McRoberts v. The National Zinc Company

• Decision Date: 14 November 1914
• Docket Number: 19,324
• Citation: 93 Kan. 364,144 P. 247
• Parties: E. F. McROBERTS, Appellee, v. THE NATIONAL ZINC COMPANY, Appellant
• Court: Kansas Supreme Court

144 P. 247

93 Kan. 364

E. F. McROBERTS, Appellee, v. THE NATIONAL ZINC COMPANY, Appellant

No. 19,324

Supreme Court of Kansas

November 14, 1914

Decided July, 1914.

Appeal from Wyandotte district court, division No. 3; HUGH J. SMITH judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. WORKMEN'S COMPENSATION ACT -- Employer and Employee Within Its Provisions -- Remedy is Exclusive. Shade v. Cement Co., 92 Kan. 146, 139 P. 1193, holding that the remedy afforded by the workmen's compensation law (Laws 1911, ch. 218, as amended by Laws 1913, ch. 216) in cases where the employer and employee have elected to come within its provisions is exclusive, followed.

2. SAME--Action Can Not be Joined with Common-law Action for Damages. An injured employee brought an action asking in the first count for compensation for his injury under the workmen's compensation law and in the second count for damages for pain and suffering and for disfigurement of his hand proceeding from the same injury and which resulted from the negligence of the defendant. The court overruled a demurrer to each count of the petition and refused to require the plaintiff to elect on which count he would rely, and directed the parties to proceed to trial on the count for damages, reserving the count for compensation for future consideration. The jury were instructed to consider the case as one based upon a common-law liability for a negligent injury, and a verdict was rendered awarding damages for pain and suffering and disfigurement. Held, that while there was some evidence tending to show partial disability and some testimony as to the recent earnings of the plaintiff, the verdict rendered can not be treated as an award of compensation nor can a judgment be entered in this court for any sum as compensation.

Adrian F. Sherman, Thad B. Landon, and W. V. Thompson, all of Kansas City, Mo., for the appellant.

W. W. McCanless, of Kansas City, for the appellee.

Robert Stone, and George T. McDermott, both of Topeka, as amici curiae.

OPINION

JOHNSTON, C. J.

This was an action by E. F. McRoberts, a former employee of the National Zinc Company, to recover from that company for injuries suffered by him in an accident that occurred in the zinc plant which he alleged was the result of a defective appliance. His petition, which contained two counts, set forth, first, the circumstances under which he was injured the extent of his injuries, the permanence in character of the injuries, the wages which he had been receiving, and then asked for compensation under the workmen's compensation law. (Laws 1911, ch. 218, as amended by Laws 1913, ch. 216.) In the second count he sought a recovery for the same injury as a common-law liability, basing his right to recover upon pain and suffering, which he alleged was the result of the company's negligence and which he must suffer during his life, and also for permanent disfigurement of his hand. He asked judgment for $ 2500 on the first count as compensation for loss of labor and wages for the period of eight years, and judgment under the common-law count for $ 2500 as damages for physical and mental pain and the permanent disfigurement of his hand. The company answered by a general denial, and averred that McRoberts' injuries were the result of his own negligence and the result of the usual risks and hazards of the employment which he had assumed. Before going to trial the company objected to the introduction of any evidence because of inconsistencies of the two counts of the petition, one being for compensation under the compensation law and the other a common-law liability for the same injury, and insisted that the plaintiff should be compelled to elect under which count he would proceed. An objection was also made to the impanelling of a jury because McRoberts had failed to file, previous to trial, a written notice that a trial by jury would be demanded, as the compensation law provided and there was a further objection that the petition contained no averment that the parties came within the operation of the workmen's compensation law. The court overruled the objections and required the parties to proceed to try the case upon the second count of the petition only before a jury, stating that the matter of proceeding under the first count of the petition would be taken under advisement for future action. Demurrers to each count of the petition were filed and these were overruled. At the conclusion of the evidence the case was submitted as if it were a common-law liability, and the jury were instructed that if they found the company to have been negligent and that McRoberts was free from contributory negligence they might award him damages for pain and suffering already sustained, and also for loss of time and wages as...