Monson v. Arcand

• Decision Date: 22 May 1953
• Docket Number: No. 35885,35885
• Citation: 239 Minn. 336,58 N.W.2d 753
• Parties: MONSON v. ARCAND.
• Court: Minnesota Supreme Court

Page 753

58 N.W.2d 753

239 Minn. 336

MONSON v. ARCAND.

No. 35885.

Supreme Court of Minnesota.

May 22, 1953.

Syllabus by the Court.

1. For purposes of determining whether a partner, in his individual capacity, is liable as an employer only for workmen's compensation or liable as a third party for damages in a negligence action, the partnership of which he is a member is a separate employing entity and an employee of the partnership is not the employee of the individual partner.

2. Provisions of M.S.A. § 176.06, subd. 1, limiting the liability for damages of certain third parties to the amount and manner of payment provided by the workmen's compensation act, contemplate that such third party be an employer and that employees of the employer liable for compensation and employees of such third party be working together in the performance of the same project in a manner which exposes them to the same or similar hazards on the premises where the injury occurs and at the time thereof. Where, as here, the negligent third party has neither shown nor asserted that he, as an individual separate and apart from the partnership of which he is a member, employed anyone, the case does not present a situation intended to be covered by § 176.06, subd. 1, and the amount of recovery against him is measured by the common-law standard of damages.

3. In a personal injury action tried by a jury the question of excessive damages cannot be raised on appeal where it was not presented to the trial court as a ground for new trial. However, sufficiency of evidence to support jury's special finding as to percentage of disability will be reviewed since it was assigned as a ground for new trial and it must inevitably have entered into jury's calculation of damages.

4. Evidence considered and Held sufficient to support jury's finding that plaintiff sustained 25 percent permanent partial disability as result of injury to his back.

Richards, Janes, Hoke, Montgomery & Cobb, & Charles A. Bassford and Elliott O. Boe, Minneapolis, for appellant.

Earl R. Anderson, St. Paul, for respondent.

CHRISTIANSON, Justice.

Defendant appeals from an order denying his alternative motion for judgment notwithstanding the verdict or for a new trial in a personal injury action.

Defendant, Hector Arcand, and his brother, Clement Arcand, were partners engaged in masonry and cement contracting under the name 'Arcand Brothers.' They employed about 15 blocklayers, cement finishers, carpenters, and laborers, including plaintiff, Wendell A. Monson, who was employed as a construction laborer. The Central Surety and Insurance Corporation issued a standard workmen's compensation policy covering these employees which designated the employer as 'Hector W. Arcand and Clement J. Arcand * * * Co-Partnership.'

On May 11, 1951, plaintiff was helping defendant pour concrete on a partnership job in Hopkins. After they quit work, plaintiff rode toward St. Paul with defendant in a pickup truck used in partnership business. Their destination was 1600 County Road E in St. Paul, where partnership property was kept and where plaintiff had left his car that morning. They were proceeding east on U.S. highway No. 100 with defendant at the wheel when several cars some distance ahead suddenly stopped on the highway. Defendant turned to the right to avoid the stopped cars and went off the pavement onto the shoulder and into the ditch. The pickup truck rolled over and plaintiff suffered an injury to his back.

Two juries tried different issues in this case. The first returned a special verdict finding that it was a regular practice for the partnership to pay employees for traveltime to jobs as far away as Hopkins and to furnish transportation to its employees under the circumstances and that plaintiff was paid for traveltime on the day in question and knowingly accepted such pay. Neither party on this appeal challenges these findings or the conclusion which follows from them that plaintiff's injury arose out of and in the course of his employment. Defendant's motion for conclusions of law and an order for judgment in his favor on the grounds that the plaintiff's only remedy was under the provisions of the workmen's compensation act and that he had no cause of action for damages against the defendant was denied by the trial court.

The trial was resumed before the second jury to determine the defendant's liability for negligence. The trial court reserved for its own determination the question whether defendant was an employer of plaintiff under the workmen's compensation act, M.S.A. § 176.01, subd. 5, and thus liable only for compensation or whether defendant was a third party and thus liable for damages in an action for negligence. The court also reserved for its own determination the further question whether, if defendant were a third party liable for damages, those damages were limited under § 176.06, subd. 1, to the amount and the manner of payment provided by the workmen's compensation act.

At the close of the evidence defendant moved for a directed verdict on the evidence, the first jury's special verdict, and the grounds set forth in defendant's requested instructions, which were to the effect that defendant was a properly insured employer of plaintiff and that plaintiff's exclusive remedy was under the workmen's compensation act. The trial court refused defendant's requested instructions, reserving the issues raised by them for its own determination as questions of law, and denied defendant's motion for a directed verdict. The second jury returned a general verdict for $20,500 in favor of plaintiff and found, in response to special interrogatories, that plaintiff was totally disabled until November 11, 1951; that he sustained 25 percent permanent partial disability; and that he incurred medical, surgical, and hospital expenses in the amount of $347.30. The trial court determined that defendant was not an employer of plaintiff and that defendant was not insured under the workmen's compensation act.

1. The first issue presented by this case is whether defendant was an employer of plaintiff and thus, other qualifications being met, liable to plaintiff only for workmen's compensation. This question has been answered in the negative in Gleason v. Sing, 210 Minn. 253, 297 N.W. 720, where this court held under similar circumstances that a member of a partnership is not, in his individual capacity, an employer of an employee of the partnership. Only the partnership is the employer, the partnership being for this purpose an entity distinct from its members. No claim is made in the instant case that plaintiff was employed by defendant separate and apart from his employment by the partnership. Rather, defendant seeks to distinguish the Gleason case because it was decided upon a motion to strike portions of the answer and there were no allegations that the partner was an employer of the employee or that he was insured whereas in the instant case not only were such allegations made but evidence was introduced from which defendant contends inferences in support of the claim could be drawn. It may be that the Gleason case could have been decided on the narrow pleading point suggested, but a fair reading of the case permits no other conclusion than that the decision represents the considered opinion of this court on the question presented here. ¹ Defendant cites decisions in which this court has refused to treat a partnership as an entity for other purposes ² and decisions from many other jurisdictions which refuse to treat a partnership as an entity for purposes like, or similar to, that in the instant case. ³ However, we are committed to the view that, for the purpose of determining whether a partner is liable only for workmen's compensation as an employer or liable for demages as a third party, the partnership of which he is a member is a separate employing entity and an employee of the partnership is not the employee of the individual partner.

2. Having determined that defendant is not an employer of plaintiff within the meaning of the workmen's compensation act but is a third party liable for damages in a negligence action, we must further determine whether those damages are limited as to amount and manner of payment by § 176.06, subd. 1, which provides in part:

'Where an injury or death for which compensation is payable under circumstances also creating a legal liability for damages on the part of any party other than the employer, such party being at the time of such injury or death insured or self-insured in accordance with section 176.03, the employee in case of injury * * * may * * * proceed either at law against such party to recover damages or against the employer for compensation, but not against both.

'If the employee in case of injury * * * shall bring an action for the recovery of damages against such party other than the employer, the amount thereof, manner in which, and the persons to whom the same are payable, shall be as provided for by the workmen's compensation act, and not otherwise; * * *.

'The provisions of subdivision 1 of this section shall apply only where the employer liable for compensation and the other party or parties legally...