Hall v. Pennsylvania Greyhound Lines Et

CRUMPACKER, Judge. Prior to November 12, 1946, one Kenneth Wood was an employee of the appellant herein. On said day he died as the result of an accidental injury arising out of and in the course of such employment. He left a widow and infant child who were wholly dependent upon him for support and, upon proper application to the Industrial Board of Indiana, they were awarded compensation agreeable to the provisions of the Workmen's Compensation Act, under which award they have accepted benefits. Alleging these facts and the further charge that Wood's death was due proximately to the carelessness and negligence of the appellee, the appellant filed complaint in his own name to recover from said appellee the amount of his liability to the Wood dependents under said Industrial Board award. The appellee demurred to this complaint on the theory that the cause of action pleaded is for wrongful death and therefore must be prosecuted in the name of the personal representative of the deceased. The demurrer was sustained and, upon the refusal of the appellant to plead further, the court entered judgment that he take nothing by reason of his complaint. This appeal challenges the ruling on the demurrer only and the sole question presented may be stated thus: May an employer, who is liable under an accepted award of the Industrial Board for the payment of compensation to the dependents of a deceased employee, recover from a third party tort feasor in an action brought by the employer in his own name or must such action be brought by the personal representative of the deceased employee under the procedure prescribed by the wrongful death act? Burns' Stat. § 2-404.