Roda v. Williams

• Citation: 195 Kan. 507,407 P.2d 471
• Decision Date: 06 November 1965
• Docket Number: No. 44199,44199
• Parties: George W. RODA and Mary Roda, Appellees and Cross-Appellants, v. R. C. WILLIAMS, II, Appellant.
• Court: United States State Supreme Court of Kansas

Page 471

407 P.2d 471

195 Kan. 507

George W. RODA and Mary Roda, Appellees and Cross-Appellants, v. R. C. WILLIAMS, II, Appellant.

No. 44199.

Supreme Court of Kansas.

Nov. 6, 1965.

Syllabus by the Court

1. At common law, fellow employees mutually owed to each other the duty of exercising ordinary care and each was liable for a failure in that respect which resulted in injury to a fellow employee.

2. The history of the Kansas Workmen's Compensation Act reveals there has never been any complete abrogation of previously existent common law and statutory rights against a negligent third party other than an employer. Rather there has been recognition and preservation of those rights with varying abridgments and adjustments where compensation might also be recovered.

3. A general rule of construction of statutes is that words in common use are to be given their natural and ordinary meaning.

4. Where the language of a statute is plain and unambiguous and conveys a clear and definite meaning the court has no right to look for or impose another meaning.

5. The rights and duties under the workmen's compensation act are contractual in nature.

6. A co-employee is to be considered as 'some person other than the employer' as contemplated in K.S.A. 44-504.

7. The heirs of a deceased employee who was within the workmen's compensation act may maintain a wrongful death action against a negligent co-employee causing the death.

8. Absent evidence of pecuniary loss, there is no definite and precise rule for the assessment of damages in a wrongful death action. Such damages are to be awarded by the court or jury as are found to be fair and just under all the facts and circumstances.

9. Claims of error, based on the trial court's order overruling motion for new trial on the issue of damages only because of inadequacy of verdict and improper jury argument, examined, and held, inadequacy of verdict is not shown from evidence, and in view of failure to object to such improper argument, trial court did not err in denial of motion for new trial. Robert L. Earnest, Russell, argued the cause, and Eric E. Smith, Russell, with him on brief for appellant.

J. Eugene Balloun, Great Bend, argued the cause and H. Lee Turner and James Berglund, Great Bend, with him on brief for appellees and cross-appellants.

Howard M. Immel, Iola, on brief amicus curiae for the Kansas Motor Carriers Assn.

HARMAN, Commissioner.

This is an action for wrongful death pursuant to K.S.A. 60-1901 et seq. Appellees are the heirs at law and parents of a twenty year old boy killed as a result of alleged negligence of a fellow employee while working for a common employer. Decedent was subject to the Kansas Workmen's Compensation Act, under which appellees received death benefits from the employer and its insurance carrier in the sum of $1,640.00. A jury trial resulted in a verdict for appellees for $4,000.00. The sole question involved in the principal appeal is whether the heirs of a deceased employee may maintain a wrongful death action against a negligent co-employee causing the death when the deceased employee was subject to the Kansas Workmen's Compensation Act.

At common law, fellow employees mutually owed to each other the duty of exercising ordinary care in the performance of their duties and each was liable for a failure in that respect which resulted in injury to a fellow employee. Has this right been abrogated by our workmen's compensation act?

We recognize that the right to recover for wrongful death did not exist at common law, being one created by statute. For discussion purposes here, however, we may equate actions for wrongful death generally with common law actions for personal injury inasmuch as we have had a wrongful death statute since statehood and the same general principles are applicable.

The precise question here has not been decided by this court, the answer lying upon the interpretation to be given our workmen's compensation act and particularly K.S.A. 44-504 which provides:

'When the injury or death for which compensation is payable under this act was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured workman, his dependents or personal representatives shall have the right to take compensation under the act and pursue his or their remedy by proper action in a court of competent jurisdiction against such other person.

'In the event of recovery from such other person by the injured workman or the dependents or personal representatives of a deceased employee by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by him to date of such recovery and shall have a lien therefor against such recovery and the employer may intervene in any action to protect and enforce such lien: Provided, That whenever any judgment in any such action, settlement or recovery otherwise shall be recovered by the injured workman, his dependents or personal representative prior to the completion of compensation or medical aid payments, the amount of such judgment, settlement or recovery otherwise actually paid and recovered which is in excess of the amount of compensation and medical aid paid to the date of recovery of such judgment, settlement or recovery otherwise shall be credited against future payments of said compensation or medical aid. Such action against the other party, if prosecuted by the workman, must be instituted within one (1) year from the date of the injury, and if prosecuted by the dependents or personal representatives of a deceased workman, must be instituted within eighteen (18) months from the date of such injury.

'Failure on the part of the injured workman, or the dependents or personal representatives of a deceased workman to bring such action within the time herein specified, shall operate as an assignment to the employer of any cause of action in tort which the workman or the dependents or personal representatives of a deceased workman may have against any other party for such injury or death, and such employer may enforce same in his own name or in the name of the workman, dependents or personal representatives for their benefit as their interest may appear by proper action in any court of competent jurisdiction. The court shall fix attorney fees which shall be paid proportionately by the employer and employee in the amounts determined by the court.'

This statute is the result of various amendments to a provision originally enacted in 1911 (Laws, 1911, ch. 218, § 5) which provided:

'Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability against some person other than the employer to pay damages in respect thereof. (a) The workman may take proceedings against that person to recover damages and against any person liable to pay compensation under this act for such compensation, but shall not be entitled to recover both damages and compensation; and (b) if the workman has recovered compensation under this act, the person by whom the compensation was paid, or any person who has been called on to indemnify him under the section of this act relating to subcontracting, shall be entitled to indemnity from the person so liable to pay damages as aforesaid, and shall be subrogated to the rights of the workman to recover damages therefor.'

The 1927 amendment to the same statute (Laws 1927, ch. 232, § 4) provided:

'When the injury or death for which compensation is payable under this act was caused under circumstances creating a legal liability against some person other than the employer to pay damage, the injured workman or his personal representative shall within ninety (90) days of the date of receiving said injury elect whether to take compensation under this act or to pursue his remedy against such other person. Such election must be in writing and must be delivered to the employer in person or by registered mail, and the acceptance of compensation by an injured workman shall be construed as a positive election to accept compensation under this section. Failure on the part of the injured employee or his personal representative to file a written election with the employer within (90) days that he will pursue his remedy against the negligent third party shall operate as an election to accept compensation and as an assignment of any cause of action in tort which the employee or his personal representative may have against any other party for such injury or death, and such employer may enforce in his own name, or the name of the workman, the liability of such other party for their benefit as their interests may appear.'

A 1938 amendment (Laws 1938, ch. 50, § 1) permitted recovery for both damages and workmen's compensation. All of the acts provided some form of equitable adjustment between the workman and the employer in case of recovery of damages against a negligent third party, and subsequent amendments have dealt primarily with this subject, that is, subrogation of rights and the extent thereof, resulting in our present statute.

The proviso stating a right in some form to recover damages 'under circumstances creating a legal liability against some person other than the employer's has been in our act since its inception. The right existed at common law (and in the case of death, by statute) prior to the enactment of any workmen's compensation laws. The 1911 act preserved it but expressly denied the right to recover both damages and the newly created workmen's compensation. The 1927 amendment again stated the common law (and statutory) right to damages but required an election of remedies as between it and the right to workmen's compensation and further provided that certain action or inaction should be construed to constitute such election. The 1938 and all subsequent amendments have carefully preserved the...