Roberts v. The Charles Wolff Packing Company

• Decision Date: 12 June 1915
• Docket Number: 19,520
• Parties: ZELORA ROBERTS, Appellee, v. THE CHARLES WOLFF PACKING COMPANY, Appellant
• Court: Kansas Supreme Court

149 P. 413

95 Kan. 723

ZELORA ROBERTS, Appellee, v. THE CHARLES WOLFF PACKING COMPANY, Appellant

No. 19,520

Supreme Court of Kansas

June 12, 1915

Decided. January, 1915.

Appeal from Shawnee district court, division No. 2; GEORGE H WHITCOMB, judge.

Judgment rendered.

SYLLABUS

SYLLABUS BY THE COURT.

1. WORKMEN'S COMPENSATION ACT--Measure of Damages for Injuries--Statutes. In case of partial incapacity the rule for measuring compensation due to an injured employee, under the workmen's compensation act, is prescribed in section 12 of that act, while the limitations as to the amount of recovery are fixed by section 11 of the act.

2. SAME. In the action of plaintiff for compensation it was agreed that his average earnings prior to the accident were $ 12 per week, and it was found that the average amount which he would probably be able to earn after the accident was $ 3 per week; his compensation, therefore, under the act would be fifty per cent of the difference in the earnings before and after the accident, to wit, $ 4.50 per week.

3. SAME--Judgment for Lump Sum--No Reduction to be Made for Immediate Payment. While an employer may be allowed redemption from liability under an award of compensation in the form of periodical payments by paying eighty per cent of the amount of payments that will become due, and while an employee who has been awarded compensation in periodical payments by agreement or arbitration may ask for and obtain judgment against the employer for eighty per cent of the sum of the payments due and to become due in cases where there is doubt as to the security of his compensation, these provisions have no application in an action for compensation where the court, in the exercise of its discretion, enters judgment for a lump sum in the first instance.

4. SAME--Notice of Accident--Presentation of Claim--Waiver. An employer may waive the requirements that notice shall be given to him by an employee of an accident within ten days after the accident occurs and that the claim shall be presented to him within three months after the accident, and, held, that the defendant herein by its acts and statements waived the failure of plaintiff to make a claim for compensation within the three-months period.

Edwin A. Austin, of Topeka, Adrian F. Sherman, and Thad. B. Landon, both of Kansas City, Mo., for the appellant.

Lee Monroe, James A. McClure, and C. M. Monroe, all of Topeka, for the appellee.

OPINION

JOHNSTON, C. J.

Zelora Roberts, an employee of The Charles Wolff Packing Company, fell into an elevator shaft which was insufficiently protected and sustained severe injuries. He brought this action under the workmen's compensation act (Laws 1911, ch. 218, as amended by Laws 1913, ch. 216), alleging that he had been totally disabled from performing work from July 15, 1913, when he was injured, until July 1, 1914, and that he would always be partially incapacitated from performing physical labor. It was agreed that the amount earned by a person in the grade of employment in which plaintiff was engaged was $ 12 a week, and defendant proposed to pay fifty per cent of that sum in periodical payments from July 29, 1913, with the interest then due, and to continue such payments until July 1, 1914, and also to confess judgment for periodical payments thereafter as upon an award until it might be reviewed, modified or canceled as provided by the governing statute, but the offer was denied. The defendant then answered, alleging that its only liability to plaintiff, according to the provisions of the workmen's compensation act, was for compensation during total incapacity equal to fifty per cent of the average weekly earnings of persons engaged in the same grade of work that plaintiff was doing at the time of the accident, and in case of partial incapacity periodical payments of from twenty-five to fifty per cent of the average weekly earnings to be continued, subject to cancellation or modification depending on the condition and capacity of the plaintiff, but that defendant was not liable to plaintiff in any event for judgment in a lump sum. It was further alleged that plaintiff had failed to give notice of the accident within ten days after it occurred or to make claim for compensation within three months after the accident, and that the failure to do so was a bar to the maintenance of the action as the failure was not due to any incapacity or other reasonable cause. The case was tried on an agreed statement of facts supplemented by a little oral testimony as to the nature and extent of the injury sustained by plaintiff, its effect upon him, and the part taken by the officers of the defendant at the time the plaintiff was injured. At the close of the testimony the defendant moved the court to take the case from the jury and render judgment in favor of plaintiff for $ 195 and for weekly payments thereafter of $ 6 a week as an award until judgment should be modified as provided in the act. The motion was overruled and the jury returned a verdict fixing the amount of recovery at the lump sum of $ 2474.87. Afterwards, on motion of the defendant, the court modified the judgment, reducing it from the amount stated to $ 1979.90, which the court determined was the present value of the award made by the jury, to wit, eighty per cent of the amount named in the verdict.

In behalf of the defendant it is insisted that the failure to present a claim for compensation within three months after the accident completely bars a recovery under the provisions of the act. It is provided that a proceeding for the recovery of compensation can not be maintained unless written notice of the accident is given within ten days thereafter and unless a claim for compensation has been presented within three months after the accident, or in case of death within six months from the date thereof. It is further provided that the absence of notice or any defect shall not be a bar unless the employer has been thereby prejudiced or if the failure to make a claim was occasioned by mistake, physical incapacity or other reasonable cause. (Laws 1913, ch. 216, § 6.) Apart from the fact that the defendant and its officers knew the circumstances and extent of the injury and plaintiff was treated by defendant's physician, there were admissions of liability and offers to confess judgment as well as motions that judgment be awarded in favor of plaintiff and against defendant for limited sums provided it was awarded in the form of periodical payments. The defendant thereby waived the failure of the plaintiff to make a claim within the prescribed time or at a time earlier than it was made. The plaintiff would not have been warranted, under the circumstances, in offering proof that there was reasonable cause for the delay when the defendant had already admitted liability under the law and had asked that judgment be awarded to plaintiff and against the defendant.

It is next contended that the court erred in denying the motion for periodical payments as in an award and in giving judgment for a lump sum in favor of the plaintiff. It is said that the act contemplates periodical or weekly payments of compensation upon the scale therein prescribed, and that whether the amount of compensation is determined by the parties themselves, by arbitrators or by courts and juries, the award must be made in the form of periodical payments, and that such payments are subject to modification, review or cancellation in accordance with the changing conditions and capacity of the employee. Three methods are provided for settling the compensation to be awarded workmen under the act: First, agreement of the parties; second, arbitration and third, action in court. Evidently the legislature contemplated that most of the cases would be settled by agreement of the parties in accordance with detailed provisions made in the act for measuring the compensation to be paid. In case differences should arise it was provided that compensation should be settled by arbitrators selected by the parties, who should not be bound by technical rules of procedure or evidence in reaching their decisions. It is provided that awards by agreement or by arbitration shall be in writing and be filed in the office of the clerk of the district court...