Appeal, No. 201, Jan. T., 1956, from order of Court of Common Pleas No. 7 of Philadelphia County, Sept. T., 1955, No. 716, in case of George Raines and Maggie Raines v. Pennsylvania Threshermen & Farmers' Mutual Casualty Insurance Company. Order affirmed. Trespass. Defendant's preliminary objections sustained and order entered dismissing complaint, opinion by SLOANE, J. Plaintiff appealed.
Norman Shigon, for appellants.
James B. Doak, with him LaBrum & Doak, for appellee.
Before Trern, CJ., Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE JONES
The husband-plaintiff, while at work as an employee of Atlantic Fish Market, Inc., tripped and fell, suffering
thereby a physical injury consisting of a sprained ankle and leg. The leg became infected and gangrenous - a condition that finally necessitated amputation whereby the employee was totally incapacitated for his work. Before instituting the present action, the employee filed a claim for compensation with the Workmen's Compensation Board for the injuries above stated, which proceeding is still pending.
The husband-plaintiff, joined by his wife, instituted the instant action in trespass against his employer's compensation insurance carrier, claiming damages on the allegation that the loss of the leg and other aggravations of the original injury were the result of the insurance carrier's failure to furnish him with competent and adequate medical care which the insurance company's representative had allegedly promised.
The defendant filed preliminary objections on the grounds, principally, that the plaintiffs' complaint failed to state a cause cognizable in a common law action, that the husband's remedy was exclusively under the Workmen's Compensation Law and that the wifeplaintiff had no right of recovery for consortium under the law of Pennsylvania. The learned court below sustained the preliminary objections as to the husband's claim and, as to the wife's, held that it was derivative and fell with the husband's. The court therewith dismissed the complaint as to both plaintiffs in an order from which the husband-plaintiff alone has appealed.
The action of the court below was proper. Conceding, arguendo, the appellant's point that, although Section 401 of the Workmen's Compensation Act defines an employer as, inter alia, the employer's insurer, the latter's identity is not so merged with the employer's as to relieve the ...