Williams v. Brown

• Decision Date: 17 October 1924
• Citation: 205 Ky. 74
• Parties: Williams v. Brown.
• Court: Kentucky Court of Appeals

205 Ky. 74

Williams v. Brown.

Court of Appeals of Kentucky.

Decided October 17, 1924.

Appeal from Jefferson Circuit Court (Common Pleas, Third Division).

DAVIES, PAGE & DOWNING for appellant.

HUMPHREY, CRAWFORD & MIDDLETON for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE SAMPSON — Affirming.

Appellant, Perry Williams, was in the employ of the Louisville Rendering Company in July, 1920, when he suffered an injury to his person through the negligence of appellee J. T. S. Brown in driving his automobile against a taut rope drawn around an excavation which Williams was making for his employer. Brown was not connected with the employment of Williams in any way but comes within section 4890, Kentucky Statutes, which makes "a negligent third party" liable for an injury to an employe who has accepted the terms of the workmen's compensation law, and provides the remedies which the injured employe may have.

After his injury Williams applied to the workmen's compensation board for compensation and was awarded compensation which, when collected, amounted to $640.05. About the same time he commenced an action for damages for personal injury against appellee, J. T. S. Brown, for $5,000.00. In his answer to the petition appellee, Brown, in addition to traversing the material averments of that pleading, averred that appellant Williams had sought and obtained compensation from his employer, the Louisville Rendering Company, amounting to $640.05, that in case Williams should obtain a judgment against Brown in the action pending that the same should be credited by the amount obtained by Williams through compensation under the provisions of section 4890, Kentucky Statutes.

Issue being joined a trial resulted in a verdict for $1,000.00 in favor of Williams, against Brown, for personal injury. No evidence whatever was heard upon the question of compensation of Williams by his employer, its amount being fixed by the pleadings. After verdict and judgment appellee Brown moved the court to credit the amount of the judgment, $1,000.00, with the total amount of compensation received by Williams from his employer, $640.05. After hearing the trial court entered the following judgment:

"It is ordered by the court that the defendant's motion to credit the sum of $640.05 upon any judgment that may be entered upon the verdict of the jury of $1,000.00 in favor of the plaintiff against the defendant be, and the same is hereby sustained, and it is accordingly adjudged by the court that the plaintiff recover of the defendant the sum of $1,000.00 subject to a credit of $640.05, and plaintiff's cost herein, and that the plaintiff may have execution against the defendant for $359.95 and for plaintiff's cost herein expended; to the allowance of which credit the plaintiff excepts."

From this judgment Williams appeals, insisting that a negligent third party is not entitled to be credited upon a judgment rendered against him, with money paid the injured party by way of compensation. In support of this general insistence appellant says (1) to allow the appellee credit for money paid appellant for compensation would be against public policy; (2) section 4890, Kentucky Statutes, was enacted solely for the benefit of the employer and not for the benefit of a negligent third party; (3) to allow credit upon the judgment rendered against appellee would be relieving a negligent third party from liability for a wrongful act; (4) compensation paid an injured employe is paid by reason of a contract previously made between the employer and employe, while the recovery against appellee was by reason of a tort committed by appellee, and consequently the payment by both the employer and negligent third party is not payment by both for a wrong.

Both appellant and appellee rely upon two opinions from this court, Book v. City of Henderson, 176 Ky. 785, and Henderson Tel. & Tel. Co. v. Owensboro Tel. & Tel. Co., 192 Ky. 322. Section 4890, Kentucky Statutes, reads:

"Whenever an injury for which compensation is payable under this act shall have been sustained, under circumstances creating in...