Hilsinger v. Zimmerman Steel Co.
| Decision Date | 08 April 1922 |
| Docket Number | 34494 |
| Citation | 187 N.W. 493,193 Iowa 708 |
| Parties | J. S. HILSINGER, Appellant, v. ZIMMERMAN STEEL COMPANY, Appellee |
| Court | Iowa Supreme Court |
Appeal from Scott District Court.--F. D. LETTS, Judge.
ACTION by plaintiff, under Code Section 3471, to recover for loss of the earnings of his minor son, resulting from injuries received while the employee of the defendant, and through the negligence of the defendant. Medical expenses also are claimed. One defense pleaded by the defendant was that the defendant, as an employer, was operating under the Workmen's Compensation Act, and that its liability had been adjudicated under such act, and that the defendant had paid all installments adjudicated against it as they matured. By way of reply, the plaintiff admitted that the defendant was operating under the Workmen's Compensation Act, and that all the liability of the defendant to the employee had been adjudicated pursuant to such act, but averred that he as parent of the minor employee, was not bound by the provisions of such Compensation Act, and that he was entitled to recover independently thereof, by virtue of Section 3471. The defendant filed a motion for judgment on the pleadings which was duly sustained, and judgment entered dismissing the petition. Plaintiff has appealed.
Affirmed.
A. G Bush, for appellant.
Bollinger & Block, for appellee.
I.
There is no warrant under our statute for a motion for judgment upon the pleadings, though such practice is not infrequently resorted to, by apparent mutual consent of counsel. The parties themselves have mutually treated the motion as the equivalent of a demurrer to the plaintiff's reply and an election by the plaintiff to stand upon his pleading. We shall, for that reason, so treat it here, without giving sanction to the practice. The practice, if sanctioned, would quite supplant the demurrer. If the practice were sanctioned as a matter of right to the movent, he would, if successful, be entitled to summary judgment, without any right of amendment to the adverse party. However, where the parties mutually agree to present an issue of law in that form, there can be no special objection to it, as an agreement by the parties.
The question presented here is whether the right of a father to recover for the loss of services of a minor child through injury resulting from the negligence of another, as provided by Section 3471, is affected to any degree by the Workmen's Compensation Act.
The pleadings disclose that the defendant was engaged in operating a factory, and that Harry Hilsinger, the minor son of plaintiff, 18 years of age, was regularly employed therein, at $ 40 per week. While so employed, he received the injuries complained of.
The argument for the appellant is that the Workmen's Compensation Act did not, in terms, repeal Section 3471; and that its terms are not so repugnant to Section 3471 that a repeal by implication should be found. To our minds the question involved is not so much whether Section 3471 has been repealed by implication, but whether the field of its application has been circumscribed or reduced by the operation of the Compensation Act. Assuming that the purpose of the Compensation Act was to cover the entire field of liability for industrial injury, Section 3471 could still be operative outside of that field.
In order to get before us the real purport of the Compensation Act, a few quotations therefrom will be necessary. Section 2477-m is:
Section 2477-m16 defines certain terms used in the Compensation Act, including the following:
Also:
Section 2477-m12 is:
"The compensation herein provided shall be the measure of the responsibility which the employer has assumed for injuries or death that may occur to employees in his employment subject to the provisions of this act, and it shall not be in any wise reduced by contribution from employees."
"Where injury causes death to an employee, a minor, whose earnings were received by the parent, the compensation to be paid the parent shall be two thirds of the amount provided for payment in Subdivision (d) Section 10."
It will be seen from the foregoing that the Compensation Act does purport to provide a complete and exclusive remedy for all injured employees and their beneficiaries; and that it does purport to provide a complete and exclusive liability on the part of the employer for such injuries. Section 2477-m2, above quoted, expressly so provides. It makes this remedy "exclusive of all other rights and remedies of such employee, his personal or legal representatives, dependents or next of kin, at common law or otherwise, on account of such injury." This enumeration necessarily includes the father, as the next of kin. If death had resulted to the employee, the statute would become applicable to the father, not only as the next of kin, but as a dependent, as provided by Section 2477-m16, above quoted. That the act is applicable to the parent of a minor is also indicated by Section 2477-m9, above quoted. True, these particular divisions have reference to a case of wrongful death. But if Section 3471 is not affected by the Compensation Act, then the...
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