Lebak v. Nelson

• Decision Date: 24 October 1940
• Docket Number: 6760
• Citation: 107 P.2d 1054,62 Idaho 96
• Parties: HELEN CAROLINE LEBAK, CLARA MAY LEBAK and OSMOND LEBAK, Jr., the Minor Children of OSMOND LEBAK, Deceased, by L. R. LOOMIS, Their Guardian Ad Litem and Guardian of Their Estates; DEPARTMENT OF FINANCE OF THE STATE OF IDAHO, for and on Behalf of the State Insurance Fund of the State of Idaho, Respondents, v. OLOF NELSON, OLOF NELSON CONSTRUCTION COMPANY, a Corporation, and JAMES R. HODGEN, Appellants
• Court: Idaho Supreme Court

107 P.2d 1054

62 Idaho 96

HELEN CAROLINE LEBAK, CLARA MAY LEBAK and OSMOND LEBAK, Jr., the Minor Children of OSMOND LEBAK, Deceased, by L. R. LOOMIS, Their Guardian Ad Litem and Guardian of Their Estates; DEPARTMENT OF FINANCE OF THE STATE OF IDAHO, for and on Behalf of the State Insurance Fund of the State of Idaho, Respondents, v. OLOF NELSON, OLOF NELSON CONSTRUCTION COMPANY, a Corporation, and JAMES R. HODGEN, Appellants

No. 6760

Supreme Court of Idaho

October 24, 1940

Rehearing denied December 12, 1940.

WRONGFUL DEATH-MEASURE OF DAMAGES-WORKMEN'S COMPENSATION-STATUTORY CONSTRUCTION-ACTION AGAINST THIRD PARTIES-LIABILITY OF THIRD PARTIES-EVIDENCE-AWARD-SUBROGATION OF EMPLOYER AND INSURER-JURY-CHALLENGES-WITNESSES, CREDIBILITY OF-ADVERSE PARTY.

1. Under statute providing that, where there are several parties on either side, they must join in a challenge before it can be made and that each party is entitled to four peremptory challenges, where action was against several defendants, the defendants were required to join in the four peremptory challenges. (I. C. A., sec. 7-202.)

2. Where defendants alleged error in denial of permission to cross-examine codefendant as an adverse party but did not oppose motion to dismiss appeal as to such codefendant whether denial was error was a "moot question," since codefendant was no longer a party and could not be called as an adverse party if judgment were reversed and a new trial granted. (I. C. A., sec. 16-1206.)

3. Where witness admitted on cross-examination that he had been convicted of forgery, redirect examination to show the circumstances under which witness was convicted was properly denied, since inquiry into collateral matter which had been judicially disposed of would not be permitted. (I. C. A sec. 16-201.)

4. The provision of the Workmen's Compensation Act reciting its purpose, and the provision permitting an injured employee at his option to claim compensation or to proceed against third person, and subrogating any employer who has paid compensation to the rights of employee, are in "pari materia," and must be considered and construed together. (I. C. A., secs. 43-902, 43-1004.)

5. The acceptance of workmen's compensation for death of employee did not preclude children from maintaining action for damages against third party whose negligence allegedly caused the death. (I. C. A., secs. 43-902, 43-1004.)

6. Where minor children of deceased employee were awarded workmen's compensation by the Industrial Accident Board the Department of Finance had a substantial interest, as subrogee, in subject of action by guardian of the minors against third party whose negligence allegedly caused the death, and was properly joined as a party plaintiff. (I. C A., sec. 5-312.)

7. In action for death of highway employee who was struck by truck which swerved from behind another truck and collided with road grader which was proceeding in the same direction on left side of highway, where jury was instructed that, if trucker was confronted with a sudden emergency, he had duty to act with same care and prudence as an ordinary prudent man under similar circumstances, instruction that existence of a sudden emergency in and of itself would excuse trucker was properly refused.

8. $23,535 recovered by guardian of three minor children for death of father who was 36 1/2 years old, who had a life expectancy of 31.7 years, who was able-bodied and industrious, and who at time of death was earning 55 cents an hour, was not excessive. (I. C. A., sec. 5-311.)

9. In action for death of highway employee who was struck by truck, admission of certified copy of policy of insurance, summary of award by Industrial Accident Board, and compensation agreement signed by guardian of employee's children and employer, awarding compensation to the three children was prejudicial.

10. Where recovery by dependents against third person for death of an employee is for a greater sum than has been paid out as workmen's compensation by employer and insurance carrier, the court should direct payment to employer and insurance carrier of amount paid out by them to the dependents, and, when the parties cannot agree upon the amount thus paid out, an application should be made supported by a certified copy of the policy of insurance, the summary of the award by the Industrial Accident Board, and compensation agreement. (I. C. A., secs. 43-902, 43-1004.)

11. The Workmen's Compensation Act is a remedial and special law providing compensation for injured employees without reference to negligence on part of either employer or employee. (I. C. A., secs. 43-902, 43-1004.)

12. In action against third party for injury to, or death of, an employee, the jury is not concerned with whether an award has been made under the Workmen's Compensation Act, and, where an award is alleged by employer or insurance carrier as basis for alleged right of subrogation, the matter of subrogation should be determined by the court before entering upon trial to the jury. (I. C. A., secs. 43-902, 43-1004.)

13. In action against third party for injuries to or death of an employee, where an award has been made under the Workmen's Compensation Act, and employer and insurance carrier appear as plaintiffs, the court may instruct that the employer and insurance carrier appear as and are proper parties plaintiff because of fact that they have been subrogated to the rights of the employee or his beneficiaries, because of their liability to pay benefits under the act, and that the jury will have nothing to do with question of what amount such plaintiffs may be liable for under the act, and that liability under the act is not dependent on negligence as in the action against third party. (I. C. A., secs. 43-902, 43-1004.)

APPEAL from the District Court of the Second Judicial District, for Clearwater County. Hon. A. L. Morgan, Judge.

Action by L. R. Loomis, guardian of the minor children of Osmond Lebak, to recover damages for the wrongful death of Osmond Lebak, joined by the Department of Finance of the State of Idaho on behalf of the State Insurance Fund of the State of Idaho. Judgment for plaintiffs. Reversed and the cause remanded with directions to grant a new trial.

Judgment reversed, and a new trial granted. Costs awarded to appellants.

Butler & Madden and H. J. Hull, for Appellants.

The Lebak children and their guardian, having accepted compensation under the Workmen's Compensation Act assigned their entire cause of action to the Department of Finance and were improperly joined in the action, and improperly assumed the prosecution of this action. (Sections 43-1003 and 43-1004, I. C. A.; Workmen's Compensation Exchange v. Chicago M. & St. P. R. Co., 45 F.2d 885; Tandsetter v. Oscarson, 56 N.D. 392, 217 N.W. 660; Mayor & Council of Hagerstown v. Schreiner, 135 Md. 650, 109 A. 464; The Nako Maru, 101 F.2d 716.)

The court erred in confining appellants to the exercise of two peremptory challenges to individual jurors. (16 R. C. L., p. 252; 35 C. J. 410.)

The admission in evidence of certified copies of the policy of insurance, the summary of award by the Industrial Accident Board and the agreement was prejudicial to appellants.

The interest of defendant Pippinger was adverse to that of appellants, and they should have been permitted to cross-examine him under the statute as an adverse party. (Sec. 16-1206, I. C. A.; Huber v. Thomas, 45 Wyo. 440, 19 P.2d 1042; Fidelity & Deposit Co. of Maryland v. Ware, 47 Ariz. 12, 53 P.2d 415; Evans v. Bannock County, 59 Idaho 442, 83 P.2d 427.)

In the event of a new trial, the party calling Pippinger as a witness will not be permitted to ask leading questions, nor impeach or rebut his evidence, which is the purpose of the statute permitting cross-examination of an adverse party. ( Evans v. Bannock County, supra; Repanich v. Columbia & Northern F. & P. Co., 135 Wash. 429, 237 P. 1012.)

The question involved has not become moot or academic simply because the parties cannot be given full relief, if the court has power to grant some substantial relief. (Section 1-205, I. C. A.; 5 C. J. S., sec. 1939 (appeal and error); Rogers v. Rogers, 42 Idaho 158, 243 P. 655.)

Durham & Hyatt and Edward T. Johnson, for Respondent Loomis.

Carroll F. Zapp and Clarence L. Hillman, for Respondent Department of Finance of the State of Idaho.

The Lebak children, as heirs of the deceased were properly joined as plaintiffs in this action although they were receiving workmen's compensation insurance.

The Workmen's Compensation Act applies only to rights, remedies and actions between employees and their employers. (Section 43-902, I. C. A.; Athens Ry. & Elec. Co. v. Kinney, 160 Ga. 1, 127 S.E. 290.)

The right of the insurer to be subrogated is for the insurer's benefit and with the extent only of the sums paid by it. The employee or his heirs still have their interest in the cause of action against a third party tort-feasor. (Section 43-1004, I. C. A.; Schnick v. Morris, (Tex. Civ. App.) 24 S.W.2d 491; Chesapeake & Ohio Ry. Co. v. Palmer, 149 Va. 560, 140 S.E. 831; Thomas v. Otis Elevator Co., 103 Neb. 401, 172 N.W. 53; Moeser v. Shunk, 116 Kan. 247, 226 P. 784; State v. Hughes Oil Co., 58 N.D. 581, 226 N.W. 586; Jolley v. United Power & Light Corp. , 131 Kan. 102, 289 P. 962; Reynolds v. Grain Belt Mills Co., 229 Mo.App. 380, 78 S.W.2d 124.)

Where there are several defendants, they are entitled to only four peremptory challenges and the defendants must join in a challenge. (Section 7-202, I. C. A.; United States v. Alexander, 2 Idaho 386, 17 P. 746, 748; State v. Mitchell, 36 Idaho 724, 727, 214 P. 217; Colfax Nat. Bank v. Davis Implement Co., 50 Wash. 92, 96 P. 823, 16 Ann. Cas. 264; Muller v. Hale, 138 Cal. 163 71 P. 81.)

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