Mayhugh v. Somerset Telephone Co

109 A. 213, 265 Pa. 496, 1920 Pa. LEXIS 466

Opinion

Per Curiam,

Benjamin H. Mayhugh, an employee of the Bockwood Electric Light Company, was injured while in its employ, through the negligence of the Somerset Telephone Company, and recovered a judgment against it for $4,812, which we have this day affirmed in appeal No. 85, October Term, 1919. (See next case.) The State Workmen’s Insurance Fund paid the injured employee $1,-735.17 and the court below, on its petition, ordered that this amount of the judgment be marked to its use. From this order the Somerset Telephone Company has appealed. As we have affirmed the judgment against it, it cannot be prejudiced by payment to the State Workmen’s Insurance Fund, in discharge pro tanto of its liability to Mayhugh, and its appeal might well be dismissed for this reason alone, but, as the question of the right of the fund to be subrogated to the extent that it has paid for the injuries sustained by him has been raised, we pass upon it.

Section 319 of the Workmen’s Compensation Act of June 2, 1915, P. L. 736, provides: “Where a third person is liable to the employee or the dependents for the injury or death, the employer shall be subrogated to the right of the employee or the dependents against such third person, but only to the extent of the compensation payable under this article by the employe?. Any recovery against such third person in excess of the compensation theretofore paid by the employer shall be paid forthwith to the employee or to the dependents, and shall be treated as an advance payment by the employer on account of any future installments of compensation.” The 21st section of the act providing for the creation and administration of the State Workmen’s Insurance Fund, P. L. 1915, p. 762, is as follows: “In every case where a claim is made against the fund, the fund shall be entitled to every defense against such claim that would have been open to the employer, and shall be subrogated to every right of the employer arising out of such accident against the employee, the dependents, and against third persons.” The third person in this case was the Somerset Telephone Company. The right of the employer of Mayhugh to be subrogated to his right against it is expressly given by the Workmen’s Compensation Act, and, as the later act in equally express words gave to the fund the right to be subrogated to the right of the employer, the appeal from the order recognizing this statutory right is dismissed.

Order affirmed at appellant’s costs.