not be the recipient of compensation. And secondly, there is only one situation wherein the compensation award under the Illinois Statute is payable to the personal representative, and that being: 'In a case where any of the persons who would be entitled to compensation is living at any place outside of the United States.' Section 7(g), S.H.A. ch. 166, Sec. 144(g).
I do not believe it was the intent of the Illinois Legislature to preclude the employer where the injuries resulted in death, while permitting a recovery against third persons for nonfatal injuries suffered by the employee. The correct construction, and the true intent, of the statute is that interpretation set forth by the Supreme Court of Illinois whereby the employer is entitled to indemnification where he is compelled to pay compensation without fault.
It is immaterial to the employer's right to join in this case that the plaintiff brings this action under the Acts of the General Assembly of Pennsylvania, to wit the Act of June 7, 1917, P.L. 447, Sec. 35(b), as amended by the Act of July 2, 1937, P.L. 2755, Sec. 2. This Act, commonly known as the Survival Act, is not peculiar to Pennsylvania. Similar legislation has been enacted in most, if not all, of the states. In Illinois the legislature has provided for Actions which Survive, as part of its Probate Act, Smith-Hurd Ann. St. ch. 3, Sec. 494. The Illinois Survival Action and the Illinois Wrongful Death Action, Smith-Hurd Ann. St. Ch. 70, Sec. 1, are very similar to the Pennsylvania Acts. However, any comparison of the respective legislation would be purely academic and has no bearing on this issue. The rights of the employee which survived to his personal representative, and the rights of his employer arise under the Illinois Workmen's Compensation Act and are entitled to enforcement in this Court. If the rule were otherwise, any injury or death to an employee within the Workmen's Compensation Acts, occurring outside of the state of his employment, would not be redressible by his employer in the state where the accident occurred.
The Illinois Workmen's Compensation Act clearly gives the employer the right to participate in the personal representative's action against third persons. In fact, the Act is so strong in this respect that paragraph 1 of Sec. 29 transfers the entire right of the personal representative to the employer where both the employer and the third party responsible for the tort have elected to be bound by the Act. Again in paragraph 2 of the same section provision is made for payment by the personal representative to the employer out of any judgment or settlement, the amount of compensation paid by the employer. Paragraph 3 gives the employer a lien on any award, judgment or fund out of which such employee might be compensated from such third party, and clearly illustrates the legislature's intention to treat all compensation paid under the Act, whether the employee be living or dead, as compensation to the employee. This is the only logical construction of paragraph 3 that can be made, for the reason that it would be physically impossible for the personal representative to agree to receive compensation or to institute proceedings and as a result of either course of action, cause funds to be paid to the deceased employee personally. And referring again to paragraph 4 of Sec. 29, express provision is made for the employer to join in an action brought by the personal representative.
Since I have concluded that an employer, under the Illinois Workmen's Compensation Act, may join in a plaintiff's action to secure indemnification, it is my judgment that this right is extended to the employer's insurance carrier for Workmen's Compensation insurance.
Workmen's compensation acts very generally provide that the employer or insurance carrier, upon paying the compensation provided under the act, shall be subrogated to the employee's or his personal representative's claim as the case may be. But even in the absence of a specific provision allowing the carrier to be substituted for the employer a similar right exists. This aspect of the instant case is procedural.
Questions which relate to remedy or procedure are governed and referable to the jurisdiction where the action is instituted. Conflict of Laws, 15 C.J.S., Common, page 592; Restatement of the Law, Conflict of Laws, Sec. 588; Earle Gear & Machine Co. v. Fidelity & Casualty Co. of N.Y., 148 Pa. Super. 147, 24 A.2d 652; Moran v. Pittsburgh-Des Moines Steel Co., 3 Cir., 183 F.2d 467; W. W. Clyde & Co. v. Dyess, 10 Cir., 126 F.2d 719.
It is now an almost universal rule that a court may allow persons other than those before the court to come in or be brought in as parties, to the end that substantial justice may be done. 20 R.C.L.page 694.
Intervention is the admission by leave of court of a person not an original party into the proceeding by which such person becomes a party thereto for the protection of some right or interest alleged by him to be affected by the proceeding. In re Willacy County Water Control & Improvement District, D.C., 36 F.Supp. 36; Salem Engineering Co. v. National Supply Co., D.C., 75 F.Supp. 993.
It is evident that the insurance carrier and the plaintiff have a common question of law and fact involved in the action against the third party tort-feasors.
It is my judgment that whether consideration is given to Rule 24(a)(2) or 24(b)(2), in order for the insurance carrier to protect its interests the petition for leave to intervene should be granted.
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