Halverhout v. Southwestern Milling Co.

97 Kan. 484 | Kan. | 1916

The opinion of the court was delivered by

WEST, J.:

The defendant appeals from a lump-sum judgment under the workmen’s compensation act.

Plaintiff was injured on June 12, 1914, while at work for the defendant in its mill. He testified that a doctor attended him beforé he was removed from the mill, that six or seven days after the injury he called up the mill and stated to the timekeeper that he wanted a settlement for his foot and wanted a doctor sent out, and was referred by the timekeeper to the company’s main office. On calling up the main office he was referred to a firm of attorneys, and in a day or two he called on these attorneys and then a doctor came. On or about July 15 he employed counsel and went with them to the office of the defendant’s attorneys for the purpose of obtaining a-settlement, and they there talked of the injury. Discussion was had as to the method of settlement, either by a certain sum by the week or by a lump sum, and some dissatisfaction with the workmen’s compensation act was expressed by one of the plaintiff’s attorneys. Shortly afterwards the action was begun, resulting in a judgment for plaintiff in the sum of $1027.87. The answer, after certain admissions, including the injury of the plaintiff, but denying the extent of such injuries or the consequent incapacity to be as great as alleged, averred that the plaintiff was entitled to compensation beginning at the end of the second week of disability, but that he did not notify the defendant of his accident or make any claim for compensation, but that the defendant on or about the 21st of July and prior to the filing of the suit notified the plaintiff that the defendant was ready and willing to pay such compensation then due and to continue the same as provided for by the statute during the time he should be disabled, which offer was by the plaintiff refused; that the defendant had at all times been ready and willing to pay under the terms and provisions of the act, and that the plaintiff was not entitled to maintain the action until he had made some effort to settle with the defendant.

The failure to give a written notice within ten days after the injuries was expressly waived when the case was reached for trial.-

A motion was made to dismiss on the opening statement of plaintiff’s attorney because no claim for compensation had been made and no effort to agree with the defendant upon the amount of compensation. The question was raised in the ways already mentioned, and also by demurrer to plaintiff’s evidence and by request for a peremptory instruction. In view of the knowledge which the defendant, through its various representatives, had of the injury and the desire of the plaintiff to be paid therefor, the claim required by section 6 of chapter 216 of the Laws of 1913 to be made within three months after the accident was rendered unnecessary within the principle announced in Roberts v. Packing Co., 95 Kan. 723, 149 Pac. 413, and Ackerson v. Zinc Co., 96 Kan. 781, 153 Pac. 530.

An argument is made against the propriety or legality of a lump-sum judgment, but the question has already been settled and disposed of. (Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244; Cain v. Zinc Co., 94 Kan. 679, 148 Pac. 251; Roberts v. Packing Co., 95 Kan. 723, 728, 149 Pac. 413; McCracken v. Bridge Co., 96 Kan. 353, 153 Pac. 525.)

Certain complaints are made touching instructions, the admission of evidence and the amount of the verdict, but we find nothing substantially prejudicial in the matters thus complained of.

The principal contention is that the suit could not be maintained until after an effort for settlement on the part of the plaintiff had failed. Section 36 of chapter 218 of the Laws of 1911 provides that “A workman’s right to compensation under this act, may, in default of agreement or arbitration, be determined and enforced by action in any court of competent jurisdiction.” It is forcibly urged that the purpose and policy of the act were to avoid lawsuits and substitute settlement instead (2 M. A. L. 471), and there is much in the language of the statute and the arrangement of its sections to lead to this conclusion. But when the precise matter came to be treated by the legislature the language just quoted was employed, and this means practically the same as if instead of the phrase “in default of agreement or arbitration” the words “in the absence or omission of an agreement or arbitration” had been used. (2 Words & Phrases, p. 1929; 13 Cyc. 759.) While the expression frequently means failure to perform a duty or obligation, other definitions are also given. “Default. A failing or failure; omission of that which ought to be done.” (Webster’s New Int. Diet. 1910.) “In default of, owing to lack or failure of.” (Funk & Wagnalls’ New Stand, Diet. 1913.) “Omission; neglect or failure; . . . default of- issue: Failure to have living children or descendants at a given time or fixed point.” (Black’s Law Diet., 2d. ed.)

Nothing can be found in the entire statute which requires that such a settlement be attempted by the plaintiff as a condition precedent to maintaining an action at law, and the courts can not add a requirement either purposely or carelessly omitted by the legislature. This question was decided in Ackerson v. Zinc Co., 96 Kan. 781, 153 Pac. 530, which decision is now approved and followed.

The judgment is affirmed.