U.S. Fidelity & Guaranty Co. v. Goodson

• Decision Date: 03 October 1932
• Citation: 54 S.W.2d 754,227 Mo.App. 456
• Parties: UNITED STATES FIDELITY AND GUARANTY COMPANY, RESPONDENT, v. EUGENE GOODSON, APPELLANT
• Court: Kansas Court of Appeals

54 S.W.2d 754

227 Mo.App. 456

UNITED STATES FIDELITY AND GUARANTY COMPANY, RESPONDENT, v. EUGENE GOODSON, APPELLANT

Court of Appeals of Missouri, Kansas City

October 3, 1932

Appeal from Circuit Court of Jackson County.--Hon. Allen C Southern, Judge.

AFFIRMED.

Judgment affirmed.

Paul C Sprinkle and Ingraham D. Hook for respondent.

Gilbert J. Clevidence for appellant.

CAMPBELL C. Boyer, C., concurs.

OPINION

CAMPBELL, C.

Plaintiff issued to Mayer Brothers Company a policy of liability insurance covering claims based upon the workmen's compensation law of Nebraska. On February 27, 1924, (policy was then in force), George W. Robinson, an employee of insured, while on his way to work, was injured in consequence of the alleged negligence of Eugene Goodson, defendant herein. On April 25, 1924, Eugene Goodson and his insurance carrier, American Casualty Company, paid the employee Robinson the sum of $ 750 in full settlement of his claim against them for his said injuries. Thereafter the employee Robinson filed claim with the compensation commission of Nebraska against Mayer Brothers Company, employer, and plaintiff herein as insurer, seeking an award on account of his injuries. The claim was heard, resulting in an award in favor of the claimant in the sum of $ 362, which was paid by plaintiff. The insured assigned to plaintiff its right against defendant on account of the award. Thereafter plaintiff brought this action to recover from defendant the amount of the award. The cause was tried to the court, jury waived, resulting in finding and judgment for the plaintiff as prayed. Defendant appeals.

At the close of plaintiff's evidence and again at the close of the whole case, the defendant requested the court to direct verdict in its favor. The requests were denied. No other declarations of law were asked or given. It follows that if there was substantial evidence, though slight, to support the judgment, we will not interfere. [Kelvinator St. Louis, Inc., v. Schader, 39 S.W.2d 385.]

Plaintiff claims that upon payment of the award and the execution of the assignment it was subrogated to the right of Robinson against the defendant herein by virtue of the provisions of Section 3041 compiled statutes of Nebraska, 1922, which is as follows:

"Where a third person is liable to the employee or to the dependents for the injury or death, the employer shall be subrogated to the right of the employee or to the dependents against such third person and recovery by such employer shall not be limited to the amount paid as compensation to such employee or to his dependents, but such employer may recover any amount as such employee would have been entitled to recover . . ."

The defendant argues that although plaintiff was subrogated to the right of the employee, Robinson, it had no cause of action against the defendant, Goodson, unless Robinson had a cause of action against him. The statute says that where a third person is liable for an injury to an employee, the employer against whom compensation has been awarded shall be subrogated to the right of the employee against the third person, and that the employer may recover against the third person "any amount as such employee would have been entitled to recover." Manifestly, the employer cannot have any other or greater right than the employee. It follows that unless the employee, Robinson, had a cause of action against the defendant, Goodson, the plaintiff has no cause of action against him.

It is not controverted that Robinson sustained injury. In event defendant's negligence was the proximate cause of such injury, Robinson had a cause of action against him.

The record discloses that Robinson was riding a bicycle northward on a public street in the city of Lincoln, Nebraska; that defendant, driving an automobile, overtook him, turned to Robinson's left and attempted to pass; that while passing the bicycle the rear fender or bumper of the automobile struck the bicycle, in consequence of which Robinson was severely injured.

Mr. Robinson testified:

"Q. And he ran into you as he turned to go around you? A. Yes, sir. I think he turned too short the only way I can make it out, because it was the hind end of his car, the hind fender--or I suppose maybe he had a bumper--that just seemed to catch my wheel and just threw me right around sideways."

The defendant testified that as he approached the bicycle he altered his course by turning to the left; that he saw plaintiff as he passed by him. "It was a foggy morning and snow on the ground and any automobile driver is a little leary of a bicycle in front of him, and I honked the horn several times to be sure that the man knew I was going to pass him, and I then turned my car over into the street car tracks to pass the bicycle, and my judgment was that he must have been five or six feet at least away from the car. Miss Katherine was...