Whitney v. Louisville & N.R. Co.

• Decision Date: 14 January 1944
• Citation: 177 S.W.2d 139,296 Ky. 381
• Parties: WHITNEY v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

177 S.W.2d 139

296 Ky. 381

WHITNEY v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky

January 14, 1944

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division; B. H. Farnsley, Judge.

Action by A. M. Whitney, doing business as the Whitney Transfer Company, against the Louisville & Nashville Railroad Company to recover the balance of a compensation award which plaintiff was required to pay, on the theory that the defendant was responsible for the compensable loss. From a judgment for defendant, plaintiff appeals.

Affirmed.

Davis, Boehl, Viser & Marcus, of Louisville, for appellant.

Woodward Dawson & Hobson, of Louisville, for appellee.

STANLEY Commissioner.

A train of the appellee Railroad Company struck a truck belonging to the appellant, A. M. Whitney, doing business as Whitney Transfer Company, at Brandenburg, in November, 1936. We reversed a judgment rendered on a directed verdict for the defendant in an action by Whitney against the Railroad Company for the value of the truck. Whitney v. Louisville & N. Railroad Company, 282 Ky. 392, 138 S.W.2d 503. The Railroad Company made a compromise settlement of a claim by the administratrix of the estate of the driver of the truck for his death, under which it paid her $2,475 and agreed to pay $1,600 additional in the event she failed to recover for herself as widow and for her child the maximum of $4,000 plus $75 burial expenses, from his employer, Whitney, under the provisions of the Workmen's Compensation Act, KRS 342.001 et seq. The Webster Circuit Court rendered judgment for the full amount of compensation against Whitney because there was no admission of liability by the Railroad Company for the death of the employee nor any judgment of that effect. We thought it should be assumed because of the settlement that there was legal liability on its part and that the award should be credited by the amount paid by the Railroad Company, $2,475, and reversed the judgment. Whitney Transfer Company v. McFarland, 283 Ky. 200, 138 S.W.2d 972.

This action was brought by Whitney against the Railroad Company to recover the balance of $1,600 under its right to have a third party, who was responsible for the compensable loss, bear the burden. Sec. 4890, Ky.Stats., now KRS 342.055. The trial was confined to issues of the Railroad Company's negligence and of the deceased employee's contributory negligence. A verdict and judgment were rendered in favor of the Railroad Company. On this appeal by Whitney it is conceded that the conflict in the evidence authorized a submission of the case and sustains the verdict. A reversal of the judgment is asked upon the grounds of error (1) in rejecting tendered evidence of the settlement made by the Railroad Company with the administratrix, and (2) in refusing to excuse a juror whose qualification was challenged for cause.

It is contended that proof of the settlement itself and of the defendant's answer setting up the settlement was competent as admissions of responsibility. The appellant submits that while proof of an offer of compromise is inadmissible, a consummated settlement is admissible since it cannot prejudice or mislead the jury as an offer might do. Under some circumstances the distinction might be drawn (31 C.J.S., Evidence, § 290, p. 1050; Jones, Commentaries on Evidence, Sec. 1052), but the reason for rejecting offer of compromise remains under conditions like those appearing in this case where the issue was liability or non-liability for the accident, and the settlement agreement contained no statement of fact constituting an admission against interest. We have ruled in accordance with the basic principles of judicial policy that where there are two causes of action arising from the same act or accident a compromise with one party may not be proved in the action of the other. Powers' Adm'r v. Wiley, 241 Ky. 645, 44 S.W.2d 591.

[2] The appellant sees a distinction here because this case involves the death of but one person and there is in fact only one cause of action. It is generally held that the usual provision in workmen's compensation statutes for the recovery by the employer or his insurance carrier from a third person liable for an employee's injury or death of compensation paid or payable does not...