Honn v. Elliott
| Decision Date | 07 February 1931 |
| Docket Number | 29,779 |
| Citation | 132 Kan. 454,295 P. 719 |
| Parties | ARTHUR F. HONN, Appellee, v. MRS. ARDEN CRIST ELLIOTT and THE PHOENIX INDEMNITY COMPANY, Appellants |
| Court | Kansas Supreme Court |
Decided January, 1931.
Appeal from Butler district court; GEORGE J. BENSON, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. WORKMEN'S COMPENSATION ACT -- Claim for Compensation -- Sufficiency. Within ninety days after payments of compensation under the workmen's compensation law had been suspended the workman executed and verified a detailed claim for compensation which he sent to the compensation commissioner, who forwarded it to the employer. The employer appeared at the hearing of the claim before the commissioner and acknowledged the receipt of the claim so forwarded. Held that the serving of the written claim for compensation was a compliance with the statute, R. S. Supp. 1930, 44-520a.
2. SAME--Necessity of Offer to Arbitrate. Under our present compensation law (R. S. Supp. 1930, 44-532) an offer to arbitrate by the workman is not a condition precedent to the maintenance of a proceeding before the compensation commissioner for the hearing and allowance of his claim.
3. SAME--Scheduled Injuries--Injury to Both Feet. A workman sustained an injury, compensable under the workman's compensation law, to both of his feet. Held, that the compensation should not be computed as a scheduled injury to each foot, but should be computed under the provisions of the statute providing compensation for the loss or injury of both feet.
4. COURTS--Previous Decision as Controlling on Point Not Argued. A decision of this court construing a statute, when some material applicable portion of the statute is not called to the attention of the court, does not prohibit this court from considering that portion of the statute when a later similar case is presented and that portion of the statute is called to the attention of the court.
J. B. McKay, of El Dorado, and A. B. Mitchell, of Lawrence, for the appellants.
E. W. Grant, of El Dorado, for the appellee.
This is a workmen's compensation case. We shall speak of the workman as plaintiff and the employer and her insurance carrier as defendants. The plaintiff's claim for compensation was allowed by the compensation commissioner, defendants appealed to the district court--where the record was reviewed and plaintiff's claim allowed--and defendants have appealed.
Appellants first contend that plaintiff cannot maintain the proceeding for the reason that he did not serve on defendants a written claim for compensation within ninety days after compensation payments had been suspended, as required by R. S. Supp. 1930, 44-520a. The facts with respect to that, as shown by the record, are: Plaintiff was injured November 12, 1928. Defendants paid physicians and medical service for the claimant, and also paid compensation from November 19, 1928, to September 9, 1929, at the rate of $ 18 per week, when they suspended payment. These payments were regularly made each week. On October 2, 1929, plaintiff executed and verified an instrument headed, "Employee's claim for compensation," giving his name, address, name and address of his employer, the date, place and circumstances of the accident, and that he had received compensation to September 9, 1929, and much other detailed information. This claim was received by the compensation commissioner on October 3, and copy forwarded to defendants. On October 12 plaintiff and defendants entered into a stipulation for the hearing of the claim at El Dorado on a date subsequent to October 24, to be fixed by the commissioner. The hearing was had on November 6, 1929. At the time of that hearing defendants admitted having received the claim for compensation, which was forwarded to them by the compensation commissioner on October 3, 1929. The receipt of this claim and the hearing upon it before the compensation commissioner were within the ninety days provided by statute from the time payment of compensation had been suspended. Appellant's complaint seems to be that plaintiff did not send this claim for compensation directly to them instead of sending it through the compensation commissioner. The statute does not preclude this manner of forwarding a claim, and we regard the contention of appellants on this point as being highly technical. In Murphy v. Cook Construction Co., 130 Kan. 200, 285 P. 604, the workman filed with the compensation commissioner an application for compensation. This was treated as a sufficient claim for compensation under the statute.
Appellants contend that the proceedings cannot be maintained because there is no showing that plaintiff offered to arbitrate. The old statute (R. S. 44-534) provided that no action could be maintained unless the workman shall have consented to an arbitration. The new statute (R. S. Supp. 1930, 44-532) does not contain that provision. While the parties may settle, or may agree to arbitrate, it is no longer a condition precedent to maintaining a proceeding for compensation before the compensation commissioner that the workman has consented to arbitration.
The principal point argued in this appeal is the amount of plaintiff's compensation, or, more accurately, how it should be computed under the statute. The court found that plaintiff was employed by the defendant, Arden Crist Elliott as a rig builder in the oil fields; that both were working under the compensation act, and that plaintiff's earnings for the preceding year were $ 2,800. There is no controversy over these findings. That on November 12, 1928, while engaged in that work, he fell from a rig for a distance of about twenty feet, landing on his feet on some timber, and received an injury to both his feet. The bones of his feet were badly broken and crushed, and the ligaments, muscles and flesh were severely bruised and torn. That claimant will never be able again to engage in rig building, or in...
To continue reading
Request your trial
-
Casco v. Armour Swift-Eckrich
...K.S.A. 44-510c(c); K.S.A. 44-510e. The parallel injury rule referred to by the Court of Appeals originated with Honn v. Elliott, 132 Kan. 454, 295 P. 719 (1931). In Honn , the claimant worked as a rig builder in the oil fields. Honn injured both of his feet when he fell approximately 20 fe......
-
Hall v. Dillon Companies, Inc.
...Kan. 875, 888, 135 P.3d 1230 (2006). In Casco, we expressly overruled the parallel-injury rule originally formulated in Honn v. Elliott, 132 Kan. 454, 295 Pac. 719 (1931). 283 Kan. at 527, 154 P.3d 494. The workers compensation statutes provide for compensation for permanent partial injurie......
-
Gutierrez v. Dold Foods, Inc.
...to a statute that is not readily found in the language of the statute." 283 Kan. at 525, 154 P.3d 494 (overruling Honn v. Elliott, 132 Kan. 454, 295 P. 719 [1931]). Dold Foods' argument certainly seems to violate the principal teaching of Graham and Casco—that you don't add something to a s......
-
Stanley v. United Iron Works Co.
... ... compensation should be computed on the basis of 100 weeks, ... under paragraphs 17 and 19. Honn v. Elliott [ante], ... 132 Kan. 454, 295 P. 719, superseding Orendoc v. Kaw ... Steel Construction Co., 131 Kan. 366, 291 P. 952 ... ...
-
A New Guiding Principle: Kansas Supreme Court's Trend to Review and Reconsider Legal Precedent
...[94] Id. at 510. [95] Id. at 510, 512. [96] Id. at 510-11. [97] Id. at 512. [98] Id. [99] Id. at 512-13. [100] Id. at 513. [101] Id. [102] 132 Kan. 454, 295 Pac. 719 (1931). [103] Casco, 283 Kan. at 527. [104] Honn, 132 Kan. at 456. [105] Casco, 283 Kan. at 522-23. [106] Id. at 524-25. The ......
-
The 2011 Kansas Workers Compensation Act: Too Sharp a Right Turn?
...44-520(a)(3). [54] K.S.A. 44-520(a)(4). [55] Id. [56] K.S.A. 44-520(b). [57] 283 Kan. 508, 154 P.3d 494 (2007). [58] Honn v. Elliott, 132 Kan. 454, 458, 295 P. 719 (1931). [59] Supra note 57, Syl. ¶ 6. [60] K.S.A. 44-510e(2)(A)(i). [61] Id. 44-510e(2)(A)(ii). [62] Id. 44-510e(2)(A)(iii). [6......
-
The 2001 Kansas Workers Compensation Act: Too Sharp a Right Turn?
...44-520(a)(3). [54] K.S.A. 44-520(a)(4). [55] Id. [56] K.S.A. 44-520(b). [57] 283 Kan. 508, 154 P.3d 494 (2007). [58] Honn v. Elliott, 132 Kan. 454, 458, 295 P. 719 (1931). [59] Supra note 57, Syl. ¶ 6. [60] K.S.A. 44-510e(2)(A)(i). [61] Id. 44-510e(2)(A)(ii). [62] Id. 44-510e(2)(A)(iii). [6......
-
Appellate Decisions
...to explicitly rule out every other possible diagnosis except the diagnosis the physician is making. Extended error of Honn v. Elliott, 132 Kan. 454 (1931), and absence of legislative action to reverse that error do not compel revival of Honn as the governing rule for parallel-member injurie......