McGuire v. United States Fidelity & Guaranty Co.

• Decision Date: 05 March 1932
• Docket Number: 30321,30509.
• Citation: 8 P.2d 389,134 Kan. 779
• Parties: McGUIRE v. UNITED STATES FIDELITY & GUARANTY CO. [*]
• Court: Kansas Supreme Court

8 P.2d 389

134 Kan. 779

McGUIRE v. UNITED STATES FIDELITY & GUARANTY CO. ^[*]

Nos. 30321, 30509.

Supreme Court of Kansas

March 5, 1932

Syllabus by the Court.

Where employment and injury are within Compensation Act, employee cannot sue insurance carrier in court until he has exhausted remedies in act (Rev. St. 1923, 44--501 et seq., as amended).

Where the employment and injury are within and controlled by the Workmen's Compensation Act, the employee cannot maintain an action in the courts against the insurance carrier until he has exhausted the remedies provided in the act.

Appeal from District Court, Sedgwick County, Division No. 2; Thornton W. Sargent, Judge.

Action by B. I. McGuire against the United States Fidelity &amp Guaranty Company. From a judgment for plaintiff, defendant appeals.

Reversed with directions.

Robert C. Foulston, George Siefkin, Sidney L. Foulston, Lester L Morris, George B. Powers, Carl T. Smith, and C. H. Morris all of Wichita, for appellant.

J. Graham Campbell, W. M. Glenn, and Clifford E. Branch, all of Wichita, for appellee.

SLOAN J.

This action was brought by an employee against the insurance carrier to recover compensation under the Workmen's Compensation Law. The plaintiff recovered, and the defendant appeals.

It was alleged in the petition, and found by the court, that the appellant was the insurance carrier; the Mosbacher Motor Company, the employer; and, the appellee, the employee, all subject to and operating under the terms and provisions of the Workmen's Compensation Act; that the appellant issued to the employer its standard workmen's compensation and employer's liability policy, which had attached thereto and made a part thereof the Kansas compensation endorsement which fully complied with the Workmen's Compensation Act, and had the approval of the commissioner of insurance; that said policy was in full force and effect on October 11, 1929, on which date the appellee sustained a traumatic hernia by accident arising out of and in the course of his employment.

The principal question is whether an employee may maintain a suit direct in the district court against the insurance carrier when the relationship of the parties and the injury complained of brings them within the provisions of the Workmen's Compensation Act.

The act grew out of the recognition that the common-law remedies for injured workmen were inadequate, unscientific, and unjust. McRoberts v. Zinc Co., 93 Kan. 364, 144 P. 247. It was passed for the benefit of the employee, the employer, and the public. Cramer v. Railways Co., 112 Kan. 298, 211 P. 118. The act affords remedies for the parties complete within itself, and provides its own procedure. Palmer v. Fincke, 122 Kan. 825, 253 P. 583; Frary v. Roxana Pet. Corp., 132 Kan. 854, 297 P. 668.

The appellee cites as authority, in support of the decision of the trial court, Robertson v. Board of Com'rs of Labette County, 122 Kan. 486, 252 P. 196; Iott v. Continental Casualty Co., 129 Kan. 650, 284 P. 823; Scott v. Devine, 129 Kan. 808, 284 P. 594; Samson v. United States Fidelity & Guaranty Co., 131 Kan. 59, 289 P. 427. It will be noted in these cases that the employment was not within the provisions of the Workmen's Compensation Act, and consequently its remedies were inapplicable. The act was considered in these cases as part of the contract existing between the parties. In this case the employment and the injury complained of are within the terms of the act. The remedy is applicable and the procedure adequate.

The statute requires the employer to carry insurance for the benefit of the workman, unless, by showing made, the commissioner permits him to carry his own insurance (Rev. St Supp. 1931, 44--532), or provides an approved substitute scheme of compensation (Rev. St. Supp. 1931, 44--537). The insurer is subrogated to the rights and duties of the employer under ...