Tucker v. Nason
| Decision Date | 14 January 1958 |
| Docket Number | No. 49357,49357 |
| Citation | 249 Iowa 496,87 N.W.2d 547 |
| Parties | Eldon TUCKER, Plaintiff-Appellant, v. Harold E. NASON, Jr., and Chloe C. Nason, and Tolerton & Warfield, a corporation, Defendants, Newark Insurance Company, Lien Claimant-Appellee. |
| Court | Iowa Supreme Court |
Gill & Dunkle and Whicher & Davis, Sioux City, for plaintiff-appellant.
Shull, Marshall, Mayne, Marks & Vizintos, Sioux City, for lien claimant-appellee.
On January 27, 1956 Eldon Tucker, while working for Sioux City Bottling Works, delivered an order of soft drinks at one of the stores of Tolerton & Warfield in Sioux City. The entrance to the rear of the store for delivery purposes was a slanting concrete ramp. Tucker stepped on a lettuce leaf while carrying a load of merchandise down the ramp and fell. He was seriously injured. He sued Tolerton & Warfield and the jury returned a verdict in his favor for $18,000. The judgment rendered on the verdict has been affirmed by this court.
Newark Insurance Company was the workman's compensation carrier for Sioux City Bottling Works and paid plaintiff $5,138.94 for hospital and medical expense, loss of time, and settlement for 20% permanent disability.
In accordance with Section 85.22, 1954 Code, I.C.A. Newark Insurance Company filed notice of lien in the action against Tolerton & Warfield as to amount paid Tucker.
After his injury plaintiff retained attorneys to assist him in connection with his workmen's compensation claim and to prosecute an action for damages against the third-party tort-feasor. As to the damage suit there was a written agreement between plaintiff and his attorneys for a contingent fee of one-third.
Plaintiff and his attorneys filed resistance to application for distribution of proceeds of judgment, claiming that in such distribution there should be allocated and paid to plaintiff one-third of $5,138.94 on account of attorney's fees paid by him in securing the judgment against Tolerton & Warfield.
The trial court decided that under Workmen's Compensation Act there was no basis for deduction of attorney's fees, and the carrier was entitled to full amount paid plaintiff. Plaintiff appealed.
The only error assigned is that the court should have allocated one-third of amount of compensation payment to plaintiff.
Section 85.22 provides: Subsection (1) 'If compensation is paid the employee * * *, the employer by whom the same was paid, or his insurer which paid it, shall be indemnified out of the recovery of damages to the extent of the payment so made, with legal interest, and shall have a lien on the claim for such recovery and the judgment thereon * * *.' Subsection (2) 'In case the employee fails to bring such action within ninety days * * *, then the employer or his insurer shall be subrogated to the rights of the employee to maintain the action against such third party, and may recover damages for the injury to the same extent that the employee might. * * *.' (Emphasis ours.)
The section further provides:
Appellant's argument is based on two grounds. The first is that we have held on several occasions the Workmen's Compensation Act must be given a broad and liberal construction in favor of the employee. As a general principle this is correct. However, we have never liberalized the statute sufficiently to add a new provision and a different meaning to the Act.
The other contention is that if an attorney renders services in recovering or preserving a fund in which a number of persons are interested he may be allowed compensation out of the whole fund. As a general principle of law we have so held in State ex rel. Weede v. Bechtel, 244 Iowa 785, 56 N.W.2d 173; Lovrien v. Fitzgerald, 245 Iowa 1325, 66 N.W.2d 458. The theory of law as outlined in cited and similar cases is correct. However, these cases are based on general legal principles, and not on a specific remedy created by statute, such as Workmen's Compensation Act. Since there is no basis in the Act for appellant's contention, this theory is not applicable to the case at bar.
I. We have given direct consideration to the question involved in this case in one previous case, and incidental consideration in another case. Roessler v. Chain Grocery & Meat Co., Iowa, 196 N.W. 1020; Southern Surety Co. v. Chicago, St. P., M. & O. Ry. Co., 187 Iowa 357, 174 N.W. 329.
The Roessler case concerns a butcher who was working at his meat counter when the building collapsed, causing his death. Administrator of his estate sued the owner of the building and recovered $3,000. In above cited case Mrs. Roessler and a stepson filed claim with Workmen's Compensation Commissioner for $3,000, representing the maximum compensation for three hundred weeks at ten dollars per week. On appeal from Commissioner to District Court the court held claimant was not entitled to recover compensation because the administrator of estate of deceased had recovered an amount equal to the compensation. The analogy with the case at bar appears on appeal where appellants claim some expenses such as attorney's fees, etc., were deducted from the $3,000 recovery, and they were entitled to recover these items from employer or compensation carrier. This court affirmed the District Court and held that since the statute provided '* * * the compensation shall be reduced by the amount of damages 'recovered" the full amount of $3,000 recovered should be considered as offsetting the $3,000 of compensation. Appellant contends that in view of the changes in Workmen's Compensation Act since 1924, when this case was decided, the case does not form a precedent for the case at bar. The intervening amendments have adopted a new wording, but make no change as to the legal question involved in this case. The original Act § 2477-m6, Code Supp.1913, provides: '* * * The amount of the compensation to which he is entitled under this act shall be reduced by the amount of damages recovered.' Chapter 85.22(1) 1954 Code, I.C.A., provides: 'If compensation is paid the employee * * *, the employer by whom the same was paid, or his insurer which paid it, shall be indemnified out of the recovery of damages to the extent of the payment so made * * *'. (Emphasis ours.)
Southern Surety Co. v. Chicago, St. P., M. & O. Ry. Co., supra, was an action by the compensation carrier against third-party tort-feasor for recovery of $572.33 paid by plaintiff to Whitney, the employee. Whitney had previously sued the railroad company and secured judgment for $2,300. The trial court sustained demurrer, and this court affirmed, holding that since Whitney had recovered from the railroad company the surety company was not entitled to recover from the same company. Somewhat incidentally, but expressing the same theory as involved herein, the court said: [187 Iowa 357, 174 N.W. 330.] (Emphasis ours.)
Appellant's position is, in its effect, that by judicial pronouncement we should add to the...
To continue reading
Request your trial
-
Bloomer v. Liberty Mutual Insurance Company
...Co., 111 Ariz. 259, 527 P.2d 1091 (1974); Commercial Union Ins. Co. v. Scott, 116 Ga.App. 633, 158 S.E.2d 295 (1967); Tucker v. Nason, 249 Iowa 496, 87 N.W.2d 547 (1958), with Quinn v. State, 15 Cal.3d 162, 124 Cal.Rptr. 1, 539 P.2d 761 (1975); Security Ins. Co. of Hartford v. Norris, 439 S......
-
Death of Peterkin, Matter of
... ... (absent statutory authorization, a court may not shift the burden of the employee's litigation expenses to the employer's insurance carrier); Tucker v. Nason, 249 Iowa 496, 87 ... N.W.2d 547 (1958) (same); Meehan's Case, 316 Mass. 522, 56 N.E.2d 23 (1944) (same); Becker v. Huss Co., 43 N.Y.2d ... ...
-
County Workers Compensation Pool v. Davis
...there exists a contrary line of authority, Commercial Union Ins. Co. v. Scott, 116 Ga.App. 633, 158 S.E.2d 295 (1967); Tucker v. Nason, 249 Iowa 496, 87 N.W.2d 547 (1958); Meehan's Case, 316 Mass. 522, 56 N.E.2d 23 (1944); Becker v. Huss Co., Inc., 43 N.Y.2d 527, 373 N.E.2d 1205, 402 N.Y.S.......
-
Hofer v. Bituminous Cas. Corp.
...against some person other than the employer. We so held in Price v. King, 255 Iowa 314, 319, 122 N.W.2d 318. See also Tucker v. Nason, 249 Iowa 496, 500, 87 N.W.2d 547. And in Southern Surety Co. of New York v. Chicago, R.I. & P.R. Co., 215 Iowa 525, 531, 245 N.W. 864, 867, this court said:......