The policy of insurance within itself is clearly not in compliance with the workmen's *Page 640 compensation law. However, there was attached to the insurance policy a rider, under the provisions of which it is sought, in this proceeding, to recover against the insurance company. The rider provided that the liability of the antimony company for compensation to its injured employees is covered by the policy of insurance, and that the employees shall have the right to enforce in their own names the liability of the insurance company for the payment of compensation "by at any time filinga separate claim or by at any time making the insurance companya party to the original claim." The expression, "by filing a separate claim," evidently means filing a separate claim with the insurance company, since there would be no necessity for filing a separate claim anywhere else or with anybody else. The expression, "by making the company a party to the original claim," means that the insurance company shall be made a party to the original claim for compensation. The insurance company has a right to stand upon the terms of its contract. Two methods are provided in the contract of insurance by which the liability of the insurance company may be enforced; and it would seem necessary to pursue one of such methods in order to hold the insurance company. No claim, separate or otherwise, was ever filed with the insurance company. The insurance company has never been made a party to the original claim, unless it may be said that the proceedings instituted by appellant in the district court on June 30, 1921, about two and one-half years after the death of Mr. Hauter, may be considered as such. In other words, can a notice to an insurance company, in a proceeding supplementary to execution, be considered "making the company a party to the original claim"?
Not only does the rider attached to the insurance policy presuppose the filing of a claim for compensation, but the workmen's compensation statute requires that a claim for compensation shall be in writing (C. S., sec. 6244) and shall be made within one year after death or injury. (C. S., sec. 6243.) It is recited by the board that a claim *Page 641 was filed by appellant and presented to the antimony company. There is no contention that the insurance company was ever served with the claim, a copy thereof, or with a separate claim. On November 6, 1920, the board made an award against the Antimony Mining Company. Thereafter and on March 25, 1921, the district court made and entered judgment upon the award in favor of appellant and against the antimony company. (C. S., sec. 6271.) In these proceedings the insurance company was not mentioned; it was not made a party to the claim, or award or action.
On June 30, 1921, a petition was filed in the district court praying that "an order be made and issued by this court, making the Aetna Life Insurance Company a party to this action and directing it to appear. . . . ." Respond ent answered, and, among other things, alleged that appellant had never at any time filed any separate claim against respondent and had never made respondent a party to the original claim for compensation. In my opinion the filing of a petition in the district court, as was done in this case, praying that respondent be made a party to the action and be required to show cause why execution should not be issued against it, is not and cannot reasonably be held to be the making of the insurance company a party to the original claim. The original claim was merged in the award made by the board just as the award later became merged in the judgment entered on the award.
I cannot agree to the conclusion reached by the majority in the opinion on rehearing. *Page 642