Halverhout v. The Southwestern Milling Company

• Decision Date: 11 March 1916
• Docket Number: 19,978
• Citation: 155 P. 916,97 Kan. 484
• Parties: WILLIAM HALVERHOUT, Appellee, v. THE SOUTHWESTERN MILLING COMPANY, Appellant
• Court: Kansas Supreme Court

155 P. 916

97 Kan. 484

WILLIAM HALVERHOUT, Appellee, v. THE SOUTHWESTERN MILLING COMPANY, Appellant

No. 19,978

Supreme Court of Kansas

March 11, 1916

Decided January, 1913.

Appeal from Wyandotte district court, division No. 3; HUGH J. SMITH judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WORKMEN'S COMPENSATION ACT--Claim for Compensation before Commencing Action Rendered Unnecessary. Plaintiff was injured in defendant's mill, and a doctor attended him before he was removed therefrom. A few days thereafter he called up the mill and told the timekeeper he wanted a settlement and wanted a doctor sent out, and was referred to the defendant's main office. On calling there he was referred to the defendant's attorneys and in a day or two a doctor was sent out. A little later he went with counsel to see the defendant's attorneys about a settlement, which was discussed, but none was made. Shortly thereafter the action was brought which resulted in a lump-sum judgment. The answer admitted an injury and liability for compensation beginning at the end of the second week of the disability, and averred readiness to pay compensation and that the plaintiff had been notified thereof and refused to accept. Held, that the claim required by section 6 of chapter 216 of the Laws of 1913 to be made within three months after the accident was rendered unnecessary.

2. SAME--Judgment in Lump Sum. Rule followed that a lump-sum judgment was properly rendered.

3. SAME--Attempt to Settle by Agreement or Arbitration. Rule followed that an attempt and failure by the plaintiff to settle by agreement or arbitration is not a condition precedent to maintaining an action.

T. F. Railsback, of Kansas City, W. S. Hogsett, and Murat Boyle, both of Kansas City, Mo., for the appellant.

J. O. Emerson, and David J. Smith, both of Kansas City, for the appellee.

OPINION

WEST, J.:

The defendant appeals from a lump-sum judgment under the workmen's compensation act.

Plaintiff was injured on June 12, 1914, while at work for the defendant in its mill. He testified that a doctor attended him before he was removed from the mill, that six or seven days after the injury he called up the mill and stated to the timekeeper that he wanted a settlement for his foot and wanted a doctor sent out, and was referred by the timekeeper to the company's main office. On calling up the main office he was referred to a firm of attorneys, and in a day or two he called on these attorneys and then a doctor came. On or about July 15 he employed counsel and went with them to the office of the defendant's attorneys for the purpose of obtaining a settlement, and they there talked of the injury. Discussion was had as to the method of settlement, either by a certain sum by the week or by a lump sum, and some dissatisfaction with the workmen's compensation act was expressed by one of the plaintiff's attorneys. Shortly afterwards the action was begun, resulting in a judgment for plaintiff in the sum of $ 1027.87. The answer, after certain admissions, including the injury of the plaintiff, but denying the extent of such injuries or the consequent incapacity to be as great as alleged, averred that the plaintiff was entitled to compensation beginning at the end of the second week of disability, but that he did not notify the defendant of his accident or make any claim for compensation, but that the defendant on or about the 21st of July and prior to the filing of the suit notified the plaintiff that the defendant was ready and willing to pay such compensation then due and to continue the same as provided for by the statute during the time he should be disabled, which offer was by the plaintiff refused; that the defendant had at all times been ready and willing to pay under the terms and provisions of the act, and that the plaintiff was not entitled to maintain the action until he had made some effort to settle with the defendant.

The failure to give a written notice within ten days after the injuries was expressly waived when the case was reached for trial.

A motion was made to dismiss on the opening statement of plaintiff's attorney because no claim for compensation had been made and no effort to agree with the defendant upon the amount of compensation. The question was raised in the ways already mentioned, and also by demurrer to plaintiff's evidence and by request for a peremptory instruction. In view of the knowledge which the...