Swader v. The Kansas Flour Mills Company and R. W. Hoffman

• Decision Date: 06 July 1918
• Docket Number: 21,661
• Parties: CORA J. SWADER, Appellant, v. THE KANSAS FLOUR MILLS COMPANY and R. W. HOFFMAN, Appellees
• Court: Kansas Supreme Court

176 P. 143

103 Kan. 378

CORA J. SWADER, Appellant, v. THE KANSAS FLOUR MILLS COMPANY and R. W. HOFFMAN, Appellees

No. 21,661

Supreme Court of Kansas

July 6, 1918

Decided July, 1918.

Appeal from Dickinson district court; ROSWELL L. KING, judge.

Reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. COMPENSATION ACT--Provisions for Compensation for Workman and for His Dependents--Act Constitutional. The title, "An act to provide compensation for workmen injured in certain hazardous industries," is broad enough to include compensation for dependents of a workman fatally injured, and the latter topic is germane and pertinent to the main subject covered by the act, and such act does not violate the constitutional provision forbidding the inclusion of more than one subject in one act of the legislature.

2. SAME--Death--Action for Compensation against Employer--Action for Damages against Third Party--Estoppel. Section 5 of the workmen's compensation act gives an injured employee a statutory action or proceeding against his employer for compensation, and also for damages against a wrong-doing third party causing his injuries; and where the person entitled to maintain such statutory action is not estopped by her acceptance of compensation already provided for her, nor by her participation in arbitration proceedings to determine her compensation, nor by other acts constituting ratification or acquiescence, she may prosecute her action against both the employer and the wrong-doing third party; and she is not required to choose between the compensation allowed, or which may be allowed, and the damages which she may recover, until her action is tried and determined, but she is not entitled to recover both damages and compensation.

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

G. W. Hurd, Arthur Hurd, Bruce C. Hurd, all of Abilene, T. A. Noftzger, George Gardner, and George W. Cox, all of Wichita, for the appellees; Samuel A. Harper, of Chicago, Ill., of counsel.

OPINION

DAWSON, J.:

The plaintiff brought this action against the defendants for the wrongful death of her husband, who was killed by a fall through a false flooring placed near the top of a tall grain bin. The deceased was an employee of the defendant company, and the other defendant, Hoffman, was the company's manager.

The defendant company's answer pleaded that both the rights and liabilities of itself and the decedent were those prescribed by the workmen's compensation act; that pursuant thereto an arbitration had been made; that the defendant corporation had been found liable to plaintiff and her children in the sum of $ 2,297.16, payable in weekly installments of $ 20.15; that a bond had been exacted from the defendant corporation to secure the payment thereof, and that in compliance therewith it had been regularly paying such weekly compensation to the clerk of the court.

The defendant Hoffman's answer was to the same general effect; he denied the charge of negligence against him individually, and alleged that plaintiff had refused to agree to the arbitration, but that it had been duly made and adjudicated.

Plaintiff's reply admitted that the milling corporation was within the provisions of the compensation act, but alleged that she had never consented thereto and had not accepted the proceeds thereof, and--

"That the plaintiff was not bound by the decedent's failure to file an election not to come within the provisions of the compensation law and that the decedent was without power or authority to restrict the liability of the company to the provisions of said law and exclude plaintiff and her minor children from their other remedies, and that in so far as the workmen's compensation law attempted to restrict the company's liability as to the dependents of the workman, it was in violation of the state and federal constitution."

Replying to the answer of defendant Hoffman, plaintiff alleged--

"That even if said workmen's compensation law...