Swader v. The Kansas Flour Mills Company and R. W. Hoffman
| Decision Date | 09 November 1918 |
| Docket Number | 21,661 |
| Citation | 176 P. 144,103 Kan. 703 |
| Parties | CORA J. SWADER, Appellant, v. THE KANSAS FLOUR MILLS COMPANY and R. W. HOFFMAN, Appellees |
| Court | Kansas Supreme Court |
Decided July, 1918.
Appeal from Dickinson district court; ROSWELL L. KING, judge. Opinion on petition to modify former
SYLLABUS BY THE COURT.
COMPENSATION ACT--Damages--Interpretation of Statute. In section 5 of the workmen's compensation act, section 5899 of the General Statutes of 1915, authorizing an injured workman to take proceedings against the person causing his injury and also against his employer, but providing that the workman shall not be entitled to recover both damages and compensation, the word "recover" means to "get," "procure," "obtain," and the like, and the provision concerns itself with actual payment of money as damages or compensation and is not limited to the recovery of judgments upon which nothing may be realized.
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, both of Wichita, and George W. Cox, of Chicago, Ill., for the appellees; Samuel A. Harper, of Chicago, Ill., of counsel.
OPINION ON PETITION TO MODIFY FORMER OPINION.
The appellant, who prevailed in this court, directs our attention to a point urged in her brief which was not covered by our opinion. (Swader v. Flour Mills Co., ante, p. 378.) She asked for an interpretation of the word "recover" in the text of section 5 of the compensation act, which reads--
"The workman may take proceedings against that person [the person causing the injury] 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." (Gen. Stat. 1915, § 5899.)
Appellant fears that in further proceedings in this case it may transpire that she might recover an uncollectible judgment "against the person causing the injury," and that under our original opinion she might be put to an election between a large uncollectible judgment against such person and the relatively small allowance made to her under the compensation act. No artificiality surrounds the word "recover" in this act. "Recover" here means "obtain," "procure," "get," and the like; to get damages or compensation; not a judgment, but the benefits of a...
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