On Rehearing.
Richmond, January 12, 1933.
Hudgins, J.,delivered the opinion of the court.
A rehearing in this case was granted for fear that some expression in the original opinion might be construed to deny to the plaintiff in the trial court recovery for reasonable expenses and attorney’s fee incurred.
Subsection 12 of section 1887 of the Code' (workmen’s compensation act), prior to the 1932 amendment (chapter 279), as construed in Horsman v. Richmond, F. & P. R. Co., 155 Va. 934, 157 S. E. 158; Williamson v. Wellman, 156 Va. 417, 158 S. E. 777; and Tyler Corporation v. Evans, 156 Va. 576, 159 S. E. 393, provided that when an employee, injured by the negligent act of a party other than the employer, elected to accept an award under the act, he was forever barred from any recovery from the tort feasor. The acceptance of the award constituted an assignment of the right of action to his employer or the insurance carrier. If in such action, instituted for the benefit of the employer, or carrier, against the tort feasor, the amount of damage suffered by the injured employee and allowed by the jury exceeded the sum the employer was required by the act to pay the employee, he (the employer, or carrier) is permitted reimbursement for reasonable expenses and attorney’s fees incurred. In no *869event, however, should the award, the expenses and the attorney’s fee exceed the damage suffered by the employee or allowed by the jury. These items are expressly named in the fourth paragraph of subsection 12. Horsman v. R., F. & P. R. Co., supra; Tyler Corp. v. Evans, supra; and N. & W. Ry. Co. v. Faris, 156 Va. 205, 157 S. E. 819, held that the injured employee, when he has elected to accept compensation under the act, is limited to the amount fixed thereby. The case of Williamson v. Wellman, supra, limited the amount the employer might recover to the sums paid, or which he was liable to pay, the injured employee, plus reasonable expenses and attorney’s fee, if incurred.
If, in the judgment of the jury, the damage suffered by the employee exceeded these sums, the tort feasor was, to the amount of the excess, benefited by the act.
The jury, in the case at bar, found the amount of damage suffered by Mitchell to be $1,500, but the record does not reveal the amount of the award, the expenses and attorney’s fee incurred by the plaintiff below. For that reason final judgment could not be entered in this court, and the judgment was, and is, reversed, with direction to ascertain these facts.
It is useless to discuss the matter further, for by the 1932 amendment to the act it seems that in such actions instituted by or for the benefit of an employer or carrier, the injured employee, or his personal representative, is entitled to “the full amount of any recovery against a third (negligent) party less the amount of compensation paid or payable and other expenses provided for in this act,” and, to that extent at least, the legislature intended to modify the decisions in the cases cited.
While we think the plaintiff in error has substantially prevailed, within the meaning of Code, section 3528 (see Douglas Land Co. v. T. W. Thayer Co., 113 Va. 239, 74 S. E. 215), and hence is entitled to recover its *870cost in this court, in ascertaining the reasonableness of the attorney’s fee the trial court or jury should consider the work involved in the preparation and presentation of the case in this court.
With this addendum we adhere to the former opinion, and for the reasons stated the judgment of the trial court is reversed and the case remanded for the purposes herein stated.
Reversed and remanded.