Jolley v. The United Power and Light Corporation

• Decision Date: 05 July 1930
• Docket Number: 29,330
• Citation: 289 P. 962,131 Kan. 102
• Parties: FRANK JOLLEY, Appellee, v. THE UNITED POWER AND LIGHT CORPORATION, Appellant
• Court: Kansas Supreme Court

289 P. 962

131 Kan. 102

FRANK JOLLEY, Appellee, v. THE UNITED POWER AND LIGHT CORPORATION, Appellant

No. 29,330

Supreme Court of Kansas

July 5, 1930

Decided July, 1930.

Appeal from Dickinson district court; CASSIUS M. CLARK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WORKMEN'S COMPENSATION Act--Negligence of Third Party--Effect of Employer's Waiver of Right to Sue. The provisions of section 4 of chapter 232 of the Laws of 1927 are intended for the benefit and guidance of the employer and employee, and a third party who has negligently injured an employee has no ground to complain of the fact that subsequent to the ninety-day period specified in the statute the employer waived its right to proceed against the third party and permitted the employee to do so.

2. Gas--Injury from Explosion--Evidence of Negligence. The record examined, and it is held that the evidence of negligence was sufficient to sustain the verdict.

3. SAME--Amount of Verdict. The complaint of appellant that the verdict was excessive examined, and it is held that the amount allowed was not so excessive as to indicate passion and prejudice on the part of the jury.

4. SAME--Generally. Other specifications of error urged by the appellant examined, and it is held there is no reversible error in the record.

Lee Judy, of Kansas City, for the appellant.

Matt Guilfoyle, of Abilene, for the appellee.

OPINION

JOCHEMS, J.:

This was an action for damages in which plaintiff charged negligence on the part of defendant. Plaintiff recovered judgment, and defendant appeals.

The record shows that at the time plaintiff was injured on August 30, 1928, he was in the employ of a corporation known as the United Telephone Company; that he was engaged in working on the telephone lines of that company, and on the date of the injury went to an underground manhole belonging to the company for the purpose of doing certain repair work on the wires at that point. He had a fellow workman with him. When the cover was lifted from the manhole the plaintiff smelled to see if there was any odor or foul air in the hole. He smelled something and knew there was a foul smell of some sort. He and the fellow workman then sat down and waited to permit the air to become fresh in the manhole. He took a canvas and dropped it down into the hole and fanned it back and forth to circulate the air. The manhole was eight by four feet and about six feet deep. There were two conduits running into the hole about four feet from the bottom. Plaintiff testified that after waiting about thirty minutes he went back but didn't smell anything; that he supposed it was safe to go into the hole and did so; that he had been working there some five or ten minutes and did not smell anything nor feel any ill effects. The helper, who was outside the manhole, handed him a blow torch and an explosion followed immediately. The plaintiff was badly burned as a result of the explosion. He was taken to a hospital, where he remained some time.

It appears from the record that both the plaintiff and the United Telephone Company, his employer, were under the workmen's compensation law; that the telephone company paid him, or advanced him, his wages after his injury and until he returned to work on November 30, 1928. The telephone company also paid plaintiff's doctor bill and hospital bill. All of these payments were made out of what a representative of the telephone company called a "benefit fund." The telephone company reported the accident to the workmen's compensation commissioner on the forms prescribed for that purpose. It does not clearly appear that the telephone company and the plaintiff regarded the amounts advanced him as compensation. No proceedings seeking compensation were ever instituted by plaintiff nor was any agreement made between him and his employer except as hereinafter noted. There was introduced in evidence a written agreement dated February 1, 1929, about five months after the injury, which was attached as exhibit A to the reply of plaintiff, and which reads:

"AGREEMENT.

"Pursuant to the oral agreement heretofore made between Frank Jolley and the United Telephone Company, and for the purpose of setting forth that agreement in writing, Frank Jolley hereby states:

"That he waives all right to workmen's compensation against the United Telephone Company by reason of the accident which he received while working at Salina, Kan., on or about August 30, 1928, and hereby releases the United Telephone Company from all liability by reason of said accident.

"In consideration of which the United Telephone Company waives its right of subrogation to any claim for damages which Frank Jolley may have against any other person or corporation by reason of said accident.

FRANK JOLLEY.

THE UNITED TELEPHONE COMPANY.

By FRED COULSON, Secy."

It appears that the above agreement was entered into for the purpose of reducing to writing an oral agreement made just before Christmas of 1928 between the plaintiff and a representative of the telephone company.

The appellant urges upon this appeal that plaintiff is not entitled to maintain this action; that if there is a cause of action against the defendant company it has become vested by operation of law in his employer, the United Telephone Company. Appellant bases this contention upon section 4 of chapter 232 of the Laws of 1927, which reads:

"Remedy against employer or negligent third party.--When the injury or death for which compensation is payable under this act was caused under circumstances creating a legal liability against some person other than the employer to pay damage, the injured workman or his personal representative shall within ninety (90) days of the date of receiving said injury elect whether to take compensation under this act or to pursue his remedy against such other person. Such election must be in writing and must be delivered to the employer in person or by registered mail, and the acceptance of compensation by an injured workman shall be construed as a positive election to accept compensation under this section. Failure on the part of the injured employee or his personal representative to file a written election with the employer within ninety (90) days that he will pursue his remedy against the negligent third party shall operate as an election to accept compensation and as an assignment of any cause of action in tort which the employee or his personal representative may have against any other party for such injury or death, and such employer may enforce in his own name, or the name of the workman, the liability of such other party for their benefit as their interests may appear."

The appellant contends that both the alleged oral agreement made before Christmas and the written agreement dated February 1, 1929, were more than ninety days after the date of plaintiff's injury and that both are therefore ineffectual to permit plaintiff to bring this action for damages; that by virtue of the statute above quoted the cause of action, if any, against the defendant had become vested in the telephone company. Appellant urges that the provision requiring election to be made by the employee in ninety days is mandatory and cannot be waived; that the cause of action having been vested thereby in the employer, plaintiff is not a proper party in interest; that plaintiff had no right to bring this action and that necessarily judgment must be entered herein in favor of the defendant.

The situation which exists where an injury was caused by the acts of a third party is dealt with in the former compensation law under R. S. 44-504. Under the old act the workman could pursue both remedies; that is, he could pursue his action for compensation and also his action against the third party, subject to the condition, however, that he was not entitled to recover both. This provision in the old law was upon the old legal principle that one cannot be made whole more than once.

Construing the former statute, R. S. 44-504, supra, in the case of Moeser v. Shunk, 116 Kan. 247, 226 P. 784, this court said:

"Whether the injured employee or his dependents recover compensation from the employer or damages from a wrongdoing third party is hardly an election of remedies as that term is ordinarily used in the law. The workmen's compensation law fixed the liability of an employer to his employee where both parties are under the law, and this liability is founded upon the contract of employment and the statute. The liability in no sense depends upon tort. It is a liability growing out of contract, the terms of the statute being embodied in the contract. As between the employer and employee the remedy provided by the workmen's compensation law is exclusive. The injured employee or his dependents must recover upon the contract of employment, which includes the provisions of the workmen's compensation act. (Shade v. Cement Co., 92 Kan. 146, 139 P. 1193; McRoberts v. Zinc Co., 93 Kan. 364, 144 P. 247.) The statute does not attempt in any way to determine the rights or liabilities of the employee in respect to a person not his employer. It does not repeal the statute providing for an action for wrongful death (R. s. 60-3203), nor does it take away from an employee his common-law right of action for injury to the person against one not his employer who by negligence has caused the death or injury. When one not the employer causes injury to a workman it...