Pittsburgh, Cincinnati, Chicago and St. Louis Railroad Company v. Keith
| Decision Date | 11 March 1925 |
| Docket Number | 11,988 |
| Parties | PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILROAD COMPANY v. KEITH |
| Court | Indiana Appellate Court |
Rehearing denied July 2, 1925. Transfer denied April 25 1929.
From Johnson Circuit Court; Fremont Miller, Judge.
Action by Thomas Keith against the Pittsburgh, Cincinnati, Chicago and St. Louis Railroad Company. From a judgment for plaintiff, the defendant appealed.
Affirmed.
John Rynerson, E. L. Branigin and George W. Long, for appellant.
Staff & Staff and Henry E. White, for appellee.
Appellee recovered a judgment against appellant for $ 100 on account of a personal injury received August 11, 1920, and alleged to have been caused through the negligence of appellant. The injury arose out of and in the course of appellee's employment by the Allen A. Wilkinson Lumber Company. On September 13, 1920, appellee and his employer agreed that appellee was entitled to compensation for a named period, and amounting to $ 20.76 and that his medical and surgical expenses during the first thirty days after the injury were to be paid by the employer. On September 16, 1920, this agreement was filed with and approved by the Industrial Board. On September 13, 1920, appellee received from his employer a check for $ 20.76, signed by his employer's insurance carrier. When he received this check, he signed a receipt stating that it was received in settlement and satisfaction of all claims for compensation on account of said injury. Prior thereto, viz., on August 26, 1920, appellee consulted with an attorney for the purpose of collecting his claim against appellant for damages, and, on that day, his attorney wrote a letter to appellant demanding settlement of the claim.
Appellant contends that appellee, having collected compensation from his employer, cannot maintain this action for damages. Appellee contends that the circumstances under which he received the money from his employer were such as do not bar him from prosecuting this action.
Appellant complains of the action of the court in overruling its demurrer to the several paragraphs of reply, but since the same questions are presented by the specifications in the motion for a new trial, we proceed to a consideration of the action of the court in overruling that motion. The specifications in that motion are that the verdict is not sustained by sufficient evidence, that the verdict is contrary to law and that the court erred in giving certain instructions.
In addition to the facts hereinbefore stated, there is ample evidence to prove the following facts: On September 22, 1920, the lumber company, through its insurance carrier, paid the medical and surgical expenses occasioned by reason of the injury to appellee, the amount so paid being $ 12. When appellee signed the compensation agreement and accepted the check for $ 20.76, he did so with the understanding and belief that it would not interfere with his suit against appellant; that, at that time, he stated to Mr. Carter, the manager of the lumber company, that, if it interfered with such suit, he did not want it; that Mr. Carter at that time said that it did not satisfy the claim for damages against the railroad; that appellee at that time told Mr. Carter if he wanted to give him the money as a gift on his wages it would be all right, and that Mr. Carter said that was what he wanted to do and that appellee signed the agreement with that understanding. Neither appellee nor Mr. Carter knew whether such payment would or would not interfere with appellee's suit against the railroad.
Mr. Carter testified that when he gave appellee the check, he told appellee it released the lumber company from any other liability, and if he expected to get any more money he would have to go after the other parties; that on October 25, 1920, he and appellee had a talk about the latter paying back the $ 20.76, which he had received and that appellee said he had decided to return the money; that appellee then gave him a check for that amount and asked him to send it to the insurance company, which Mr. Carter promised to do; that appellee at that time said his lawyer had advised him to return the money and that he was acting on the advice of his lawyer.
Appellee testified that he did not know anything about the compensation act when he received the $ 20.76 from the lumber company; that, prior thereto, he had talked with his lawyer about a suit against the railroad company and accepted the $ 20.76 with the understanding and belief that it would not interfere with that suit; that Mr. Carter told him it was a gift; that he later learned the insurance carrier had paid the doctor, after which he offered to pay the doctor and asked the doctor to return the money he had theretofore received from the insurance carrier; that the doctor did not accept the money from him, and that he has kept enough money in the bank to cover the check which he gave to the lumber company. The evidence also shows that the check so given by appellee has never been cashed. There is some evidence that appellee requested the lumber company to hold this check, although this is denied by appellee. There is no evidence that the lumber company made any objection to receiving the check from appellee, or that it has ever returned or offered to return it to appellee.
Section 13 of the Workmen's Compensation Act, Acts 1919 p. 158, § 8020w Burns' Supp. 1921, reads as follows: "Whenever an injury or death, for which compensation is payable under this act, shall have been sustained under circumstances creating in some other person that the employer a legal liability to pay damages in respect thereto, the injured employee, or his dependents, in case of death, at his or their option, may claim compensation from the employer or proceed at law against such other person to recover damages, or may proceed against both the employer and such other person at the same time, but he or they shall not collect from both; and if compensation is awarded and accepted under this act, the employer, having paid compensation or having become liable therefor, may collect in his own name or in the name of the injured employee or, in the case of death, in the name of his dependents, from the other person in whom legal liability for damages exists, the compensation paid or payable to the injured employee or his dependents."
In passing upon the question of the rights of an injured employee as against an alleged negligent third person after such injured employee had collected compensation under the Workmen's Compensation Act, the Supreme Court, speaking by Judge Ewbank in Pittsburgh, etc., R. Co. v. Parker (1921), 191 Ind. 686, 132 N.E. 372, 134 N.E. 890, 19 A. L. R. 751, said: "The great weight of authority holds that under the provision, as recited, the injured employee 'shall not collect from both' the employer and a third person who caused his injury, and that an employer, 'having paid compensation or having become liable therefor, may collect . . . the indemnity paid,' an employee, who petitioned for the review of an award made in his favor, and procured it to be fixed at a definite amount, payable in weekly installments, and thereafter, for many months, accepted from his employer and receipted for the weekly payments as they became due, surrendered whatever right he might have had to recover at common law from a third person whose negligence caused his injuries, damages in excess of the compensation awarded him." And continuing on page 696, the court said: "The meaning of the statute seems too plain to admit of any possible construction other than that when the injured workman goes so far as to 'collect' from the employer under the Workmen's Compensation Law, he is forbidden also to recover an additional amount in an action at law against a third person whose negligence caused his injury."
On petition for rehearing, the court said: ...
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