Cary v. Burris

• Decision Date: 30 June 1942
• Citation: 169 Or. 24,127 P.2d 126
• Parties: CARY <I>v.</I> BURRIS
• Court: Oregon Supreme Court

169 Or. 24

127 P.2d 126

CARY

v. BURRIS

Supreme Court of Oregon.

Argued June 2, 1942.

Affirmed June 30, 1942.

Workmen's compensation — Federal act

1. Under federal compensation act if amount of recovery from third person by federal compensation commission exceeds payments made and to be made to federal employee, he is entitled to the excess.

Workmen's compensation — Federal act

2. The federal compensation act by providing that injured employee, from moneys received from third party as result of suit brought by him must reimburse the United States for compensation previously received, impliedly sanctions the bringing of such action by injured employee, and recovery by employee bars an action by the United States.

Workmen's compensation — Automobiles — Damages

3. Where it did not appear that federal employee injured in automobile collision was required to or had assigned to the United States his cause of action against motorist, and without such assignment United States could not bring action against motorist, payment by the United States to employee for medical and hospital expenses constituted a mere "gratuity" and hence employee could recover such expenses as special damages from motorist.

Damages — Reduction

4. Damages cannot be reduced by amount which plaintiff may have received from third parties acting independently of defendant, though it is given to plaintiff on account of injury.

Appeal and error — Damages — Special damages

5. Where trial court erroneously withdrew from jury the allowance for special damages sustained in automobile collision and jury awarded general damages, supreme court would not decide case upon the record and merely add to general damages the amount claimed as special damages, but would remand case for new trial as directed by trial court.

                  See 28 R.C.L. 738
                  71 C.J., Workmen's Compensation, § 1658
                

Before KELLY, Chief Justice, and BAILEY, LUSK, RAND, ROSSMAN and BRAND, Associate Justices.

Appeal from Circuit Court, Multnomah County.

WALTER TOOZE, Judge pro tempore.

Action by Elmer B. Cary against Paul Burris to recover for injuries sustained in a collision of automobiles. From an order setting aside a judgment for plaintiff, and granting a new trial, defendant appeals.

AFFIRMED.

Ralph R. Bailey, of Portland (Maguire, Shields, Morrison & Biggs and Arthur C. Spencer, Jr., all of Portland, on the brief), for appellant.

Chester E. McCarty, of Portland (Glen McCarty, of Portland, on the brief), for respondent.

RAND, J.

The plaintiff, while an employee of the federal government, sustained serious bodily injuries as the result of a collision between an automobile in which he was riding as a guest and another automobile driven by the defendant. Plaintiff brought this action for damages, alleging that, as a result of said collision, he had sustained general damages in the sum of $60,000 and special damages in the sum of $2,164.17 for medical, surgical and hospital treatment and nurse hire.

As a partial defense and in mitigation of plaintiff's claim for special damages, the defendant alleged that, at the time and place of the accident, the plaintiff was an employee of the United States and was entitled to the benefits of the United States government compensation act which included the payment by the government of medical and hospital services and for nurse hire and, on information and belief, alleged that all of said expenses had been so paid.

The reply admitted plaintiff's said employment and that the United States Employees' Compensation Commission had advanced all of said sums but that he would be required to reimburse the commission for said advances out of the proceeds of the judgment when collected.

The trial court charged the jury that plaintiff was not entitled to recover any of said items of special damages and withdrew the same from the consideration of the jury. The jury returned a verdict for $3,500 and judgment was given for that amount. The plaintiff then moved to set aside the judgment and for a new trial because of said instruction. This motion was sustained because of said alleged error and an order was entered setting aside the judgment and granting a new trial. From this order, the defendant has appealed.

The United States compensation act of September 7, 1916, (5 U.S.C.A., § 759), in part provides:

"Immediately after an injury sustained by an employee while in the performance of his duty, whether or not disability has arisen, and for a reasonable time thereafter, the United States shall furnish to such employee reasonable medical, surgical, and hospital services and supplies unless he refuses to accept them. Such services and supplies shall be furnished by United States medical officers and hospitals, but where this is not practicable shall be furnished by private physicians and hospitals designated or approved by the commission and paid for from the employees' compensation fund. * *...