Moeser v. Shunk

• Decision Date: 07 June 1924
• Docket Number: 25,052
• Citation: 226 P. 784,116 Kan. 247
• Parties: EDNA MOESER, Appellant, v. BERTHA SHUNK, Appellee
• Court: Kansas Supreme Court

226 P. 784

116 Kan. 247

EDNA MOESER, Appellant, v. BERTHA SHUNK, Appellee

No. 25,052

Supreme Court of Kansas

June 7, 1924

Decided January, 1924

Appeal from Reno district court; WILLIAM G. FAIRCHILD, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WORKMEN'S COMPENSATION ACT--Liability of Employer to Employee Arises on Contract. The liability of an employer to his employee under the workmen's compensation act is a liability arising on contract.

2. SAME--Injuries from Negligence of Third Party--Equitable Adjustment Between Employer and Employee--Does Not Affect Liability of Third Party. Section 5 of the workmen's compensation act (R. S. 44-504) provides for an equitable adjustment between the employer and his employee when both are governed by the provisions of the act and the injury to the employee is caused by the negligence of a third party. It is not intended for the benefit of such third party, nor to relieve him from liability.

3. SAME--Injuries Caused by Third Party--Actions May Be Had at the Same Time Against Employer and Third Party. When an employee and his employer are within the provisions of the workmen's compensation act and the employee is injured by the negligence of a third person, the employee, or his dependents, if the injury result in death, may proceed to recover compensation from the employer and at the same time may maintain an action for damages against the third party whose negligence caused the injury.

4. SAME--Receipt of Compensation from Employer No Defense to Action for Damages. In such a situation the fact that the employee has proceeded to obtain compensation from his employer, by settlement or otherwise, is no defense to the action for damages, nor can that fact be shown by the defendant upon the trial of such action.

C. M Williams, D. C. Martindell, both of Hutchinson, O. C. Mosman, Clay C. Rogers, Paul A. Buzard, and Don E. Black, all of Kansas City, Mo., for the appellant.

A. C. Malloy, R. C. Davis, and Warren H. White, all of Hutchinson, for the appellee.

OPINION

HARVEY, J.:

This is an action for damages by the widow and sole dependent for the death of her husband, alleged to have been caused by the negligence of defendant. The court overruled plaintiff's demurrer to the fifth paragraph of defendant's answer and plaintiff has appealed.

The circumstances giving rise to the controversy are as follows: Frank Moeser was in the employ of William D. Hamilton, doing business as the William D. Hamilton Sign Company, and operating under the workmen's compensation act. Moeser, while riding in a truck of his employer's, was injured in a collision between the truck and an automobile driven by defendant, and died from such injury. Plaintiff made a written contract with Hamilton which recited that the death of her husband resulted from injuries received in an accident while he was in the employ of Hamilton, which accident was the result of an automobile collision between a car in which Moeser was riding and one driven by defendant, under circumstances which indicated the collision was caused by the negligence of defendant, for which defendant would be legally liable in damages to plaintiff. That plaintiff desired to prosecute her claim for damages against defendant, and in order that plaintiff might prosecute such suit it was agreed that Hamilton would advance to plaintiff the sum of $ 60 per month until such time as plaintiff shall have collected her judgment against the defendant, or it be determined that defendant is not liable.

It was further agreed that should plaintiff succeed in realizing any money in the suit against defendant she would reimburse Hamilton for whatever amount he had advanced, and in the event she did not realize anything on account of such suit she might proceed against Hamilton to collect compensation as provided in the workmen's compensation law, and in that event Hamilton would not make any claim that the death of Frank Moeser did not arise out of or in the course of his employment or that the claim is not within the terms of the compensation law; and if Hamilton became liable to pay compensation under the agreement, whatever amount he had previously advanced to plaintiff should be applied on the compensation found to be due, and provided that in no circumstances should Hamilton be liable or called to advance to plaintiff more than $ 3,800; and it was further understood and agreed that the plaintiff did not intend by the contract to accept compensation as provided under the compensation law. Hamilton was insured and the insurance company consented to the terms of the agreement between plaintiff and Hamilton and has been making the payments thereon of $ 60 per month, and at the time of trial had paid $ 1,680 to plaintiff.

In this case the defendant, in the fifth paragraph of her answer, set out this contract in full and averred that Frank Moeser was entitled to compensation from Hamilton under the compensation law; that the agreement between plaintiff and Hamilton was in effect a settlement of her claim against Hamilton for compensation and a recognition and payment of it by Hamilton, and amounted to an election on the part of plaintiff to accept compensation under the workmen's compensation law; that the agreement was made for the purpose of cutting off defenses the defendant in this action would have, and that by reason of this settlement and the acceptance of the money plaintiff was barred from maintaining this action. Plaintiff's demurrer to this portion of the answer was overruled, and she has appealed, contending that the ruling was error.

This calls for an interpretation of section 5 of the workmen's compensation law, which reads as follows:

"Where the injury 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 damages in respect thereof: (a) The workman may take proceedings against that person to recover damages and against any person liable to pay compensation under this act for such compensation, but shall not be entitled to recover both damages and compensation; and (b) if the workman has recovered compensation under this act, the person by whom the compensation was paid, or any person who has been called on to indemnify him under the section of this act relating to subcontracting, shall be entitled to indemnity from the person so liable to pay damages as aforesaid, and shall be subrogated to the rights of the workman to recover damages therefor." (R. S. 44-504.)

This section has been before this court in two cases-- Swader v. Flour Mills Co., 103 Kan. 378; id. 703, 176 P. 143; and Stamps v. Railroad Co., 113 Kan. 644, 218 P. 1115; 114 Kan. 477, 218 P. 1116. In the Swader case plaintiff brought action for the wrongful death of her husband, who was an employee of the defendant company, and the other defendant, Hoffman, was the company's manager. The defendant company pleaded that its liability was fixed by the workmen's compensation act; that pursuant thereto an arbitration had been had, and that it had been found liable to plaintiff and her children in a specific sum, payable in weekly payments, which payments had been made to the clerk of the court. The defendant Hoffman answered to the same effect. He denied the charge of negligence against him individually and alleged that plaintiff had refused to agree to an arbitration, but that it had been duly made and adjudicated. Plaintiff replied that she was not bound by the provisions of the workmen's compensation law so long as she had not accepted the benefits of the court's adjudication against the milling company, and that the proceedings had thereunder did not constitute a bar to her action against the defendant Hoffman. A demurrer to this reply was sustained and plaintiff appealed. In reversing the case this court said:

"The compensation act provides that where the circumstances show a legal liability against a third person, as well as against the employer, the injured workman (and in case of fatal injury, the person acting in behalf of his dependents) may take proceedings against his employer for compensation and against the wrongdoing third party to recover damages, but he shall not be entitled to recover both damages and compensation . . . . The statute thus gives a sort of dual cause of action--for compensation and for damages--but qualifies and limits the recovery to the one or the other. . . . There is nothing in the statute which says or infers that she need choose between the damages and the compensation until she knows definitely which is the more to her advantage." (pp. 380, 381.)

On the rehearing, the court was asked to interpret the word "recover" as used in the statute, and said:

"The word 'recover' means to 'get,' 'procure,' 'obtain,' and the like, and the provision concerns itself with actual payment of money as damages or compensation and is not limited to the recovery of judgments upon which nothing may be realized." (p. 703.)

In the Stamps case plaintiff was in the employ of the street-railway company and was injured while operating his car across the track of the Missouri Pacific railroad, and, as he claimed because of the negligence of the railroad company. His employer, the streetcar company, paid him compensation for a period of six months and then desisted. He then filed a petition praying compensation and requesting arbitration, to which his employer consented, and there the proceedings rested. While the payments were being made he brought an action against the railroad company for damages for its negligence, and it was contended that the action could not be maintained for the reason that the plaintiff had received compensation in part...