Fuller v. Wright

• Decision Date: 10 April 1920
• Docket Number: 22,724
• Citation: 189 P. 142,106 Kan. 676
• Parties: JOHN FULLER, Appellant, v. JOHN K. WRIGHT and JUSTICE E. WRIGHT, partners, etc., and the ASSOCIATED EMPLOYERS RECIPROCAL, Appellees
• Court: Kansas Supreme Court

189 P. 142

106 Kan. 676

JOHN FULLER, Appellant, v. JOHN K. WRIGHT and JUSTICE E. WRIGHT, partners, etc., and the ASSOCIATED EMPLOYERS RECIPROCAL, Appellees

No. 22,724

Supreme Court of Kansas

April 10, 1920

Decided January, 1920.

Appeal from Geary district court; ROSWELL L. KING, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

MASTER AND SERVANT--Injuries--Election of Remedies--Stipulation to Settle under Workmen's Compensation Act Valid. Where a workman was injured in the service of his employers under such circumstances as to give him reasonable grounds for a cause of action for damages at common law against his employers, or to base a claim against them under the workmen's compensation act if their business was conducted under that act, and his employers in good faith believed that they were conducting their business under the provisions of that act, and had purchased and paid for indemnity insurance pursuant to that belief, although they had not formally filed their election with the secretary of state until after the workman had been injured, it was not against public policy for the workman and his employers to agree that he should waive his right to sue for damages at common law, and to claim compensation under the act in lieu thereof; and the mutual agreement of the workman and his employers that the terms of the compensation act should be used as the basis for determining the respective rights and liabilities of the parties, and to measure the compensation if any, for the plaintiff's injuries, was a valid, contractual engagement which the court should enforce according to its terms.

James V. Humphrey, and Arthur S. Humphrey, both of Junction City, for the appellant.

L. B. Morris, of Junction City, and Thad B. Landon, of Kansas City, Mo., for the appellees.

OPINION

DAWSON, J.:

The plaintiff was injured while in the service of the defendants, Wright Brothers, and they agreed with him that their liability therefor, if any, should be ascertained and determined on the basis prescribed by the workmen's compensation act, and not under the common law.

To that end, the plaintiff filed an action against the defendants, alleging that they were engaged in the business of collecting garbage, under contract with the Federal government, on the Fort Riley and Funston Military Reservation, and that plaintiff was employed by them in that work, and while so employed--

"While standing on an autotruck of the last aforesaid defendants for the purpose of loading the same with garbage, refuse and ashes (the place being on said military reservation), the said truck was by the driver thereof suddenly and without warning to plaintiff started up with a violent jerk, causing plaintiff to be violently thrown to the ground, dislocating, bruising and breaking the bones of his right hip, and resulting in a total permanent disability to plaintiff, said total permanent disability commencing immediately with said injury and disabling him from earning any wages at any time since."

The petition then recited that upon the happening of plaintiff's injury, Wright Brothers informed the plaintiff that their business was conducted under the provisions of the workmen's compensation act, and that they held a policy of insurance issued by the defendant, the Associated Employers Reciprocal, for which they had paid $ 150, and which covered claims against them by employees injured in their service, and that they and the defendant insurance company would compensate the plaintiff. At the same time they paid plaintiff the sum of $ 28 under the liability imposed by the compensation act. The petition further alleged that after many such promises of defendants, and delays without payment, an attorney for the plaintiff asked to see the defendants' insurance policy; and this attorney, having examined it, expressed a doubt as to whether the defendants' business came under the scope of the compensation act without an express election of the defendants to place their business under its provisions, and the attorney for plaintiff informed defendants of plaintiff's intention to begin a common-law action for damages. As an inducement to plaintiff to refrain from commencing such common-law action, the defendants agreed to file their election with the secretary of state to come under the compensation act, and that their election should be considered as of a date prior to plaintiff's injuries, and that plaintiff could proceed against them under the act. Accordingly this offer was agreed to by the plaintiff; and the defendants, Wright Brothers, filed their election to come under the act, which election recited--

"The undersigned, J. K. Wright and J. E. Wright, as partners under the name of Wright Brothers, herewith declare that they elect to accept under the Workman's Compensation Act, . . . and they herewith declare that this acceptance relates back to September 9, 1918, on which date they had established relations with their employees of said business and with a liability insurance association on the basis of said business being under said. Act."

The petition also alleged that the defendant, Associated Employers Reciprocal, at the time of writing the insurance policy for Wright Brothers, represented to them and induced them to believe that their business was under the compensation act; and at that time the insurance company obligated the Wright Brothers to permit it to control the settlement of claims for injuries to employees and to grant to it the exclusive right to settle or negotiate for a settlement; and that the insurance company, in this case, agreed to investigate plaintiff's accident and injury and to pay any claim for loss, and that it assumed control of all proceedings ensuing therefrom, and thereby substituted itself for its codefendants in all the duties arising from said accident and injury.

The petition continues:

"Sixth . . . Further plaintiff says that the said Wright Bros. on the occurrence of said accident gave immediate written notice thereof to their said codefendant, and thereupon the said Associated Employers Reciprocal informed said Wright Brothers that it would take charge of and adjust said case, and thereafter it proceeded to negotiate with plaintiff for a settlement, and requested him to submit in writing his claim under the Workmen's Compensation Law, which plaintiff did.

"Seventh. Plaintiff further says that he has wholly failed to agree with said defendants or either of them for a settlement of his claim for compensation; that on the 3rd day of July 1919, plaintiff notified, in writing, each of said defendants that he consented to an arbitration of his said claim and requested each of said defendants to consent to such arbitration, but that said defendants and each of them refused such arbitration; that the said defendants, Wright Bros., refused such arbitration only because they were directed and ordered so to do by their codefendant; that the said Associated Employers Reciprocal insist that their...