Carlson v. American Fidelity Co.
| Decision Date | 20 May 1921 |
| Docket Number | No. 22,213.,22,213. |
| Citation | 149 Minn. 114 |
| Parties | CARL CARLSON v. AMERICAN FIDELTY COMPANY.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
After the former appeal reported in 133 Minn. 439, 158 N. W. 700, the case was tried before Comstock, J., who denied defendant's motion for dismissal of the action and granted plaintiff's motion for a directed verdict in his favor for $1,197. From an order denying its motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Affirmed.
Ernest E. Watson, for appellant.
Ivan Bowen and Leroy Bowen, for respondent.
In proceedings under the Workmen's Compensation Act in the district court for Blue Earth county, plaintiff, on January 14, 1916, recovered a judgment against the Casualty Company of America, the insurer of his employer. This court entered an order granting a writ of certiorari to review the judgment, and upon such review the judgment, on July 7, 1916, was affirmed. State v. District Court of Blue Earth County, 133 Minn. 439, 158 N. W. 700. The order directed the casualty company to execute a bond in the sum of $4,000, with an approved surety, the bond to be "in the form of a supersedeas bond upon an appeal from a judgment." In compliance therewith, an undertaking was executed by the defendant in this action, running to the plaintiff, and conditioned as follows:
"If the judgment of the District Court of Blue Earth County so to be reviewed as aforesaid, or any part thereof is affirmed, that the Casualty Company of America, the defendant in said action, will pay the amount directed to be paid by the said judgment, or the part thereof which is affirmed, if it is affirmed only in part, and all damages awarded against the defendant upon the appeal, provided, however, that its liability hereunder shall not exceed the sum of four thousand ($4,000.00) dollars."
The judgment of the district court awarded plaintiff compensation for 400 weeks at the rate of $9 a week, payable weekly from and after June 2, 1915. Such compensation was paid by the casualty company for a period of 99 weeks, or from June 2, 1915, to April 25, 1917. On May 4, 1917, the casualty company became insolvent. On September 21, 1917, an execution was issued to enforce the judgment, and on the following day it was returned wholly unsatisfied. Thereafter plaintiff sued on the undertaking to recover the unpaid portion of the judgment. The defense was that payment of the compensation awarded had been made up to and after the time when this court affirmed the judgment; that defendant was not liable for the payment of compensation thereafter; and that, when the casualty company became insolvent, plaintiff's remedy was an action against his employer. In short, defendant took the position that the benefit of the judgment was not lost to plaintiff by reason of the stay which followed the issuance of the writ, but was lost by reason of the insolvency of the casualty company, which did not occur until nearly a year after the stay was vacated by the affirmance of the judgment and the remand of the case to the district court. A jury was impaneled, and, the facts above related being admitted, defendant moved for a dismissal of the action and plaintiff countered with a motion for a directed verdict in his favor. The court granted plaintiff's motion and directed the jury to return a verdict for $1,197 as compensation for 133 weeks at $9 a week. Defendant thereafter moved in the alternative for judgment notwithstanding the verdict or for a new trial, and appeals from an order denying both motions.
The statute relating to certiorari contains a section reading: "Each writ of certiorari * * * shall be endorsed by some responsible person as surety for costs." Section 8315, G. S. 1913. When there is an appeal from a money judgment, the statute directs that the appeal shall not stay execution, unless a bond is executed conditioned that if the judgment is affirmed the appellant will pay the amount directed to be paid by the judgment and all damages awarded against appellant on the appeal. Section 8004, G. S. 1913. On its face, the undertaking gave plaintiff the same security as he would have had if he had recovered an ordinary money judgment and defendant had appealed and obtained a stay of execution. It was a supersedeas bond in form, and hence, if given effect according to its terms, it obligated defendant to pay the judgment and not merely the costs and damages. Erickson v. Elder, 34 Minn. 370, 25 N. W. 804; Stiles v. American Surety Co. of New York, 143 Minn. 21, 172 N. W. 776. Conceding that it gave plaintiff more than the statute required, the fact remains that defendant saw fit to execute it voluntarily. The event has...
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