Smith v. Kiel

• Decision Date: 05 April 1938
• Docket Number: No. 24623.,24623.
• Citation: 115 S.W.2d 38
• Parties: SMITH v. KIEL.
• Court: Missouri Court of Appeals

115 S.W.2d 38

SMITH v. KIEL.

No. 24623.

St. Louis Court of Appeals. Missouri.

April 5, 1938.

Rehearing Denied April 20, 1938.

Appeal from St. Louis Circuit Court; Ernest F. Oakley, Judge.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Act by Mary J. Smith, claimant, for the death of Walter H. Smith, her husband, opposed by Henry W. Kiel, trustee, St. Louis Public Service Company, employer. From a judgment of the Circuit Court reversing an award of the Workmen's Compensation Commission granting compensation, the claimant appeals.

Judgment of Circuit Court reversed, and cause remanded, with directions to affirm award of Workmen's Compensation Commission.

Karl P. Spencer and George F. Wise, both of St. Louis, for appellant.

T. E. Francis, S. G. Nipper, and B. G. Carpenter, all of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action by the widow of Walter H. Smith for the death benefit allowed under the Workmen's Compensation Law, Mo. St.Ann. c. 28, p. 8228 et seq. Smith was injured on September 10, 1935, while in the employ of the defendant as a street car conductor. On November 29, 1935, he entered into a compromise settlement with defendant, whereby, for and in consideration of the payment to him of the sum of $350 by defendant, he settled and compromised his claim and right to compensation which he then had or thereafter might have on account of his injury. The compromise settlement was reduced to writing and was duly approved by the Workmen's Compensation Commission. Employee's injury resulted from his being thrown against the top of a car seat by the sudden checking of the car, his left side striking the top of the seat. On January 25, 1936, he died. On February 24, 1936, plaintiff instituted this action. The commission awarded her $5,775, payable in weekly installments, less a credit of $350 paid the employee under the compromise settlement. From the judgment of the circuit court on appeal reversing the award of the commission plaintiff has appealed to this court.

Defendant in justification of the judgment of the circuit court contends that the employee's settlement with the defendant of his claim for compensation operates as a bar to plaintiff's claim. Defendant invokes the doctrine announced by the courts of this and other jurisdictions with respect to wrongful death statutes, to which he likens our Compensation Law. It is well-nigh universally held with respect to wrongful death statutes that a settlement by the wrongdoer with the injured person, in the absence of fraud or mistake, precludes a recovery by or on behalf of his dependents for the same wrongful act. Such is the holding of our own Supreme Court. The position taken by the courts generally is summed up in Strode v. St. Louis Transit Co., 197 Mo. 616, 95 S.W. 851, 856, 7 Ann. Cas. 1084, as follows: "Whether the right of action is a transmitted right or an original right; whether it be created by a survival statute or by a statute creating an independent right, the general consensus of opinion seems to be that the gist and foundation of the right in all cases is the wrongful act, and that for such wrongful act but one recovery should be had, and that if the deceased had received satisfaction in his lifetime, either by settlement and adjustment or by adjudication in the courts no further right of action existed." See, also, State ex rel. Thomas v. Daues, 314 Mo. 13, 283 S.W. 51, 45 A.L.R. 1466.

However, with respect to Workmen's Compensation Laws, the holding is well-nigh universal that settlement by the employee does not bar recovery by the dependents. The reason for the holding under Compensation Laws at variance with the holding under wrongful death statutes may be found, we think, in what was said by this court, speaking through Judge McCullen, in Elihinger v. Wolf House Furnishing Co., 230 Mo.App. 648, 72 S.W.2d 144, 148, as follows:

"It must be remembered that the Workmen's Compensation Law was enacted with the deliberate purpose on the part of the Legislature of changing drastically in many respects the legal relationships of parties involved in accidents arising out of and in the course of workingmen's employment, as those relationships existed under statutes and under the common law, prior to the Workmen's Compensation Act. That act was intended, with certain exceptions therein named, but not involved here, to be a complete code to cover the whole field in dealing with compensation for injuries and deaths resulting from accidents arising out of and in the course of such employment. It abolished old rights, duties, obligations, and remedies, and established new rights, duties, obligations, and remedies deemed to be necessary to the public welfare in the light of industrial and social economic experience. In undertaking to apply its many sections and subsections, we must, if we are to carry out the true intent and purpose of the Legislature, look to the act itself for guidance.

"Principles of law and deductions therefrom which might have been applicable under the old relationship of master and servant, as well as refinements of legal principles applicable to other relationships under the general law, both statutory and common, even though conveniently analogous, have no application in cases where, as in this case, the Workmen's Compensation Law provides a clear and unambiguous definition and prescribes a complete rule to govern in the field of its operation. We must, therefore, carefully avoid applying to cases within the Workmen's Compensation Law reasonings and principles which formerly might have been proper as bases of decision, but which, since the passage of that act, are no longer applicable to such cases.

"The law specifically provides that all of its provisions shall be liberally construed."

Our Compensation Law, section 3319, R. S.1929, Mo.St.Ann. § 3319, p. 8254, provides as follows:

"If the injury causes death, either with or without disability, the compensation therefor shall be as provided in this section. * * *

"The employer shall also pay to the total dependents of the employe a single total death benefit, the amount of which shall be determined in the following manner to-wit: * * * There shall, however, be deducted from such death benefit any compensation which may have been paid to the employe during his lifetime for the injury resulting in his death."

Inasmuch as the question here raised is one of first impression in this state, it may be well to examine some of the authorities in other jurisdictions.

In Lewis v. Connolly Contracting Co., 196 Minn. 108, 264 N.W. 581, 583, the court said:

"The statute is quite clear as to the right of the dependent in this case to receive compensation for the death of her husband, if the facts stated in the petition are found established. By the provision that there shall be deducted from such compensation any amount paid to the employee before his death, the statute quite clearly recognizes that compensation may be made to the employee during his lifetime, but that nevertheless, if such compensation does not equal the limit provided for such compensation to the dependent for death, which cannot exceed $7,500 by the law, there shall be paid to the dependent the compensation provided in the law.

"It may be urged that the fact that the Industrial Commission approved this settlement should be given effect as against this dependent. When the matter of a settlement was before the Industrial Commission, there was nothing before it except the question of compensation to the injured employee for his disability caused by the accident. There is not even a suggestion in the settlement stipulation, or in the order of the commission approving the settlement, that there was any thought or any intention to make the settlement cover a death loss. * * * To hold that the Industrial Commission, on the application of the insurer, the employer, and the injured workmen, to approve a settlement between them to which the dependent widow was not a party, of which she had no notice, and at a time when she had in no manner appeared before the commission, could deprive her of all right to compensation for the subsequent death of her husband, would be a startling disregard of the law that a stranger to a suit or proceeding cannot be deprived of his property or rights without notice and opportunity to be heard. It would further invest the commission with jurisdiction over a subject-matter and parties not before it at the time the settlement was made. The action of the Industrial Commission in refusing to hold the settlement a bar to the application of the widow sufficiently indicates that it claims no such power or jurisdiction."

In American Steel Foundries v. Industrial Commission, 361 Ill. 582, 198 N.E. 687, 690, 101 A.L.R. 1405, the court said:

"Two causes of action are created * * * one in favor of the employee for injuries received by him not resulting in death * * * and the other in favor of his dependents where the injuries subsequently result in death. * * * The cause of action for the employee's disability was personal to him and he could deal with it as he pleased, subject to the approval of the Industrial Commission; the other * * * was in favor of his dependents for loss of support, which was personal to the dependents and did not come into existence until his death from such injury. * * *

"The claim for compensation on behalf of the dependents is not derivative of the employee, but is an independent right of recovery for compensation created by the statute for the exclusive benefit of the dependents and over which the employee has no control and which he is powerless to release, waive, or extinguish."

In Texas Employers' Insurance Ass'n v. Morgan, Tex.Civ.App., 289 S.W. 75, 78, the court said:

"The Workmen's Compensation Law creates in favor of the injured employe a cause of action for total or partial disability, where...