Rumbaugh v. VonFeldt

• Decision Date: 26 January 1963
• Docket Number: No. 43195,43195
• Citation: 378 P.2d 5,190 Kan. 798
• Parties: Earl RUMBAUGH, Appellee, v. Andrew F. VonFELDT, Appellant.
• Court: Kansas Supreme Court

Page 5

378 P.2d 5

190 Kan. 798

Earl RUMBAUGH, Appellee, v. Andrew F. VonFELDT, Appellant.

No. 43195.

Supreme Court of Kansas.

Jan. 26, 1963.

Syllabus by the Court.

Under the provisions of G.S.1961 Supp. 44-504, an employer who has been reimbursed for compensation paid an injured employee may bring an action for the benefit of the employee, during the second year following the injury, against a negligent third party causing the injury.

Norbert R. Dreiling, Hays, for appellant.

Edgar M. Miner, Hays, for appellee.

The opinion of the court was delivered by

PARKER Chief Justice.

This appeal stems from an action to recover damages from an alleged negligent third party, for injuries to an employee compensated under the Workmen's Compensation Act. The facts are not disputed.

On January 12, 1960, Earl Rumbaugh was injured while in the course of his employment for Melvin L. Jarvis. It is contended that the injuries resulted from the negligence of a third party, Andrew F. VonFeldt.

Rumbaugh filed a claim against his employer, Jarvis, under the Workmen's Compensation Act. Following a hearing, held on December 20, 1960, Rumbaugh was awarded $2,246.18 against Jarvis and his insurance carrier, Hartford Accident and Indemnity Company. The insurer paid the award and received from Rumbaugh a subrogation assignment which provided in part as follows:

'* * * in consideration of the said payment of workmen's compensation benefits and the mutual covenants herein expressed, the undersigned hereby assigns and subrogates to the said Jarvis Construction Company and Hartford Accident and Indemnity Company, all of the rights, claims and interests which the undersigned may have against said Andy F. VonFeldt, Hays, Kansas, to the amount of and not exceeding $2,246.18, and authorizes said Jarvis Construction Company and/or the Hartford Accident and Indemnity Company to sue, compromise and settle said subrogation claim, in the undersigned's name or otherwise, to the extent of and not exceeding said sum of $2,246.18, and to execute releases and endorse checks or drafts given in settlement of said subrogation claim.

'Provided, however, the said Jarvis Construction Company and Hartford Accident and Indemnity Company shall have no right, power or authority to settle or compromise any claim or chose in action which the undersigned has or may have against the said Andy F. VonFeldt by reason of said accidental injury, in excess of said award in the sum of $2,246.18, and any settlement or payment by the said Andy F. VonFeldt or his liability insurance carrier to Jarvis Construction Company or Hartford Accident and Indemnity Company in settlement of said subrogation lien shall in no manner effect or constitute a release of the claim of the undersigned against said Andy F. VonFeldt in excess of said subrogation claim for workmen's compensation benefits paid.'

Subsequently the Western Casualty and Surety Company, the liability insurer for the alleged negligent third party, VonFeldt, reimbursed Hartford Accident and Indemnity Company for the compensation award paid by it to Rumbaugh and took a release. The release was dated January 31, 1961, and signed only by the Hartford Accident and Indemnity Company.

The release acknowledged the receipt of $2,246.18 and further provided that the undersigned does hereby and for its,

'* * * heirs, executors, administrators, successors and assigns release, acquit and forever discharge Andy Von Feldt and his, her, their or its agents, servants, successors, heirs, executors, administrators and all other persons, firms, corporations, associations or partnerships of and from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever, which the undersigned now has/have or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen bodily and personal injuries and property damage and the consequences thereof resulting or to result from the accident, casualty or event which occurred on or about the 12th day of January, 1960, at or near Hays, Kansas.

'It is understood and agreed that this settlement is the compromise of a doubtful and disputed claim, and that the payment made is not to be construed as an admission of liability on the part of the party or parties hereby released, and that said releasees deny liability therefor and intend merely to avoid litigation and buy their peace.'

This action was filed July 7, 1961. Earl Rumbaugh appeared in the caption as plaintiff, and the petition was signed and verified by him. In addition to allegations as to negligent injury the petition stated:

'This action is brought in the name of and through Earl Rumbaugh by Melvin L. Jarvis, * * * Saline County, Kansas, as the employer of Earl Rumbaugh, on behalf of Melvin L. Jarvis, * * * and Earl Rumbaugh, for their benefit as their interest may appear. Said Earl Rumbaugh had and received benefits under the Workmen's Compensation Act of the State of Kansas for injury received in an accident occurring on January 12, 1960, which arose out of and in the course of his employment with Melvin L. Jarvis, * * * Said Earl Rumbaugh, as the injured workman thereunder, failed to bring action or pursue his remedy by proper action against Andrew F. VonFeldt, where the injury to him for which compensation was payable was caused under circumstances alleged herein to create a legal liability against defendant Andrew F. VonFeldt, within one year from the date of injury, thereby operating as an assignment to Melvin L. Jarvis, * * * his employer, of any cause of action in tort which he may have against another party for such injury. Such action in tort for his injury is thereby assigned to Melvin L. Jarvis, * * * and brought by him in the name of Earl Rumbaugh by the provisions of General Statutes of Kansas, 1959, Supp., 44-504, for the amount paid in Workmen's Compensation benefits by said Melvin L. Jarvis, * * *, and on behalf of plaintiff, Earl Rumbaugh, for his injury and damage, as their interests appear.' The prayer of such pleading read:

'WHEREFORE, Melvin L. Jarvis, * * * in the name of and through Earl Rumbaugh on behalf of Melvin L. Jarvis and Earl Rumbaugh, as their interests appear, prays judgment against the defendant in the total sum of $33,940.05 together with costs herein and for such other and further relief as the Court may deem equitable and just.'

The defendant (VonFeldt) filed a demurrer to the petition in which, along with other grounds not here involved, he charged that (a) 'the plaintiff, Earl Rumbaugh had no legal capacity to sue in the matter,' and (b) 'the petition showed on its face the plaintiff was not the real party in interest.' This demurrer was overruled and the defendant filed an answer in which he renewed his demurrer with other defenses.

The district court first determined the legal questions, leaving the question of negligence and amount of damages for later determination by a jury if the legal questions were determined adversely to VonFeldt's contentions. The matter was presented to the district court largely on a stipulation which developed the facts heretofore stated. The lower court made very complete and comprehensive findings of fact and conclusions of law in which it concluded:

'The cause of action was properly brought in the name of plaintiff Earl Rumbaugh on either or both of two valid theories, namely: (a) by the employer Melvin L. Jarvis in the name of the employee plaintiff Earl Rumbaugh on behalf on each 'as their interests may appear' as provided in G.S.1959 Supp., Sec. 44-504; or (b) by the plaintiff Earl Rumbaugh for himself and on behalf of the employer Melvin L. Jarvis 'as their interests may appear' as permitted in G.S.1959 Supp., Sec. 44-504 * * *

'Under either theory * * *, the plaintiff or the employer Melvin L. Jarvis is not required to tender return of the $2,246.18 paid the Hartford Accident & I. Co. by defendant as shown by the release * * * Said sum of $2,246.18, however, shall be treated as an item of credit if and when the employee plaintiff's real damages are judicially ascertain and allowed * * *'

VonFeldt has appealed raising only two questions for review--(1) Who is the real party in interest in the action, and (2) Was the cause of action barred by G.S.1959 Supp., 44-504 because not brought within one year after the alleged injury to Rumbaugh? His contentions are summarized as follows:

'In summary, the Appellant contends employer Jarvis was not and could not be a proper party to this action, that he had no interest herein or benefit to gain from the action. As a result thereof only Rumbaugh is a real party in interest as defined by Section 60-401 of the General Statutes. Since Rumbaugh did not file within the year required of employees and particularly since Jarvis and Hartford settled out their claims so that no interest remained on which to base an action brought by the employer, this action instituted by employee Rumbaugh alone was brought too late and is barred by Section 44-504 aforementioned.'

We must look to the provisions of G.S.1959 Supp., 44-504 for the determination of this controversy. So far as here pertinent such statute reads:

'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...