Lampkin v. Kent Piling Co.

Kent Piling Company, Inc., defendant-appellant, has applied for a rehearing, contending that there are numerous errors in our opinion. We have carefully considered its assignment of errors and have again studied the transcript of testimony, as well as our opinion. We are convinced that our opinion is correct under the established jurisprudence of this State except insofar as it condemns Kent Piling Company, Inc. to pay all costs of court.

As noted in our former opinion, Consolidated Underwriters was made a defendant in a supplemental and amended petition which was filed by the plaintiff. However, judgment was not rendered against it although both defendants admitted that Consolidated Underwriters was the workmen's compensation insurer of Kent Piling Company, Inc. at the time of Frank Lempkin's death. No appeal from the judgment was taken by the plaintiff, nor did the plaintiff answer the appeal. Hence, we agree with counsel for the defendants that we were in error in condemning Kent Piling Company, Inc. to pay all costs of the suit. It is our opinion that that company should pay all costs of suit except those incurred in making Consolidated Underwriters a party defendant, such as the costs in connection with the filing of the supplemental and amended petition and the service of same upon Consolidated Underwriters, which should be paid by the plaintiff, and our opinion is amended accordingly.

Defendant-appellant's application for a rehearing is refused.