dissenting.
If I felt this court was bound by the decision in Thomas v. Town of Savannah Beach, 66 Ga. App. 178 (2) (17 SE2d 747) I might be constrained to the majority view. This decision was by three judges, one of whom concurred in the judgment only (Judge Felton). I agree with Judge Felton that the judgment was correct and that the rights of the employer or insurer under then, Code § 114-403, had become vested and were unaffected by the amendment of 1937 (Ga. L. 1937, p. 528), changing the insurer’s right to subrogation to apply to the net proceeds or the net recovery as distinguished from a gross recovery in a separate suit by the claimant against a tortfeasor. In that case a judgment had been obtained and money paid in settlement of the judgment. Under these circumstances, the res, or thing, upon which the sub-rogation operated had become established and the rights therein vested. I do not agree, as was ruled in the Thomas case, that the rights of the insurer became vested in such gross recovery at the time of the injury to the employee. In the case of Travelers Ins. Co. v. Bagwell, 116 Ga. App. 675 (158 SE2d 267), a case of attempted *455intervention by the insurance carrier in a Workmen’s Compensation case where the claimant had brought a common law suit against the tortfeasor, this court held that the lien granted by Code § 114-403, as amended by Ga. L. 1963, pp. 141,145, was not effective for the reason that it was a lien on the recovery and there being at that time no recovery, the lien was not operative. In effect, what the court held was that in the absence of a res upon which to operate, there was no lien. Under that decision, I am unable to see that a vested right has been acquired in a net recovery which did not exist at the time the law was repealed.
The case of McMullen v. Liberty Mutual Ins. Co., 119 Ga. App. 410 (167 SE2d 360) (cited by the majority at the conclusion of Division 3 of the majority opinion as being in accord with the ruling in Thomas v. Town of Savannah Beach, supra), has nothing to do with the vesting of the insurer’s rights in a recovery against a third-party tort-feasor by a claimant, but relates only to the vesting of the claimant’s rights in an award already made. To this extent, and to this only, does it accord with the Thomas case. Neither does the case of Hartford Acc. & Indem. Co. v. Tolison, 118 Ga. App. 660 (165 SE2d 192), cited at the end of Division 4 of the majority opinion, support the conclusion of this Division of the majority opinion that the giving of a written notice of lien, provided by the statute, caused a vesting of the lien in a recovery not then had or existing. In that case, the recovery against the third-party tortfeasor was existing and was held by the claimant, and no written notice of lien had been given. In reaching a conclusion that the insurer could still give a notice, the court said (p. 661): "It is readily apparent from the plain wording of the statute that it is only 'upon giving such written notice’ that a lien against the recovery and right to subrogation arises by virtue of that statute.” "The recovery” referred. to in this statement was a recovery already had and existing, and further the language quoted is not a holding that upon the giving of a written notice a lien is vested in a recovery not in existence.
The legislature, by repealing in its entirety Code § 114-403, granting subrogation rights to the Workmen’s *456Compensation insurer, indicated, as a matter of public policy, that the privilege granted (see Fulton Bag & Cotton Mills v. Williams, 212 Ga. 783 (1) (95 SE2d 848)) was no longer in effect. This being so, the contract of insurance, if it contained provisions therein to the contrary, was to that extent unenforceable. See State Farm Mut. Auto. Ins. Co. v. Harper, 125 Ga. App. 696 (1) (188 SE2d 813). To hold otherwise would contravene the very act of the Legislature in repealing the privilege granted and permit the insurer, by contract, which the employee has not seen or agreed to, to bind him in a matter which was not to his benefit and contrary to public policy. I concede that as a third-party beneficiary he may be considered to be a party to the contract (see General Acc. &c. Corp. v. John P. King Mfg. Co., 60 Ga. App. 281, 282 (3 SE2d 841) and Code Ann. § 3-108), but he is not bound by a provision not for his benefit but contrary to and in derogation of the benefits granted to him by the Compensation Act. In the General Acc. &c. Corp. case, supra, cited by the majority, the contract of insurance was in accordance with the Workmen’s Compensation Act as it then existed, and any agreement in the policy in reference to subrogation is held to refer to that provided by statute. See Glens Falls Indem. Co. v. Liberty Mut. Ins. Co., 202 Ga. 752, 758 (44 SE2d 543), in which it was said: "The subrogation clause, being a part of the policy issued in conformity with the Workmen’s Compensation Law, was obviously intended to apply in favor of the compensation-insurance carrier making the payment as against a tortfeasor who inflicted the injury for which compensation was made as provided by law. Code § 114-403 as amended.” It would seem to follow that if the statute be repealed, the provision in the contract is likewise abrogated.
I, therefore, conclude that neither by any vested right nor by the provisions of the contract can the insurer here prevail as against the claimant or any recovery had by him in his action against the joint tortfeasor.
I would affirm the judgment in case No. 48748, and reverse the judgment in case No. 48732.