ON PETITION FOR REHEARING. Appellant, in his petition for a rehearing, contends our decision is erroneous because, he asserts, the provisions of §§ 48-6168, 48-6169 Burns' 1933 (Supp.), make the City of 5. Kokomo alone liable for the medical and hospital expenses of appellee and that this statute absolves appellee from all liability for these expenses. We do not agree with this construction of the statute here under consideration. In our opinion, these provisions are a part of the contract of employment between the city and appellee. Kirmse v. City ofGary (1944), 114 Ind. App. 558, 51 N.E.2d 883. With this contract appellant had no concern. Certainly these provisions were not intended to relieve appellant of a part of the liability for his wrong. We find support for this position in the case ofCity of Huntington v. Fisher (1942), 220 Ind. 83, 40 N.E.2d 699, wherein our Supreme Court held the statute providing for the payment of pensions to firemen who were disabled in the performance of their duty did not exclude them from the benefits of the Indiana Workmen's Compensation Act.
Furthermore, the record in this case discloses appellant filed a plea in abatement in which he averred appellee had received payment for his medical and hospital expenses from the City 6. of Kokomo pursuant to the statute, and had thereby subrogated his *Page 173 rights to said City. Appellee answered this plea by denying the allegations thereof. On the issues thus made the trial court found against appellant. Its action in this regard has not been questioned either in the court below or here. Therefore, any question which appellant might have raised on this matter has been waived.
Upon a careful reconsideration of the question presented by this appeal, we find no reason to change our original decision.
The petition for rehearing is denied.
NOTE. — Reported in 56 N.E.2d 496.