Action for personal injuries to an employee of another than defendant. On defendant's motion for summary judgment and plaintiff's motion for leave to amend his complaint, the Superior Court, Richards, P. J., held that the proposed amendment, alleging that plaintiff's employer's workmen's compensation insurance carrier, having paid compensation awarded plaintiff under the Workmen's Compensation Law, was subrogated to plaintiff's rights to bring the action on behalf of such carrier and of plaintiff in his name, related back to the date of the original complaint and hence was not barred by the statute of limitations, so that defendant was not entitled to summary judgment.
Plaintiff's motion allowed, and defendant's motion denied.
[48 Del. 116] Newton White, Wilmington, for plaintiff.
Herbert L. Cobin and William H. Foulk, Wilmington, for defendant.
RICHARDS, President Judge.
This action was brought in the name of Raymond Rogers, as plaintiff, to recover for personal injuries received by the said Raymond Rogers resulting from the alleged negligence of the defendant.
The complaint states that on July 26, 1949, the defendant mamtained and operated in the course of its business five electric power lines over and across lands of Ralph E. Holloway, trading as Showell Manufacturing Company, said land being located south of Frankford, in Sussex County, Delaware; that said electric power lines were supported by polies erected on said land and were charged with high voltage electric current, the voltage being unknown to the plaintiff; that the plaintiff while employed by Ralph E. Holloway on the day in question was engaged in cleaning out a well, on the land crossed by said high voltage electric power lines, with a length of galvanized iron pipe; that said pipe came in contact with one or more of said high voltage electric power lines as a result of which Raymond Rogers, the plaintiff, received severe electrical burns. After alleging various acts of negligence by the defendant, the complaint [48 Del. 117] sets forth that the plaintiff was injured as a direct result of the maintenance and operation of said high voltage electric lines over the land of the said Ralph E. Holloway while the plaintiff was on said lands in the course of his employment of Ralph E. Holloway.
The defendant's answer denies the allegations of the complaint, including the allegations of negligence, and then alleges contributory negligence by the plaintiff. As a further defense it is contended that the complaint does not state a cause of action upon which the plaintiff is entitled to recover, by reason of the fact that prior to the time of instituting this action and filing his complaint, he accepted compensation for his injuries under the provisions of the Delaware Workmen's Compensation Law, 19 Del.C. § 2301 et seq., and any cause of action which he may have had growing out of the injuries relied upon in his complaint, were transferred to his employer.
The defendant's motion for summary judgment is supported by the affidavit of Francis D. Buck, dated May 11, 1951, which states that he was Secretary of the Industrial Accident Board, which administers the Workmen's Compensation Law and was the custodian of its records, that said records disclose that Raymond Rogers was injured in July 26, 1949, and by agreements dated August 19, 1949 and April 26, 1950, both approved by the Industrial Accident Board, he elected to take compensation to be paid by his employer, Ralph E. Holloway, which has been paid to him since July 26, 1949.
The defense of contributory negligence was not pressed and will not be considered by me.
‘ The Delaware Workmen's Compensation Law of 1917’, being Title 19, Chapter 23, of the Code of 1953, provides for the payment by the employer and the acceptance by the employee, of compensation for personal injury or death by accident arising
out of and in the course of the employment, after certain provisions of said Act are complied with.
[48 Del. 118] The portion of said law which is applicable to the question raised by the defendant's motion for summary judgment, is Section 2363, of Title 19, of the Code of 1953, which provides for subrogation of the employer, whenever an injury for which compensation is payable shall have been sustained by the employee under circumstances creating ...