Hinson v. . Davis , 220 N.C. 380 ( 1941 )

ScheNCK, J.

It should be noted in tbe outset tbat tbe action is not instituted in behalf of or in tbe interest of tbe plaintiff’s employer, Akers Motor Lines, Inc., nor will it in any wise profit thereby. Tbe action is instituted in tbe name of Hinson, tbe employee, by tbe insurance carrier, tbe United States Casualty Company, wbicb has paid compensation to tbe injured employee for which the employer was liable, as is authorized by sec. 11, ch. 120, Public Laws 1929; sec. 1, ch. 449, Public Laws 1933 (N. 0. Code of 1939 [Michie], sec. 8081 [r]). The right to so institute the action having accrued to the insurance carrier when it paid the compensation to the employee for which the employer was liable, the employer could not by any act to which the carrier was not a party, disturb or interfere with such right.

The defendant is in no wise affected by the North Carolina Workmen’s Compensation Act, ch. 120, Public Laws 1929, and acts amendatory thereof (N. C. Code of 1939 [Michie], secs. 8081 [h], et seq.) He is an outsider and a third party, and is given no rights and is relieved of no liability thereby.

The statute does, however, give certain rights to the employer, the insurance carrier and the employee. Among these being that “when'any employer is insured against liability for compensation with any insurance carrier, and such insurance carrier shall have paid any compensation for which the employer is liable or shall have assumed the liability of the employer therefor, it shall be subrogated to all rights and duties of the employer, and may enforce any such rights in the name of the injured employee or his personal representative. . . .”

It is admitted that the United States Casualty Company has accepted the liability of the Akers Motor Lines, Inc., employer of the plaintiff, and is paying plaintiff compensation under an award of the North Carolina Industrial Commission. The casualty company is therefore subrogated to all the rights existing in favor of the employer against defendant, a third party and stranger to the Compensation Act, including the right to “commence an action in his own name and/or in the name of the injured employee or personal representative for damages on account of such injury or death.” This subrogated right in the insurance carrier could not by any act of the employer be altered or changed. Any modification or waiver of rights under subrogation to be effectual must be made by the subrogee and not by the subrogor. The subrogor loses the rights, the subrogee gains them, and when gained by the latter they are beyond the power of the former to modify or waive.

“Accord is a satisfaction agreed upon between the party injuring and the party injured, which, when performed, is a bar to all actions upon the same account.” 3rd Blackstone 15, 1 Amer. Jur., Accord and Satisfaction, par. 1. In the case at bar the party alleged to be the party injuring is the same as the party alleged to be the party injuring in the accord set up in the assailed answer, but the alleged party injured in the former and the alleged party injured in the latter is entirely different. Any “accord, settlement and satisfaction” between the employer, Akers Motor Lines, Inc., and the defendant, was an act to which the plaintiff was an entire stranger and affected no rights to which the United States Casualty Company, by virtue of the statute, had been subrogated, and could not be properly pleaded as a defense to an action by the plaintiff in behalf of himself or of the casualty company against the defendant. Therefore the order striking out the further answer setting up such a plea was proper.

Affirmed.