The opinion of the court was delivered by: GOURLEY
In this action based on negligence the insurance carrier of the employer by whom the deceased plaintiff was employed has petitioned the Court for leave to intervene in an action by the deceased employee's estate against third party tort-feasors. Workmen's compensation is being paid by the insurance carrier of plaintiff's employer to the dependents of deceased by virtue of Illinois law.
Jurisdiction rests on diversity of citizenship of the parties. 28 U.S.C.A. § 1332.
The First National Bank in Greensburg, as Administrator of the Estate of Grady Griffin, deceased, filed an action in the District Court of the United States for the Western District of Pennsylvania against M & G Convoy, Inc., a corporation, and Blodgett Uncrated Furniture Service, a corporation, to recover for the estate of the decedent the damages occasioned by the decedent's death on October 21, 1948 in the state of Pennsylvania. The decedent was a resident of the state of Alabama but was employed by an Illinois corporation. The action filed by the Administrator of the decedent's estate was a Survival action as distinguished from a Wrongful Death action under the laws of the Commonwealth of Pennsylvania.
Under the Survival Statute of Pennsylvania the measure of damages is:
(a) Compensation for pain and suffering until death ensued.
(b) For loss of earnings for the decedent's expectancy of life, less the probable cost of his future maintenance reduced to present worth.
(c) Compensation for loss of earning power until the date of trial is not reduced to its present worth. Pennsylvania Bar Association Quarterly, Volume XXIII, Oct. 1951, p. 18; Murray, Adm'r v. Philadelphia Transportation Co., Appellant, 359 Pa. 69, 58 A.2d 323.
It is seen that under the Survival Statute the representative recovers in behalf of the deceased.
Plaintiff's decedent was burned to death in a motor truck accident October 21, 1948 on the Pennsylvania Turnpike in Mt. Pleasant Township, Westmoreland County, Pennsylvania. The decedent at the time of the accident was employed by, and driving the tractor trailer of, Interstate Motor Freight, Inc., an Illinois corporation.
Application was made by Betty McKay Griffin and Jerry Wayne Griffin, widow and son of Grady M. Griffin, to the Industrial Commission of Illinois for compensation under the Illinois Workmen's Compensation Act. On August 31, 1951 said commission by Decision of Arbitrator awarded $ 5,785 to be paid to Betty McKay Griffin for her support and for the support of her minor son on account of the injuries resulting in death to Grady M. Griffin.
The Fidelity and Casualty Company of New York, Workmen's Compensation insurance carrier for Interstate Motor Freight, Inc., has paid and will continue to pay the amounts awarded by said Decision of Arbitrator.
On November 15, 1951 the Fidelity and Casualty Company of New York filed a petition to intervene in the action filed by the First National Bank as Administrator of the Estate of Grady Griffin as a party plaintiff. This petition to intervene was filed pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure, 28 U.S.C.A.
I believe, however, in determining the question consideration should also be given to Rule 24(b)(2) of the Federal Rules of Civil Procedure.
The question raised is whether the Workmen's Compensation insurance carrier for the employer of plaintiff's decedent is entitled to recover the compensation paid and payable by reason of the death of the assured's employee, by joining in this action brought by plaintiff against third persons for damages suffered by the decedent, assuming ...