Palmer v. Fincke

• Decision Date: 12 February 1927
• Docket Number: 27,328
• Citation: 122 Kan. 825,253 P. 583
• Parties: BENJAMIN PALMER, Appellant, v. CARL W. FINCKE, as Clerk of the District Court of Wyandotte County, Appellee
• Court: Kansas Supreme Court

253 P. 583

122 Kan. 825

BENJAMIN PALMER, Appellant, v. CARL W. FINCKE, as Clerk of the District Court of Wyandotte County, Appellee

No. 27,328

Supreme Court of Kansas

February 12, 1927

Decided January, 1927.

Appeal from Wyandotte district court, division No. 2; FRANK D HUTCHINGS, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. WORKMEN'S COMPENSATION ACT -- Nature and Scope of Remedy. The workmen's compensation act is a system complete in itself, is to be liberally interpreted and flexibly applied to accomplish its peculiar purpose. (Following Roper v. Hammer, 106 Kan. 374, 187 P. 858.)

2. SAME--Conclusiveness of Arbitrator's Decision. And further, the decision of an arbitrator thereunder upon issues properly before him is final except for the limited review provided by the statute. (Following Kinzer v. Gas Co., 110 Kan. 574, 204 P. 999. Also, 114 Kan. 440, 219 P. 278.)

3. SAME--Conclusiveness of Arbitrator's Decision--Execution to Enforce. And further, being final, having the essential attributes of a judgment, the decision of an arbitrator duly filed is an enforceable finality which may be put into effect by process of execution.

4. SAME -- Award of Arbitrator -- Execution to Compel Compliance With Award. Where an employee, working under the provisions of the workmen's compensation act and while engaged in the line of his employment sustained personal injuries by accident, filed application in due time for the appointment of an arbitrator, where the application was docketed, other preliminaries had, and an arbitrator appointed who, after full and complete hearing, filed an award in the office of the clerk of the district court and where the employer ignored the award and refused to pay the amount due thereunder, the employee was entitled to an execution to compel compliance with the terms of the award.

J. H. Brady and T. F. Railsback, both of Kansas City, for the appellant.

OPINION

HOPKINS, J.:

This controversy involves the question whether execution may issue on an arbitrator's award in a workmen's compensation case. It is presented in a proceeding in mandamus to compel the clerk of the district court to issue an execution on the award of an arbitrator filed in the office of the clerk of the district court. The writ was refused, and plaintiff appeals.

The facts are substantially these:

Plaintiff was employed by the Jennings Quarry and Crusher Company. While so engaged he sustained personal injuries by accident and in due time filed an application in the district court for the appointment of an arbitrator. The application was docketed, cost bond filed and other preliminaries had similar to the beginning of an action. The application alleged inability to agree upon an arbitrator and requested appointment of one to determine the character and quality of plaintiff's disability, the amount of compensation and the period for which it should continue. An arbitrator was appointed, and after full and complete hearing, filed an award in the office of the clerk of the district court. The employer ignored the award, under which several hundred dollars was due. Efforts to get the employer to pay being unavailing, plaintiff filed praecipe, requesting the clerk to issue execution for the amount due. The clerk refused on the theory that he was not so authorized by statute. The present proceeding was then instituted to compel issuance of the execution.

Consideration of various provisions of the workmen's compensation act is necessary. (Italics ours.) Section 44-501 of the Revised Statutes provides:

"If in any employment to which this act applies, personal injury by accident arising out of and in the course of employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation to the workman in accordance with this act." . . .

From which it appears the legislature contemplated payment, and not merely the creation of causes of action. Another section provides:

"That this act shall apply only to employment in the course of the employer's trade or business on, in or about, . . . . each of which employments are hereby determined to be especially dangerous, in which from the nature, conditions or means of prosecution of the work therein, extraordinary risk to the life and limb of the workmen engaged therein are inherent, necessary or substantially unavoidable, and as to each of which employment, it is deemed necessary to establish a new system of compensation for injuries to workmen." . . . (R. S. 44-505.)

From which it appears the workmen's compensation act is a new system added to the already existing methods of obtaining relief and should be construed as amendatory to, and cumulative of the ordinary rules of procedure in civil actions. Another section relating to computation of earnings reads:

"(e) If arbitration or litigation is necessary to establish the amount of compensation, credit shall be given to the employer by the arbitrator, arbitration committee or court for any amounts paid under this act prior to the date of the award or prior to the trial and judgment." (R. S. 44-511.)

From which it appears that arbitration and litigation are coordinate means employed to accomplish the same result--ascertain amount of compensation. Section 44-522 deals with arbitration and award. Another section dealing with the award reads:

"The committee or arbitrator shall not be bound by technical rules of procedure or evidence but shall give the parties reasonable opportunity to be heard and to present evidence, and shall act reasonably and without partiality, and shall make and file an award, with the consent to arbitration or the order of the court appointing the arbitrator attached, in the office of the clerk of the proper district court within sixty days after the committee meets to consider the claim or after the selection of the arbitrator, and shall give notice of such filing to the parties by mail. The parties may agree in writing to extend the time for filing the award, and if so, the award shall be filed within such extended time as is so agreed upon. If any committee or arbitrator to whom a claim for compensation shall have been submitted shall fail or neglect to file its or his award within the time fixed by this section, the court shall, upon the application of either party, order such committee or arbitrator to file such award within such time as the court shall by such order fix, which time shall in no case be greater than ten days from the date of such order." (R. S. 44-523.)

Various sections of the act set out the procedure in compensation cases: 44-524 has to do with fees of the arbitrator; 44-525 with form of the award; 44-526 prescribes the provisions for modification of the award; 44-527 deals with the final receipt for compensation and records by the court; 44-528 pertains to review of the award; 44-529 with judgment on the award; 44-531 contains provisions applicable when there is a lump sum payment of the award.

The question presented is whether plaintiff was entitled to an execution as in the case of an ordinary judgment. "A judgment is the final determination of the rights of the parties in an action. " (R. S. 60-3101.) "Every direction of a court or judge made or entered in writing and not included in a judgment is an order." (R. S. 60-3103.) "Executions shall be deemed process of the court and shall be issued by the clerk and directed to the sheriff of the county. They may be directed to different counties at the same time." (R. S. 60-3401.)

"Executions are of four kinds: First, against the property of the judgment debtor; second, against his person; third, for the delivery of the possession of real or personal property, with damages for withholding the same, and costs; fourth, executions in special cases." (R. S. 60-3402.)

"Lands, tenements, goods and chattels, not exempt by law, shall be subject to the payment of debts, and shall be liable to be taken on execution and sold, as hereinafter provided." (R. S. 60-3403.)

"The writ of execution against the property of the judgment debtor, issuing from any court of record in this state, shall command the officer to whom it is directed, that of the goods and chattels of the debtor he cause to be made the money specified in the writ; and for want of goods and chattels, he cause the same to be made...