Bronder v. Otis Elevator Company
| Decision Date | 17 July 1931 |
| Docket Number | 27776 |
| Citation | 237 N.W. 671,121 Neb. 581 |
| Parties | DOROTHY C. BRONDER, EXECUTRIX, APPELLANT, v. OTIS ELEVATOR COMPANY ET AL.: H. A. WOLF COMPANY, APPELLANT: DELMAR DEAN BRONDER, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
The provisions of the Workmen's Compensation Law, granting to employer the right to reimbursement for compensation paid to a dependent of employee, if a third person responds in damages for negligence resulting in the employee's death are parts of the contract of employment and bind alike the employee and the latter's personal representative.
Under the Workmen's Compensation Law, reimbursement for the full amount of compensation properly paid by employer to employee's dependent, with the employer's expenses for making recovery of damages to that extent from a third person whose negligence caused the death of the employee, is the measure of the employer's statutory right to subrogation.
An independent statute, complete in itself and covering the entire subject to which it relates, may modify earlier statutes without referring to them.
Appeal from District Court, Douglas County; Leslie, Judge.
Action by Dorothy C. Bronder, executrix of the estate of Frank A. Bronder, deceased, against the Otis Elevator Company, the H. A. Wolf Company, and another, in which action Delmar Dean Bronder, by Lizzie Randall, his guardian, intervened. From the judgment, plaintiff and defendant H. A. Wolf Company appeal.
Reversed and remanded.
Hall, Cline & Williams, Henry J. Beal and Byron W. Hunter, for appellants.
Smith, Schall & Sheehan and Crofoot, Fraser, Connolly & Stryker, contra.
Chambers & Holland, amici curiae.
OPINION
This is an action under Lord Campbell's Act to recover damages for negligence resulting in the death of Frank A. Bronder May 13, 1929. Comp. St. 1929, secs. 30-809, 30-810.
Decedent left surviving him as his only heirs at law his widow, Dorothy C. Bronder, age 30, and Delmar Dean Bronder, age 14, a son by a former wife. Frank A. Bronder was an employee of H. A. Wolf Company, and plaintiff alleged that, while he was performing duties of his employment, he was fatally injured in an elevator shaft in the Paxton Building, Omaha, through negligence of Abel Hamilton who was at the time an employee of Otis Elevator Company. Under the workmen's compensation law the H. A. Wolf Company, a corporation in control of the Paxton Building, but innocent of wrongdoing in connection with its employee's death, paid employer's liability, but declined to sue the wrongdoers, Otis Elevator Company and Abel Hamilton, for negligence. To recover damages therefor in the alleged sum of $ 40,000, Dorothy C. Bronder, executrix of the estate of her deceased husband, brought this action at law, naming Otis Elevator Company, Abel Hamilton, and H. A. Wolf Company, defendants. In addition to the demand for damages, plaintiff prayed for an order directing payment, out of any judgment recovered by her, of the amount due H. A. Wolf Company for payments made by it under the workmen's compensation law.
The Otis Elevator Company and Hamilton denied the negligence charged by plaintiff. H. A. Wolf Company admitted generally the allegations of plaintiff's petition, pleaded payment of workmen's compensation, and prayed for reimbursement therefor, by right of subrogation, out of any judgment rendered in favor of plaintiff.
Upon a trial to the district court, a jury having been waived, judgment was rendered in favor of plaintiff for $ 7,500 against the Otis Elevator Company and Hamilton. The Otis Elevator Company complied with a judicial order to pay the amount of the judgment and costs to the clerk of the district court to await distribution and consequently was discharged from further liability.
Delmar Dean Bronder, by Lizzie Randall, his guardian, intervened and demanded distribution to plaintiff and himself in the same proportions as personal property of an intestate is distributed under the inheritance laws, or one-fourth to plaintiff and three-fourths to intervener. Comp. St. 1929, sec. 30-810.
From the fund of $ 7,500 for distribution, the district court directed the clerk to pay the attorneys for plaintiff and H. A. Wolf Company $ 2,500, fees in that sum having been approved by the county court with the consent of all parties to the action. In distributing the remainder, or $ 5,000, the district court found that H. A. Wolf Company was subrogated to the rights of decedent's widow to the extent of one-fourth of $ 5,000, or $ 1,250, on account of payments to her under the workmen's compensation law, and that the minor son of decedent was entitled to three-fourths of $ 5,000 under the provisions of Lord Campbell's Act, or $ 3,750. From a judgment ordering distribution according to these findings, plaintiff and H. A. Wolf Company appealed.
The employer, H. A. Wolf Company, contends that it is entitled to reimbursement by right of subrogation for the full amount of compensation paid to the dependent widow under the workmen's compensation law, before any part of the fund recovered from the wrongdoer under Lord Campbell's Act is distributable to heirs of the deceased employee, and that the judgment of the district court to the contrary is erroneous. The following are stipulated facts:
"H. A. Wolf Company has paid in compensation and funeral benefits under said employers' liability law the total sum of $ 4,791.99 and has likewise expended the sum of $ 323.20 in expenses in the making of the recovery of said judgment of $ 7,500 in the above-entitled action, making a total of $ 5,115.19 thus expended by said H. A. Wolf Company."
The compensation commissioner rendered judgment in favor of the widow, as the only dependent of the deceased employee against his employer, H. A. Wolf Company, for the compensation authorized by law. Afterward the district court approved a lump-sum settlement for compensation which the employer paid. The record does not...
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