Robert Gleason v. Myrel Sing
| Decision Date | 02 May 1941 |
| Docket Number | 32,742 |
| Citation | 297 N.W. 720,210 Minn. 253 |
| Parties | Robert Gleason v. Myrel Sing |
| Court | Minnesota Supreme Court |
Action in the district court for Chisago county to recover for personal injuries and damage to plaintiff's truck in a collision with a truck owned by defendant and operated by one Mickelson. From an order, Alfred P. Stolberg, Judge, granting plaintiff's motion to strike as frivolous certain portions of the answer, defendant appealed. Affirmed.
G. P Mahoney and John S. Morrison, for appellant.
S Bernhard Wennerberg, for respondent.
The opinion of the court was delivered by: Olson
Workmen's compensation -- third-party liability -- application to member of partnership covered by act.
1. Where plaintiff, an employe of a partnership of which defendant was a member, was injured in a collision between a truck owned and operated by him and defendant's truck operated by another employe of the partnership, both drivers being engaged in due course of partnership business and in furtherance of a common enterprise, and where neither defendant in his individual capacity nor the driver of his truck was insured or self-insured as required by L. 1937, c 64, § 5(2), 3 Mason Minn. St. 1940 Supp. § 4272-5(2), but both drivers and the partnership were insured under the compensation act, held, in common-law action for damages based on alleged negligence of defendant's driver, that plaintiff's motion to strike from defendant's answer certain allegations in respect to plaintiff's election to take the benefits accruing under the compensation act was properly granted.
Workmen's compensation -- third-party liability -- employer-employe relationship.
2. There was no employer-employe relationship between plaintiff and defendant, the partnership being plaintiff's employer, not defendant in his individual capacity.
Workmen's compensation -- basis of third-party liability and employer's liability under compensation act.
3. Third-party liability has for its basis negligent conduct by one not the employer of the injured workman, and the amount of recovery is measured by the common-law standard of damages, whereas an employer's liability under the compensation act is determined by the standards fixed thereby.
Workmen's compensation -- third-party liability -- statute.
4. The present act, L. 1937, c. 64, § 5(2), 3 Mason Minn. St. 1940 Supp. § 4272-5(2), recognizes and preserves the common-law liability resting upon a third party's negligence causing injury to another's employe.
In an action to recover damages for personal injuries and damage to plaintiff's truck in a collision upon a public highway in Chisago county between a truck owned and operated by plaintiff and one owned by defendant and operated by one Mickelson, defendant appealed from an order granting plaintiff's motion to strike certain portions of his answer as frivolous.
The complaint is the conventional one in respect to defendant's claimed negligence, and damages are sought on the basis of an owner's liability under 3 Mason Minn. St 1940 Supp. § 2720-104, providing that whenever any motor vehicle is operated upon our highways "by any person other than the owner, with the consent of the owner express or implied, the operator thereof shall in case of accident be deemed the agent of the owner of such motor vehicle in the operation thereof."
Defendant's answer admits his ownership of the truck and that it was being operated by Mickelson "at the time mentioned" in the complaint, but he specifically denies that the collision was "due to or occasioned by any negligence on the part of" Mickelson or defendant. All other averments in the complaint are denied, and, in addition, he avers that if plaintiff suffered any personal injuries or damages to his truck as a result of the collision "the same were caused or contributed to, either wholly or in part, by his [plaintiff's] own negligence." Then follow the allegations of the answer stricken, which may be thus summarized: At the time and place of collision Mickelson was employed by a copartnership consisting of defendant and three other persons, doing business as Star Construction Company; that plaintiff and Mickelson were both engaged in the performance of their work for the construction company; that plaintiff, Mickelson, and the construction company were all subject to the provisions of the workmen's compensation act; that the injuries suffered by plaintiff were caused either wholly or in part by the negligence and want of care of plaintiff's fellow servant (Mickelson) while both were engaged in due course of business of the company, in furtherance of a common enterprise, and in the accomplishment of the same or related purpose; that plaintiff thereafter instituted proceedings before the industrial commission and obtained compensation and medical and hospital benefits from the company and its insurer; that plaintiff is still receiving such benefits; and that thereby plaintiff has exercised an irrevocable option to take under the compensation law and "is now barred and concluded from proceeding at law to recover damages for such alleged injury against this defendant, or any other person."
Important to note is the fact that there is no claim made that defendant was the employer of plaintiff or that he or the driver of his truck was insured or self-insured. Thus the only question presented is whether L. 1937, c. 64, § 5(2), 3 Mason Minn. St. 1940 Supp. § 4272-5(2), permits the bringing of a negligence action in the circumstances related. If that question is answered in the affirmative the order must be sustained; otherwise reversed.
1. 3 Mason Minn. St. 1940 Supp. § 4272-5(2), so far as here material, provides:
"Where an injury or death for which compensation is payable is caused under circumstances also creating a legal liability for damages on the part of any party other than the employer * * * or where said party or parties other than the employer are not insured or self-insured at time of such injury * * *, legal proceedings may be taken by the employe * * * against such other party or parties to recover damages, notwithstanding the payment by the employer or his liability to pay compensation hereunder, but in such case, if the action against such other party or parties is brought by the injured employe * * * and a...
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