Affirming.
John Spinner and his employer, Purity Bakeries Company, had accepted the provisions of the Workmen's Compensation Act (Ky. Stats., sec. 4880 et seq.), and the Fidelity Casualty Company of New York was the insurance carrier. While engaged in driving a truck for his employer, he collided with an automobile belonging to the Herald Post Company, and was severely *Page 521
injured. While receiving compensation, he employed Hubbard, Gifford Steinfeld, attorneys, to file suit for damages against the Herald Post Company under a contract by which he was to pay them a fee equal to 50 per cent. of the recovery. During the progress of the action, the insurance carrier filed an intervening petition in the name of the employer setting up a claim of $385.15 for compensation, hospital, and medical bills paid to Spinner, and asked that that sum be credited on any judgment obtained. Subsequently an amended intervening petition was filed asserting an additional claim for compensation of $240, making a total of $625.15, which it asked to be credited on any judgment obtained. Though apprised of the pendency of the action against the Herald Post Company, the attorneys for the Purity Bakeries Company and the insurance carrier took no part in its prosecution. The trial resulted in a judgment in favor of Spinner for $2,456, which was affirmed on appeal. Herald Post Company v. Spinner,
In view of the novelty of the question, it has been deemed best to prepare a written opinion.
It is first insisted that Spinner's attorneys are entitled to a fee on the ground of implied contract. In support of this position it is ably argued that Spinner's employer and its insurance carrier knew of the pendency of the suit, and of the employment of attorneys by Spinner, and that the customary fee for such services was an amount equal to 50 per cent. of the recovery; that they took no part in the action, other than to file their own claims; that they rendered no aid whatever to Spinner in the prosecution of the suit, but stood by and permitted Spinner's attorneys to do all the necessary work in obtaining a verdict; and that by so doing they accepted the services of Spinner's attorneys, and *Page 522 should therefore compensate them for the benefit received.
Section 4890, Kentucky Statutes, provides:
"Whenever an injury for which compensation is payable under this act shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may at his option either claim compensation or proceed at law by civil action against such other person to recover damages, or proceed both against the employer for compensation and such other person to recover damages, but he shall not collect from both, and if compensation is awarded under this act either the employer or his insurance carrier, having paid the compensation or having become liable therefor, shall have the right to recover in his or its own name or that of the injured employee from the other person in whom legal liability for damages exists not to exceed the indemnity paid and payable to the injured employee."
Under this statute the injured employee, though he may proceed both against his employer for compensation, and a third person causing his injury, cannot collect from both, but the tort-feasor has the right to have any judgment against him credited by the amount of compensation paid. Moreover, the employer or his insurance carrier, having paid the compensation, or having become liable therefor, has the right to recover in its own name or that of the injured employee from the tort-feasor to the extent of the compensation paid. Book v. City of Henderson,
But the further point is made that the attorneys *Page 524 are entitled to a fee under section 489, Kentucky Statutes, which is as follows:
"In actions for the settlement of estates, or for the recovery of money or property held in joint tenancy, coparcenary, or as tenants in common, if it shall be made to appear that one or more of the legatees, devisees, distributees or parties in interest have prosecuted for the benefit of others interested with themselves, and have been at trouble and expense in conducting the same, it shall be the duty of the court to allow such person or persons reasonable compensation for such trouble, and for necessary expenses, in addition to the fees and costs; said allowance to be paid out of the funds recovered before distribution, the persons interested having notice of the application for such allowance."
The suit for damages against the tort-feasor was not an action for the settlement of an estate, or for the recovery of money or property held in joint tenancy, coparcenary, or as tenants in common. It was a mere suit for damages, in the result of which the injured employee on the one hand, and his employer and its insurance carrier on the other, were in no sense jointly interested. On the contrary, their interest in the recovery was separate and distinct; the interest of the injured employee being limited to the excess of the judgment over the compensation paid, and the interest of his employer and its insurance carrier extending no further than the compensation paid. Obviously the statute does not apply.
There is the further insistence that the employer and its insurance carrier are estopped from questioning the fee. The most that can be said is that they stood by and knew that the attorneys would claim a fee on the whole amount recovered. There is no showing that because of any act, speech, or silence on the part of the employer or the insurance carrier, the attorneys performed any service which they would not have performed, or were not bound to perform, under their contract of employment, or that they were induced to forego any right which otherwise they might have asserted. In the circumstances, it is not inequitable for the employer and its insurance carrier to resist the payment of the fee.
Judgment affirmed. *Page 525