161 P. 513 | Nev. | 1916
Lead Opinion
By the Court,
This is an action for damages for personal injuries sustained by appellant while employed in respondent’s mine, commonly known and called the "Mason Valley Mine,” in the county of Lyon, State of Nevada.
As a defense to appellant’s alleged cause of action, respondent in its answer alleged that a compromise and settlement of any claim of appellant against respondent, on account of said injuries, was made between appellant and respondent in the city of San Francisco, State of California, on the 11th day of December, 1912, and that respondent then and there paid to appellant the sum of $2,175 in full settlement of said claim; that appellant, in consideration of such payment, and for other valuable consideration, made and delivered to the defendant a release of all liability by reason or on account of the said injuries and that said release was duly acknowledged by said plaintiff before a notary public in and for the city and county of San Francisco, and was and is in words and figures as follows, to wit:
" San Francisco, December 11,1912.
"Received of Mason Valley Mines Company the sum of two thousand one hundred seventy-five dollars ($2,175)*148 in consideration whereof I hereby release and forever discharge the said Mason Valley Mines Company, its successors and assigns, from any or all claims and demands, actions and causes of action, and liability of every kind and nature whatsoever for, upon or on account of or by reason of any loss, damage, injury or liability sustained or which may be sustained by me in consequence of injuries received by me, the undersigned, William 0. Leach, on or about the 3d day of March, 1912, in the Mason Valley Company’s mines in the State of Nevada, resulting in loss of limb, and eyesight and other injuries. W. 0. Leach.”
Upon the conclusion of the taking of testimony at the trial, the court instructed the jury to return a verdict in favor of the defendant. This instruction constitutes one of the 101 assignments of error in this case.
The only question necessary to consider in this case, we think, is whether appellant is bound by the compromise and settlement of his claim for damages made by him with respondent in the State of California. There is no substantial conflict in the evidence relative to the making of the settlement in question. It was a result of negotiations covering a considerable period of time, including correspondence in which the precise terms of the final agreement were discussed. * There is no contention or room for contention of any fraud upon the part of respondent in the procurement of the settlement with and the obtaining of the written release from appellant. The amount paid by respondent to appellant was approximately and possibly more than he could have received, had he elected to have settled with respondent under the provisions of an act of the legislature of this state, approved March 24, 1911 (Stats. 1911, p. 362), entitled:
"An act determining certain employments and industries to be especially dangerous, establishing a system of compensation for accidents to workmen engaged therein, requiring employers or contractors carrying on such industries to pay compensation, entitling injured workmen or their legal representatives to receive such*149 compensation, fixing the ajnount of same and the manner of payment, fixing the time within which claims for compensation must be made, prescribing the manner and method of giving notice to such owner or contractor of such accident, providing for the manner of settling disputed claims by arbitration, providing for their final determination by courts of justice, and granting to courts of justice certain additional powers in proceedings under this act, determining what persons shall be liable under this act. ”
Section 11 of said act provides:
"Nothing in this act contained shall be held or deemed to require any workman or his personal representatives to proceed under its terms and provisions for the recovery of compensation of damages for death or accidental injury. But if the workman or his personal representatives shall so elect, he or they may disregard the provisions of this act and may pursue any other remedy at law for the recovery of such compensation of damages for or on account of such death or injury. The right of election or choice of remedies shall be exercised solely by such workman or his representatives.”
It is the contention of appellant that the settlement made by him with respondent in the State of California cannot be interposed as a complete defense to his action by reason of Bev. Laws, 5652, which provides:
"That no contract of employment, insurance, relief benefit, or indemnity for injury or death, entered into by or on behalf of any employee, nor the acceptance of any insurance, relief benefit, or indemnity by the person entitled thereto, shall constitute any bar or defense to any action brought to recover damages for personal injuries to, or death of such employee; provided, however, that upon the trial of such action the defendant may set off therein any sum it has contributed toward any such insurance, relief benefit, or indemnity that may have been paid to the person entitled thereto.”
This provision of our statutes was sustained in Lawson v. Halifax-Tonopah M. Co., 36 Nev. 591.
As appears from the record in this case, appellant was at all times a citizen of the State of California. At the time the contract and settlement was made, he was a resident and citizen of that state. Such settlement was in accordance with the laws of the State of California and was- a complete bar to any action which might be instituted in that state to recover damages for such injuries. Such settlement in the state of his residence was a complete extinguishment of his chose in action. When he came to the State of Nevada, after such settlement, he brought nothing with him that could form the basis of an action, because he had finally settled his cause of action in the state of his residence. (Oglesby v. Attrill, 105 U. S. 611; Ogden v. Saunders, 12 Wheat. 369; 8 Cyc. 516; 36 Cyc. 829.)
It is unnecessary to consider other assignments of error.
The judgment is affirmed.
Rehearing
Petition for rehearing denied.
