Novack v. Montgomery Ward & Co.
| Decision Date | 28 March 1924 |
| Docket Number | No. 23903.,23903. |
| Citation | 198 N.W. 294,158 Minn. 505 |
| Court | Minnesota Supreme Court |
| Parties | NOVACK v. MONTGOMERY WARD & CO. |
OPINION TEXT STARTS HERE
Appeal from District Court, Ramsey County; Hugo O. Hanft, Judge.
Action by Holger Novack against Montgomery Ward & Co. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.
The Workmen's Compensation Act destroys the parent's common-law action to recover for loss of services of an injured minor child who is an employee, and for the expenses incurred incident to such injuries.
If the parent desires to retain the common-law remedy, he may cause an election to be made by the employee not to be bound by part 2 of the act; and, if he fails to cause such election to be made, he accepts the provisions of the statute, and thereby surrenders his right to any other method or form of compensation.
When the Compensation Act applies it is exclusive of all other remedies. Geo. G. Chapin, of St. Paul, for appellant.
Ernest E. Watson, of Minneapolis, for respondent.
The facts in this case appear in the case of Holger Novack, as father and natural guardian of Gudrund Novack, a minor, v. Montgomery Ward & Co. (Minn.) 198 N. W. 290, in which an opinion has this day been filed which determines all the questions here involved except as hereinafter mentioned. We have, however, an additional question involved in this case, even though it has already been determined in the other action that the minor in her employment was within the provisions of the Workmen's Compensation Act; and that is as to whether or not this act has destroyed the parent's common-law action to recover for loss of service and for expenses incident to such injuries.
Section 9, c. 82, G. L. 1921, says that ‘if both employer and employee, shall, by agreement expressed or implied, or otherwise * * * become subject to part 2 of this act, * * *’ compensation shall be paid. Section 10 reads as follows:
‘Such agreement or the election hereinafter provided for shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in part 2 of this act, and an acceptance of all the provisions of part 2 of this act, and shall bind the employé himself, and for compensation for his death shall bind his personal representative, the surviving spouse and the next of kin, as well as the employer, and those conducting his business during bankruptcy or insolvency, for compensation for death or injury, as provided for by part 2 of this act.'
The Compensation Act also provides for medical, surgical, and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches, and apparatus, including artificial members. Section 19.
Section 13, c. 82, G. L. 1921, reads as follows:
‘Minors who are permitted to work by the laws of this state shall, for the purpose of part 2 of this act, have the same power to contract, make election of remedy, make settlements, and receive compensation as adult employés; subject, however, to the power of the Industrial Commission, in its discretion at any time to require the appointment of a guardian to make such settlement and to receive moneys thereunder or under an award.'
These provisions of the Workmen's Compensation Act are not really consistent with the idea of the parent now having the right to maintain this common-law action which the father is here trying to prosecute. In fact, this language and provisions are absolutely inconsistent with the father now having any such right. It takes from the parent the necessity to collect the expenses; it takes away from the minor his incapacity to contract, and gives to him, in reference to the subject, the powers of an adult; it requires a surrender of all other claim for compensation. The only reasonable construction is that the employee has surrendered all his common-law remedies. It is claimed that, even if the minor can waive the cause of action which he personally has at common law, this cannot affect the other right of action, that of the parent.
True, the right of action in each case rests upon the same foundation. However, the parent's common-law action is to recover a loss, namely, expense which he has been put to by reason of the injury, and for the loss of service. This act cares for the expenses and it clothes the minor with the authority of an adult and then gives a substituted compensation for all common-law remedies. In considering the father's claim, it must be kept in mind that this law contemplates a reciprocal yielding and giving up of rights existing at common law for the new and enlarged rights and remedies given by the Compensation ...
To continue reading
Request your trial
- Novack v. Montgomery Ward & Co.
- Novack v. Montgomery Ward & Co.
-
Winn-Lovett Tampa v. Murphree
...of the compensation law has been applied to bar suits for expenses of caring for the injured spouse or child. Novack v. Montgomery Ward & Co., 158 Minn. 505, 198 N.W. 294; Houston Pipe Line Co. v. Beasley, Tex.Civ.App., 49 S.W.2d 950; Deluhery v. Sisters of St. Mary, 244 Wis. 254, 12 N.W.2d......
-
Danek v. Hommer
...Co., 193 Iowa 708, 187 N.W. 493 (Ia.1922); Wall v. Studebaker Corp., 219 Mich. 434, 189 N.W. 58 (Mich.1922); Novack v. Montgomery Ward & Co., 158 Minn. 495, 198 N.W. 294 (Minn.1924); Treat v. Los Angeles Gas & Elec. Corp., 82 Cal.App. 610, 256 P. 447 (Cal.1927); Holder v. Elms Hotel Co., 33......