards are being paid, and thаt they supersede the common law remedy for negligence.
It appears that in the compensation proceedings the parties stipulated that the injured men were employees of the additional defendant and that the awards were made on that basis.
The plaintiffs argue that an award by agreement or stipulation is not res adjudícala and can be set aside for mistake of fact or law; that the true naturе of the relationship of the plaintiffs with the additional defendant was that of contractor and eontractee; and that by introducing еvidence as to independent contractor-ship, at the hearing on the rule to mark the judgments satisfied, the additional defendant waived its right to assert the doctrine of res adjudícala or collateral estoppel.
In the pleading between the original and additional defendants it was the former who averred that the working rеlationship of the plaintiffs was not that of employer and employe. That the additional defendant then sought to prove this position with evidence was an error in battle tactics, since it was unaffected by the negligence judgments, but it probably wanted to make assurance doubly sure, since the verdicts were against it alone, and tie in its fellow defendant on any handy theory: but this does not, in our opinion, change the picture. The reason for the original defendant’s raising the question of relationship was to preserve its right to contribution in casе of a verdict against both defendants, since its claim against the additional defendant was limited by the compensation agreement:
Maio v. Fahs,
In that action, i.e., for negligence, the employment status of the plaintiffs could xxot have been disclosed to the jury:
McIntyre v. Strausser,
In
Socha v. Metz,
“It so happens, however, just as in the instant case, that an employer may be required to defend his еmployee’s trespass action for personal injuries received in the coxxrse of his employment when the employer is sxxmmonеd as an additional defendant or is sued jointly with axxother for such injuries. But, that procedure is for the sole and exclusive purpose of рrotecting the original or third-party defendant’s right of
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contribution from tbe employer and does not ascribe to the employee оr bis representative a common law right against bis employer for damages for injuries suffered in tbe course of bis employment. Such- was рlainly recognized by this court in Maio v. Fahs,
And on tbe point that tbe judgments are nullities vis-a-vis tbe additional defendant, tbe Socha opinion adds: “Tbe City bas never assailed the validity of tbe judgment but merely contends that it imposes no liability on tbe defendant employer so far as tbe plaintiff is conсerned. When a judgment at law bas no standing as an enforceable liability of tbe one against whom it is entered, tbe equity powers of the сourt are called into play to the end that execution on tbe judgment be denied and that it be marked satisfied. . . .”
As for tbe plaintiffs’ argument that tbe additional defendant is estopped to interpose tbe bar of the workmen’s compensation awards, tbe court below bаs decisively disposed of it as follows: “Of course if tbe employer were estopped by bis conduct at tbe trespass trial we might havе a different problem before us, but we note not one element to support a theory of estoppel. It did not voluntarily refrain frоm setting up at tbe trial its defense of a workmen’s compensation award or tbe employer-employee relationship betwеen the parties. It was obliged to do what it did as a matter of law. If tbe doctrine of estoppel is applicable to either party it is applicable to tbe plaintiffs, who declared under oath at tbe workmen’s compensation hearings that tbe relationshiр between Friedl-Elverson Pottery Company on tbe one band and Winters and Smith on the other band was that of employer and employee. Tbe additional defendant, by its insurance carrier, has abided by the judgment of the Workmen’s Compensation Board by paying, as required, ever since *457 June, Í956. No direct attack has been made against those judgments, even to this date on the grounds of fraud or otherwise. The plaintiffs cаnnot eat their cake and have it.”
We also invite attention to our recent decision, upholding the above principles, in
J. W. Brown Equipment Corp. v. Dickey,
We are impelled to the reflection, in conclusion, that if the jury’s verdicts had bée'n less than' the compensation awards, the case would not be here.
The order is affirmed, costs to be paid by appellants.