Monson v. Battelle

• Decision Date: 12 January 1918
• Docket Number: 21,138
• Citation: 170 P. 801,102 Kan. 208
• Parties: WESTYE MONSON, Appellee, v. A. C. BATTELLE, Appellant
• Court: Kansas Supreme Court

170 P. 801

102 Kan. 208

WESTYE MONSON, Appellee, v. A. C. BATTELLE, Appellant

No. 21,138

Supreme Court of Kansas

January 12, 1918

Decided January, 1918.

Appeal from Franklin district court; CHARLES A. SMART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. COMPENSATION ACT--Assignment of Judgment. The question whether an injured workman may assign a judgment under the workmen's compensation act to a trustee for the benefit of his children, considered but not determined.

2. SAME--Lump Sum Judgment--Death of Employee--Revivor of Judgment. A lump sum judgment in favor of an injured workman under the workmen's compensation act, although the statute forbids its assignment, does not abate by his death but may be revived in the name of an administrator.

3. SAME--Injury Occurred on Premises of Employer. The evidence in an action under the compensation statute held to support a finding that the plaintiff was injured on the premises where he was employed, by having to wade through flood water which had overflowed the defendant's car works; an old wound on his foot being thereby infected, requiring an amputation.

4. SAME--Injury "By Accident." Such an injury is one "by accident," within the meaning of the phrase as used in the statute.

5. SAME--Injury Arose "In Course of Employment." Such an injury is one arising out of and in the course of the plaintiff's employment, within the meaning of the statute.

6. SAME--Hypothetical Question. Objections to the form of a hypothetical question held not to justify a reversal.

7. SAME--Petition for New Trial--Proceeding on Appeal. The situation held not to require a withholding of the determination of the case by this court to give opportunity for a hearing on a petition for a new trial.

Adrian F. Sherman, of Topeka, Fred M. Harris, of Ottawa, and Thad B. Landon, of Kansas City, Mo., for the appellant.

W. S. Jenks, of Ottawa, for the appellee.

Mason J. Porter, J., dissents.

OPINION

MASON, J.:

Westye Monson recovered a lump sum judgment under the workmen's compensation act against A. C. Battelle. An appeal was taken, pending which a revivor was ordered by this court in the name of Elizabeth Appleros, to whom an assignment of the judgment had been executed by the plaintiff, and who is the administratrix of his estate. The defendant moves to set aside the order of revivor, and also asks (in the event of his motion being overruled) that the judgment be reversed because the evidence did not bring the case within the operation of the compensation act.

1. The defendant maintains that the assignment of the judgment was a nullity because forbidden by the statute. (Gen. Stat. 1915, § 5909; Laws 1917, ch. 226, § 5.) The act as it stood at the time the assignment was made read as follows:

"The payments due under this act, as well as any judgment obtained thereunder, shall not be assignable or subject to levy, execution or attachment, except for medicine, medical attention and nursing." (Gen. Stat. 1915, § 5909.)

Here the assignment was made to Elizabeth Appleros, in trust for the four children of the judgment plaintiff. The object of the statute was doubtless to prevent the fund being diverted from the purpose for which it was intended. An assignment to a trustee for the benefit of the children of an injured workman would not seem necessarily to conflict with the spirit of the law. We shall assume, however, without deciding, that the assignment is invalid.

2. The argument against a revivor being allowed in the name of the administratrix is based upon the contention that "under the compensation law, the right to compensation and any judgment for compensation abates upon the death of the employee, and does not survive to his heirs or representatives." In support of this contention it is argued that compensation where death results from an injury to a workman is allowed only to his dependents, and therefore his heirs as such, or his executor or administrator, have nothing to do with it. That situation, however, is obviously not fully analogous to the one here presented, where a judgment was rendered in favor of the workman. It has been held that a judgment under the compensation act, providing for periodical payments to an injured workman, although subject to commutation, does not survive the plaintiff's death. (Wozneak v. Buffalo Gas Co., 175 A.D. 268, 161 N.Y.S. 675.) In the case cited the trial court had decided to the contrary, and two of the five appellate judges dissented from the reversal. That decision, however, if accepted as sound, would not control here. In the present case the plaintiff had obtained an absolute personal judgment requiring the immediate payment of a fixed amount. It was the legal duty of the defendant to pay it at once, unless a stay should be procured pending an appeal. If payment had been made the money would have been wholly at the disposal of the plaintiff. If the final result is an affirmance it will amount to an adjudication that the rights of the parties shall remain as fixed at the time the judgment was rendered. The defendant gains no immunity from the fact of his having taken an appeal which is ultimately determined not to have been well founded.

The final argument against the right of revivor, is that because the judgment is not assignable it does not survive the death of the plaintiff. It is true that as a rule causes of action which are not assignable do not survive. (1 C. J. 175, 176.) But a judgment based on a nonsurviving cause of action ordinarily does survive (1 C. J. 169), and does so in this state, notwithstanding the pendency of an appeal. ( Powers v. Sumbler, 83 Kan. 1, 110 P. 97.) Moreover, while as a rule causes of action which are not assignable do not survive, this is because of qualities that inhere in the nature of the right. Where the statute for some special purpose, as the protection of a claimant against improvidence, forbids assignment, nonsurvivability does not necessarily result therefrom. The new government war savings certificates are expressly made not transferable, but it will hardly be doubted that the title would pass to the heirs or personal representatives of the owner upon his death. We hold that if the assignment was invalid the revivor was properly made in the name of the administratrix.

3. The plaintiff's claim was that he had been injured by having to wade through foul and impure flood water which had overflowed the yards of the defendant's car works, where he was employed; that at the time an old injury to his foot had not healed; and that infection followed, as a result of which amputation became necessary. The defendant insists that there was no evidence that the loss of the foot was caused by reason of contact with the water. The plaintiff testified that his foot was badly swollen on the morning after the exposure referred to; that the swelling increased for several days; that he received no subsequent injury; and that amputation followed shortly. At least one physician testified that from the history of the case, as embodied in a hypothetical question which fairly covered the ground indicated, he thought it probable that the amputation was made necessary by infection caused by wading through the water. This was sufficient to take that issue to the jury.

4. The statute relates only to injuries "by accident arising out of and in the course of employment." (Gen. Stat 1915, § 5896; Laws of 1917, ch. 226, § 27.) It is contended that the plaintiff's injury was not the result of an accident. The infection of an existing wound by contact with foreign matter seems to be within the ordinary meaning of the term--"an unlooked-for and untoward event which is not expected or designed." (Notes, L. R. A. 1916A, 227, 1917D, 103; Workmen's Compensation Acts, a Corpus Juris Treatise by Donald J. Kiser, § 54, p. 64.) The contracting of typhoid fever through...