Riddle v. Higley Motor Company

• Citation: 252 P. 231,122 Kan. 458
• Decision Date: 08 January 1927
• Docket Number: 27,065
• Parties: JOHN H. RIDDLE, Appellee, v. HIGLEY MOTOR COMPANY, Appellant
• Court: Kansas Supreme Court

252 P. 231

122 Kan. 458

JOHN H. RIDDLE, Appellee, v. HIGLEY MOTOR COMPANY, Appellant

No. 27,065

Supreme Court of Kansas

January 8, 1927

Decided January, 1927.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

NEGLIGENCE--Recovery Under Workmen's Compensation Act No Defense. In an action brought on account of personal injuries received as the result of the defendant's negligence, a demurrer is properly sustained to an answer stating that the plaintiff has already made a claim on account thereof under the workmen's compensation statute against his employer, has effected a settlement thereof and has received payment in accordance therewith.

A. L. Berger, of Kansas City, for the appellant.

No appearance was made for the appellee.

OPINION

MASON, J.:

John H. Riddle sued the Higley Motor Company on account of personal injury claimed to have been caused by the negligence of one of its truck drivers. The defendant among other matters alleged in its answer as a separate defense that at the time the plaintiff claimed to have been injured he was in the employ of the Wyandotte County Gas Company; that he made a claim under the workmen's compensation act against that company on account of the same injury; that the claim was adjusted by an agreement between himself and the company by which he received $ 900 in full settlement; and that by reason thereof he was precluded from maintaining the action against the defendant. A demurrer to this part of the answer was sustained, and this appeal is taken from that ruling.

The case is controlled, and an affirmance is required, by the decision in Moeser v. Shunk, 116 Kan. 247, 226 P. 784. There a similar defense in an action for damages for negligently causing a death was held to be demurrable. The plaintiff had received money upon the basis of the compensation act, but under an agreement with the employer and an insurer that it should be returned if recovery was had against the defendant, but should be credited on the claim for compensation if the employer should be held liable therefor. It was specifically recited in the agreement that the plaintiff did not thereby intend to accept compensation under the statute. A distinction between that case and this might be made on account of the terms of this contract, were it not for the fact that in arriving at the decision the court expressly and specifically treated the transaction to which it related as in effect a settlement between the employer and employee under the compensation act. In the opinion it was said:

"When the employer and the one entitled to compensation agree upon the amount to be paid and the time of its payment, there is no necessity for...