Babcock v. Dose

• Decision Date: 29 February 1956
• Docket Number: No. 40116,40116
• Citation: 179 Kan. 298,293 P.2d 1007
• Parties: Earl R. BABCOCK, Appellant, v. Carl DOSE, d/b/a Carl Dose Motor Sales, Appellee.
• Court: Kansas Supreme Court

Page 1007

293 P.2d 1007

179 Kan. 298

Earl R. BABCOCK, Appellant, v. Carl DOSE, d/b/a Carl Dose Motor Sales, Appellee.

No. 40116.

Supreme Court of Kansas.

Feb. 29, 1956.

Syllabus by the Court.

The record in an action to collect an unpaid award in a workmen's compensation case under the provisions of G.S.1949, 44-512a examined, and held, the trial court erred in sustaining a demurrer to the petition.

Sylvan Bruner and Morris Matuska, Pittsburg, argued the cause and were on the briefs for appellant.

P. E. Nulton, Pittsburg, argued the cause, and R. L. Letton, Pittsburg, was with him on the briefs, for appellee.

PARKER, Justice.

This was an action to collect an unpaid award in a workmen's compensation case under the provisions of G.S.1949, 44-512a. The plaintiff appeals from an order sustaining a demurrer to his petition.

Plaintiff commenced the action in district court on July 7, 1955, by the filing of a petition which outlines the facts and discloses the theory on which he bases his right to relief. Omitting formal averments of no consequence and the prayer such pleading reads:

'1. That plaintiff is a resident of and his post-office address is Weir City, Kansas.

'2. That the defendant, Carl Dose, d/b/a Carl Dose Motor Sales, is a resident of Pittsburg, Crawford County, Kansas and the address of his place of business in Pittsburg, Kansas is 404 North Locust Street; that said Carl Dose owns and operates a garage servicing automobiles and sells new and used automobiles in the operation of his business under the firm name of Carl Dose Motor Sales.

'3. The plaintiff further states that on the 16th day of June, 1955, in case No. 19,322 the District Court of Crawford County, Kansas, Sitting at Pittsburg, entered and granted a judgment for compensation including medical expense in favor of the plaintiff and against the defendant, Carl Dose d/b/a Carl Dose Motor Sales, and his Workmen's Compensation Insurance Carrier, Phoenix Indemnity Company, for accidental injuries that plaintiff had sustained while working for the said defendant, Carl Dose d/b/a Carl Dose Motor Sales, for a period of 415 weeks at the rate of $24.96 per week from and after May 29, 1954, and further ordered in said judgment that the defendant and his said Workmen's Compensation Insurance Carrier pay the claimant the sum of $1,347.84 in weekly compensation then due plus $650.00 to reimburse plaintiff for his medical expense paid by him, and the balance of compensation awarded was ordered to be paid at the rate of $24.96 a week until fully paid; that there have been no further orders made in said proceedings and the said judgment of the District Court of Crawford County, Kansas, is in full force and effect.

'4. Plaintiff further states that on the 21st day of June, 1955, the defendant, Carl Dose d/b/a Carl Dose Motor Sales was by the plaintiff served by registered mail with a written demand for payment of the unpaid installments of said compensation awarded and adjudged to Earl R. Babcock, plaintiff herein, by the District Court of Crawford County, Kansas, then due and accumulated, which demanded payment was not complied with by the defendant and his said Workmen's Compensation Insurance carrier within two weeks after June 21, 1955. A copy of said demand is attached hereto and is made a part hereof and is marked Exhibit 'A'.

'5. Plaintiff further states that the defendant, Carl Dose d/b/a Carl Dose Motor Sales and his said Workmen's Compensation Insurance Carrier, have failed to pay the compensation awarded and adjudged due to plaintiff herein, Earl R. Babcock, and demanded herein by plaintiff, at any time after written demand for payment of the unpaid installments of compensation awarded and adjudged to Earl R. Babcock, plaintiff herein.

'That by reason thereof, there is due in unpaid installments of compensation and medical expense awarded and adjudged to claimant the sum of Eleven Thousand Eight and 40/100 ($11,008.40) Dollars.'

Without other attack defendant demurred to the foregoing petition on grounds (1) that the court had no jurisdiction of the subject matter; (2) that there was another action pending between the same parties for the same cause; and (3) that the petition failed to state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant.

Upon presentation and argument the foregoing demurrer was sustained in its entirety. Plaintiff then perfected this appeal, wherein the only question involved is whether the court erred in sustaining such demurrer.

So far as here pertinent the statute, Laws 1943, Chap. 189, G.S.1949, 44-512a, entitled an act relating to workmen's compensation, which we pause here to note has been held by this court, see Ellis v. Kroger Grocery & Baking Co., 159 Kan. 213, 220, 152 P.2d 860, 155 A.L.R. 546, to be remedial and intended to supplement existing remedies as indicated therein, on which appellant bases his right to relief reads:

'That if any compensation awarded, agreed upon or adjudged under the provisions of the workmen's compensation act of this state or any installment thereof shall not be paid to the employee or other person entitled thereto when due, and service of written demand for payment has been made personally or by registered mail on the person, firm or corporation liable to pay the same, payment of said demand is thereafter either refused or not made within two weeks from the date of service of said demand, then the entire amount of compensation awarded, agreed upon or adjudged shall become immediately due and payable and said employee or other person entitled to said compensation may maintain an action in any court of competent jurisdiction for the collection thereof in like manner as for the collection of a debt. The remedies of execution, attachment, garnishment or any other remedy or procedure for the collection of a debt now provided by the laws of this state shall apply to such action and also to all judgments entered under the provisions of section 44-529 of the General Statutes of 1935: * * *.'

At the outset it should be stated that in order to render the involved petition demurrable on any of the statutory grounds asserted the defect relied on must appear on the face of the petition. This we may add is true because of our code of civil procedure.

Applicable portions of G.S.1949, 60-705, provide:

'The defendant may demur to the petition only when its appears on its face, either: First, that the court has no jurisdiction of the person of the defendant, or the subject of the action. * * * Third, that there is another action pending between the same parties for the same cause. * * * Fifth, that the petition does not state...