93 Kan. 364 | Kan. | 1914
This was an action by E. F. Mc-Eoberts, a former employee of the National Zinc Company, to recover from that company for injuries suffered by him in an accident that occurred in the zinc plant which he alleged was the result of a defective appliance. His petition, which contained two counts, set forth, first, the circumstances under which he was injured, the extent of his injuries, the permanence in character of the injuries, the wages which he had been receiving, and then asked for compensation under the workmen’s compensation law. (Laws 1911, oh. 218, as amended by Laws 1913, ch. 216.) In the second count he sought a recovery for .the same inj ury as a common-law liability, basing his right to recover upon pain and suffering, which he alleged was the result of the company’s negligence and which he must suffer during his life, and also for permanent disfigurement of his hand. He asked judgment for $2500 on the first count as compensation for loss of labor and wages for the period of eight years, and judgment under the common-law count for $2500 as damages for physical and mental pain and the permanent disfigurement of his hand. The company answered by a general denial, and averred that McEoberts’ injuries were the result of his own negligence and the result of the usual risks and hazards of the employment which he had assumed. Before going to trial the company objected to the introduction of any evidence because of inconsistencies of the two counts of the petition, one being for compensation under the compensation law and the other a common-law liability for the same injury, and insisted that the plaintiff should be compelled to elect under which count he would proceed. An objection was also made to the impanelling of a jury because McEoberts had failed to file, previous to trial, a written notice that a trial by jury would be demanded, as the
At the trial it was admitted that both parties had been automatically brought within the operation of the workmen’s compensation law because of the fact that neither had elected not to come under the provisions of that law. The company insisted at the trial, and is insisting on this appeal, that the remedy provided by the compensation law is exclusive as to employer and employee who have elected to come within its provisions. In the enactment of the compensation law the legislature recognized that the common-law remedies for injuries sustained in certain hazardous industries were inadequate, unscientific and unjust, and therefore a substitute was provided by which a more equitable adjustment of such loss could be made
It is contended by the appellee that the count of the petition under which the trial was had set forth facts sufficient to warrant the recovery of compensation, that the evidence produced showed that he was entitled to compensation in an amount equal to the damages awarded by the jury and that if not entitled to that sum he was, at least, entitled to the minimum compensation of $3 per week for eight years, and he now offers to submit to a reduction of the judgment to a minimum amount of $1248 in order to avoid the trouble
The judgment will, therefore, be reversed and the cause remanded for a new trial on that count of the petition which the trial court reserved for future consideration.