Rogers v. Joplin & Pittsburg Railway Company

• Citation: 225 P. 108,115 Kan. 815
• Decision Date: 05 April 1924
• Docket Number: 25,180
• Court: Kansas Supreme Court
• Parties: JOSEPH M. ROGERS, Appellant, v. JOPLIN & PITTSBURG RAILWAY COMPANY, Appellee

225 P. 108

115 Kan. 815

JOSEPH M. ROGERS, Appellant, v. JOPLIN & PITTSBURG RAILWAY COMPANY, Appellee

No. 25,180

Supreme Court of Kansas

April 5, 1924

Decided January, 1924.

Appeal from Cherokee district court; FRANK W. BOSS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WORKMEN'S COMPENSATION ACT--Injuries to Workman--No Demand for Compensation Within Three Months After Accident--Action Barred. The statutory rule followed that except in cases where a workman's injuries have incapacitated him from making a demand for compensation within three months after his accident and injury, the workman's failure to make such claim on his employer within the time allowed is a bar to recovery. (R. S. 44-520.)

2. SAME--No Waiver of Demand Shown. The statutory prerequisite to an injured workman's right to compensation that a demand be made on his employer therefor within three months was not waived by a statement by the employer to the workman "When you want any compensation or assistance, let me know"; nor was it waived by the employer's advice to the workman that the latter should try to recover damages from a third party whose negligence was the direct, immediate and proximate cause of plaintiff's injury.

C. S. Denison, and E. V. Bruce, both of Pittsburg, for the appellant.

John P. Curran, of Pittsburg, and Fred A. Walker, of Columbus, for the appellee.

OPINION

DAWSON, J.:

Plaintiff sought to maintain this action under the Workmen's Compensation Act. At the conclusion of plaintiff's opening statement, defendant's motion for judgment on the petition and opening statement was sustained.

Plaintiff appeals.

The facts pleaded and stated on plaintiff's behalf were these: Plaintiff was a conductor on defendant's interurban railway. Both were working under the compensation act. On November 20, 1919, plaintiff stepped off his car to throw a switch in a street in Pittsburg. While so engaged, one H. H. Hall, driving an automobile in the street, struck the plaintiff, knocked him down, and hurt his leg and otherwise injured him. Notwithstanding his injuries plaintiff finished his immediate work for the day, but was then compelled to lay off until November 26, 1919, when he returned to labor although he was still partially disabled, and he continued to perform his service for the defendant except for a lay-off of one day and another lay-off of two days on account of his crippled leg, until December 16, 1919, when he was compelled to quit because of a further mishap which occurred, as plaintiff alleged:

"That on the 16th day of December, 1919, the plaintiff, not knowing the exact condition of his right leg, and not knowing that the bone thereof had been fractured or broken when struck by said automobile, was engaged in a friendly scuffle with his wife when plaintiff's son, then about 15 years of age, came into the house and said to plaintiff: 'Why don't you jump onto a man'; that thereupon this plaintiff turned quickly, and in a playful manner to grab for his son, when plaintiff's right leg and the bone therein, at the place where it had been struck by said automobile, suddenly snapped in two, and became completely fractured; that said fracture was about two inches above the ankle bone, and said bone had been partially, but not completely fractured, when plaintiff was struck by said automobile, and when the plaintiff suddenly turned as aforesaid, to grab his son, the weakened condition of said bone, caused by reason of said partial fracture, as aforesaid, said bone to become completely fractured; that plaintiff had said fracture reduced, but the bone became diseased, and plaintiff was compelled to have said right leg operated upon; part of the bone removed therefrom and a silver plate inserted in said leg to support the same. That plaintiff has, except as hereinbefore stated, ever since the 16th day of December, 1919, and always will be wholly disabled from performing any work or labor, particularly that of street car conductor."

Plaintiff also alleged that defendant had actual knowledge of plaintiff's injuries and on December 22, defendant's assistant general manager, Fennimore, told plaintiff--

"That when plaintiff wanted any compensation or assistance to let him, the said Fennimore know, and the defendant thereby waived presentation of claim for compensation within three months from date of plaintiff's injury."

Plaintiff also pleaded:

"That the defendant by and through J. A. Fennimore, its duly appointed assistant general manager, and John P. Curran, its duly appointed attorney, within three months after the plaintiff's injury, and disability, requested this plaintiff to try and recover damages for his injuries from the said H. H. Hall, the driver of said automobile, by way of settlement, and the plaintiff pursuant to said requests...