Eagle-Picher Lead Co. v. Kirby

• Decision Date: 31 March 1925
• Docket Number: 15233.
• Citation: 235 P. 176,109 Okla. 96,1925 OK 251
• Parties: EAGLE-PICHER LEAD CO. et al. v. KIRBY.
• Court: Oklahoma Supreme Court

235 P. 176

109 Okla. 96, 1925 OK 251

EAGLE-PICHER LEAD CO. et al. v. KIRBY.

No. 15233.

Supreme Court of Oklahoma

March 31, 1925

Syllabus by the Court.

By the provisions of section 7302, Compiled Oklahoma Statutes 1921 an employee injured under such circumstances as to afford him a right to compensation as against an employer, and also to impose a liability in damages on a third person, has a right to elect to seek compensation or damages, but he cannot at the same time receive and retain the benefits of the Compensation Law and maintain an independent suit in his own name against such third person.

An employee, having elected to accept compensation under the Workmen's Compensation Act, may not while retaining such compensation maintain an action against a third person because of the injury for which he accepted and retained the compensation provided by statute.

Additional Syllabus by Editorial Staff.

An "election of remedies" is choosing between two or more different and coexisting modes of procedure and relief allowed by law on the same state of facts.

Commissioners' Opinion, Division No. 2.

Appeal from Superior Court, Okmulgee County; J. H. Swan, Judge.

Action by H. J. Kirby against the Eagle-Picher Lead Company and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

John F Goshorn, of Kansas City, Mo., W. E. Foster, of Oklahoma City and C.J. Pinkston, of Henryetta, for plaintiffs in error.

Hummer & Foster, of Henryetta, and R. E. Simpson, of Okmulgee, for defendant in error.

LYONS C.

Kirby sued the plaintiffs in error to recover damages in the sum of $25,000 for personal injuries sustained by him while breaking a tee on a gas line. It is alleged that Kirby's injuries were primarily caused by the bursting of the line, which hurled large pieces of iron against his leg below the knee, breaking it in several places, and that the bursting of the line was due to the negligence of the plaintiffs in error in failing to turn off the gas and gas pressure in the line, and in suffering and permitting Kirby to strike the tee while gas was being transported in the line.

At the time of the accident Kirby was an employee of the Nicholson Corporation, and was not an employee of the Eagle-Picher Lead Company. The jury rendered a verdict in favor of the plaintiff, against both of the defendants (plaintiffs in error here), for the sum of $2,000. Judgment was rendered thereon, and to reverse the judgment this appeal is prosecuted.

A number of assignments of error are urged, but in our view of the case it is necessary to discuss only one, that is the contention of the plaintiffs in error that a demurrer to the evidence should have been sustained for the reason that Kirby had accepted benefits given employees under the Workmen's Compensation Law (Laws 1915, c. 246) from his employer Nicholson Corporation, or its insurer, and never offered to return the same until the trial, when he made a conditional tender. The contention otherwise stated is that Kirby had elected his remedy under the Workmen's Compensation Law, and had not at the time of the filing of the suit or the trial thereunder in any case changed his status as to said election.

The defense of election of remedies was pleaded in the answer of the Eagle-Picher Lead Company, and also in the answer of Johnson, plaintiffs in error here, and an estoppel by reason thereof was set up.

Kirby filed a reply to these answers, denying each affirmative allegation alleged therein.

The testimony was that the injury took place on the 29th of June, 1922; that Kirby was in the hospital about 30 days; that he left the hospital July 29, 1922; that he filed his claim with the Industrial Commission of the state of Oklahoma under the Workmen's Compensation Law during that time; that he received checks for compensation about the middle of August, 1922, from the Nicholson Corporation, or its insurance carrier, and received another check 4 weeks later for $57.40; that he never cashed these checks, but kept them 10 or 11 months; and that, according to his testimony, he returned them about a month before the trial to Massey & Company, the insurance carriers.

The suit was filed in the superior court of Okmulgee county January 9, 1923. The claim filed by Kirby is as follows:

"Employee's First Notice of Injury and Claim for Compensation, Filed Aug. 7, 1922.

Full name of injured employee: Harris Jesse Kirby. Address: Box 864, Kusa, Okl. Married or single: Married. Age: 38. Number of children: Three. Name of employer: Nicholson Corp. Address: Kusa, Okl. Date of accident: June 28, 1922, 6

a. m. Where did accident occur? State: Oklahoma; county, Okmulgee, city county. * * * Street: -----. Cause of accident: Gas pipe blew out. Nature and extent of injury: Leg fractured in five places. Two compound fractures. Date quit work on account of injury: At once. Date returned to work: Have not returned to work. Returned to work at what wage? -----. Are you likely to be disabled more than seven days (careful answer must be given)? Yes. Did you suffer loss of a member or loss of use of a member? Yes. If loss of use, is such loss temporary or permanent? Don't know. Have you notified your employer of the accident? Yes. (If not, you should notify him at once.) If not, did your employer or his superintendent or foreman have knowledge of the accident? Yes. What was your average daily wage? $4. Were wages contracted to be paid on daily, weekly, or monthly rate? Semimonthly. Did you request your employer to furnish medical service? Yes. Has he done so? Yes. Name of attending physician: Dr. Ira W. Robertson, Henryetta. Address: Dr. J. H. Parell, Kusa. Signed this 1st day of August 1923, at Kusa, Oklahoma (Injured employee making claim sign full name here. Give address to which mail should be sent.) [Signed] Harris Jesse Kirby, Box 864, Kusa, Okla. This must be filled out by employee and mailed to State Industrial Commission. I do hereby certify that the above and foregoing is a true copy of the original claim now on file in my office. Witness my hand and official seal of said State Industrial Commission, this 16th day of October, 1923. M. C. Erbacher, Secretary State Industrial Commission. [Seal.]"

An award was apparently made on this claim. Thereafter an order vacating the award was made on September 8, 1923. This order is as follows:

"Filed Sept. 8, 1923: Now on this ----- day of September, 1923, this matter comes on for hearing upon the election of remedies of H. J. Kirby, and it appearing that heretofore claim for compensation was filed herein on behalf of H. J. Kirby, and that an award was duly entered thereon, but that said H. J. Kirby has elected to file suit against the Eagle-Picher Lead Company and upon request of the claimant it is ordered that the award heretofore entered be, and the same is hereby vacated, set aside and held for naught, and that this cause be stayed, pending the termination of the suit against Eagle-Picher Lead Company. ----------, Chairman of Commission. I do hereby certify that the above and foregoing is a true copy of the original order now on file in my office. Witness my hand and official seal of said State Industrial Commission this 16th day of October, 1923. M. C. Erbacher, Secretary State Industrial Commission. [Seal.]

Rule 10 of the State Industrial Commission in force and effect at the time of the injury is as follows:

If a workman entitled to compensation be injured by the negligence of another not in the same employ as set out in section 18, article 2, chapter 246 of the Session Laws of 1915, the employee shall elect whether to take compensation under the Workmen's Compensation Act or pursue his remedy at common law against such other in the following manner:

If he elects to take compensation he shall so notify the Commission and shall make assignment of his cause of action against such other person to the insurance carrier and if he elects to pursue his remedy against such other person causing injury, he shall in writing notify the Commission and the insurance carrier. In the event he fails to make such notification, the Commission will make no award against the insurance carrier for a deficiency if he recovers and collects less than what his compensation would have been under the Workmen's Compensation Act."

Further proceedings before the State Industrial Commission are as follows:

"Comes now the claimant and shows to the Commission that he received an injury while in the employ of the Nicholson Corporation on or about the 29th day of June, 1922, and filed his claim herein. Claimant shows to the Commission that he was injured by the negligence of the Eagle-Picher Lead Company, a corporation, and now elects to proceed against the Eagle-Picher Lead Company.

H. J. Kirby, Claimant."

"Now on this 2d day of October, 1923, this cause comes on for consideration of the Commission and, it appearing that the claimant herein while in the employ of the Nicholson Corporation on June 28, 1922, was accidentally injured by the negligence or wrong of another not in the same employ; and it further appearing that the plaintiff herein has elected to proceed against the Eagle-Picher Lead Company. It is ordered That this cause be and the same is hereby stayed pending the termination of the suit against the Eagle-Picher Lead Company, through whose negligence or wrong the claimant alleges he was injured: It is further ordered that the compromise of any such cause of action by the claimant herein shall be made only with the written approval of the Commission, or, in the event a judgment be rendered in such cause, that the amount collected be reported to the Commission by the claimant. * * *

Now on this 10th day of October, 1923, the attention of the

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