Austin v. Phillips Petroleum Co.
| Decision Date | 07 October 1933 |
| Docket Number | 31270. |
| Parties | AUSTIN v. PHILLIPS PETROLEUM CO. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Employee after compensation award held not entitled to recover for employer's breach of alleged parol agreement to pay compensation as long as employee's disability continued since award could be modified by parties only by written agreement (Rev. St. Supp. 1931, 44--526).
A workman sustained an injury compensable under the Workmen's Compensation Law. His employer voluntarily paid compensation for a time and then ceased paying. The workman filed his claim for compensation, which was heard by the commissioner and an award of compensation made, which included future payments. These were made by the employer. Thereafter the workman filed an action against his employer for damages for the breach of an alleged parol agreement by which he agreed to forbear further proceedings before the compensation commissioner, in consideration of which the employer agreed to pay him compensation as long as his disability continued. Held, the petition did not present a cause of action, and a judgment for plaintiff thereon cannot stand. Further held, that an award of compensation made by the commissioner which has become final can be modified by the parties only by an agreement in writing.
Appeal from District Court, Cowley County; O. P. Fuller, Judge.
Action by Bert Austin against the Phillips Petroleum Company. Judgment for plaintiff, and defendant appeals.
Judgment reversed, with directions.
C. W Roberts, of Winfield, and R. H. Hudson and R. B. F. Hummer both of Bartlesville, Okl., for appellant.
W. L Cunningham, D. Arthur Walker, Fred G. Leach, and Wm. E. Cunningham, all of Arkansas City, for appellee.
This is an action for damages for the breach of an alleged parol agreement. There was a jury trial, verdict and judgment for plaintiff for $2,100, and defendant has appealed.
The record discloses that on August 13, 1928, while plaintiff was employed by defendant and both operating under the Workmen's Compensation Act, plaintiff received an injury by an accident arising out of and in the course of his employment, in which a heavy trip spear fell and struck plaintiff on his right leg between the knee and ankle, fracturing a bone and injuring the muscles, tendons, nerves, tissues, and flesh. The injury was one to the "foot," as that term is defined by our Workmen's Compensation Act, R. S. 1931 Supp. 44--510 (3) (c) (13), (16) and (19). Defendant recognized its liability under the Workmen's Compensation Act and began paying compensation at the rate of $18 per week, the maximum provided by statute, (19), supra, and continued such payments until July 5, 1929, at which time it ceased making payments in order that there might be a hearing to determine its further liability. Soon thereafter plaintiff filed his claim for compensation with the compensation commissioner. There was a hearing in September, 1929, at which time the compensation commissioner found plaintiff had sustained an injury to the foot compensable under the Workmen's Compensation Act, and allowed compensation for 24 weeks in addition to what had been paid, the amount then accrued to be paid in a lump sum and the remainder at $18 per week. Neither party appealed from this award. The defendant made the payments as directed in the award and with its check for the last payment sent a final receipt to be signed by the workman. He accepted the check for the payment but declined to sign the receipt, and thereafter brought this action April 23, 1931. The total paid plaintiff by defendant was $2,182.25 plus hospital and doctor bills; the maximum which could have been allowed by the compensation commissioner for the loss of the foot was $2,250.
In the petition there were allegations outlining the matters above stated, and it was alleged that before final payment of the award defendant orally...
To continue reading
Request your trial
-
Yocum v. Phillips Petroleum Co.
...signing was induced by fraud, plaintiff could not maintain a common-law action for damages in fraud. Accord, Austin v. Phillips Petroleum Co., 138 Kan. 258, 25 P.2d 581 (1933) ("the award of the compensation commissioner, if not appealed from, is an adjudication of the rights and liabilitie......
-
Employers' Liability Assur. Corp. v. Matlock
... ... 455, 7 ... P.2d 84; Willis v. Skelly Oil Co., 135 Kan. 543, 11 ... P.2d 980; Austin v. Phillips Petroleum Co., 138 Kan ... 258, 25 P.2d 581; Ketchell v. Wilson & Co., 140 Kan ... ...
-
S. H. Kress & Co. v. Superior Court of Maricopa County, 4978
... ... 455, 7 ... P.2d 84; Willis v. Skelly Oil Co., 135 Kan. 543, 11 ... P.2d 980; Austin v. Phillips Petroleum Co., 138 Kan ... 258, 25 P.2d 581; Ketchell v. Wilson & Co., 140 Kan. 163, ... ...
-
Zimmerman v. O'Neill Tank Co.
...v. Hercules Powder Co., 164 Kan. 328, 333, 188 P.2d 639; Dobson v. Apex Coal Co., 150 Kan. 80, 83, 91 P.2d 5; Austin v. Phillips Petroleum Co., 138 Kan. 258, 260, 25 P.2d 581; Paul v. Skelly Oil Co., 134 Kan. 636, 640, 7 P.2d 73; Lenon v. Standard Oil Co., 134 Kan. 289, 5 P.2d The judgment ......