A petition for rehearing, accompanied by an elaborate brief, has been filed in this case. The petition is predicated on the sole contention that the court erred in reaching the following conclusion:
". . . . the admission in evidence of a certified copy of the policy of insurance, the summary of the award by the Industrial Accident Board, and the Compensation Agreement signed by guardian L.R. Loomis and Lebak's employer awarding compensation to the three minor children, was prejudicial to the appellants."
Since respondent's contention raises not only the question of procedure but an issue as to the substantive law under section43-1004, I. C. A., we deem it proper to make some further observations on the specific issue raised. The statute says that,
"When an injury for which compensation is payable under this act shall have been sustained under circumstances creating in some other person than the employer a legal liability *Page 119 to pay damages in respect thereto, the injured employee may, at his option, either claim compensation under this act or obtain damages from or proceed at law against such other person to recover damages; and if compensation is claimed and awarded under this act any employer having paid the compensation or having become liable therefor shall be subrogated to the rights of the injured employee to recover against that person: provided, if the employer shall recover from such other person damages in excess of the compensation already paid or awarded to be paid under this act, then any such excess shall be paid to the injured employee less the employer's expenses and costs of action."
It must be remembered that the Workmen's Compensation Law is a remedial and special law providing compensation for injured employees, without reference to any question of negligence, either on the part of the employer or employee. Consequently, an award made to a workman under this act bears no relation whatever to any negligence on the part of the employer, a stranger or anyone else. When an award is made under this act in favor of an employee, and liability attaches in favor of the employer or insurance carrier, or both, the statute at once confers upon such employer or insurance carrier, or both, a right of action against any third party who may have caused or wrongfully contributed to the injury of the employee.
The statute does not attempt to take away from the workman his right of action against a third party for any tort that may be committed against him by such person or persons. An action prosecuted against a third party or tort feasor must necessarily rest upon the law of negligence and be tried to a jury the same as any other action for negligence. To introduce the record and award by the Industrial Accident Board, awarding compensation under the Workmen's Compensation Act, as evidence against a third party, might become very prejudicial and strongly tend to lead a jury to the conclusion that an injury and wrong had been committed, and that the defendant is liable therefor, or, on the contrary, it might prejudice the plaintiffs' case by the thought that the employee had already been compensated. *Page 120
On the other hand, the jury in such trial have nothing to do with the question as to whether or not the employee has sought and recovered compensation under the compensation act. It is true that it is necessary for an employer or insurance carrier to allege such fact in order to state a cause of action under the subrogation statute. But that allegation is necessary only for the purpose of showing that he or it is a proper party plaintiff in the action. If the allegation is admitted, there is no occasion for any proof to the court. If the allegation is denied, then that is a proper matter to be determined by the court before entering upon the trial to the jury. It is a question of law to be determined by the court, as to whether subrogation arises and not a question for the consideration of the jury.
In such cases as this, it will be proper for the court to inform the jury by appropriate instruction that the employer and insurance carrier appear as, and are, proper parties plaintiff because of the fact that they have been legally subrogated to the rights of the employee or his beneficiaries, because of their liability to pay benefits under the Workmen's Compensation Act; and that the jury will have nothing to do with the question as to any sum or amount such plaintiffs may be liable for under the compensation act. They should be further advised that liability, under the compensation act, is not dependent on negligence, whereas, the present action is for negligence and that the duty of the jury is simply to determine whether or not the defendant was guilty or innocent of negligence; and if they determine that he was guilty of negligence, then fix the amount of damages they think proper to award under the instructions. If after the trial it appears that a verdict has been obtained for more than plaintiff has paid or become liable for, it will then become the duty of the court to prorate the judgment under the statute between the employer, insurance carrier and employee.
Petition for rehearing is denied.
Budge and Holden, JJ., concur.