99 Kan. 103 | Kan. | 1916
Plaintiff brought this action to recover damages in the sum of $3000 for injuries alleged to have been caused by the defendant’s negligence at a time when he was in its employ. Almost a year later an amended petition was filed which attempted to set up a cause of action under the compensation law. The prayer for relief was amended to ask compensation in the sum of $2496. The amended petition alleged that the accident was caused by the negligent act of one of defendant’s agents, and that the injury sustained caused the plaintiff mental pain and anguish; it asked that $100 be allowed for medical expenses and also asked for a reasonable attorney’s fee. The court overruled a motion to strike out these allegations. .A demurrer to the petition was also overruled, and the action proceeded to trial as a compensation case. In the opening statement it was admitted that defendant as well as plaintiff were subject to the provisions of the compensation act. The petition alleged that no written notice of the injuries had been given, but that defendant had actual notice thereof a few minutes after the injury was received and therefore was not prejudiced by plaintiff’s failure to give notice. The defendant objected to the introduction of any evidence and that was overruled. The jury returned a verdict in plaintiff’s favor for $1257. Judgment was entered upon the verdict and defendant appeals.
The plaintiff was injured on the afternoon of the same day he began working for defendant. He was to receive $2 per day for ten hours work. He was engaged in repairing switches in an overhead tram or cage, which hung suspended from a track. A switch immediately behind the cage was left open and as the cage started back one end dropped down' and plaintiff fell a distance of about fourteen feet, striking on a railroad track. He claimed that an eight-pound sledge hammer fell from the cage and struck him on the breast. He was given first aid treatment by Doctor Johnson, defendant’s house surgeon at the plant. Several weeks after his injury he went to see the superintendent of the defendant and asked what was going to be done about his injury. The superintendent sent him to see Doctor Johnson, who had charge of such matters.
The first and principal complaint of the defendant is that plaintiff should not be entitled to recovery because he refused to accept payment or settlement under the compensation law, but demanded more than compensation for incapacity to labor. It is said that the defendant was a,nxious and willing to abide by the compensation act and the plaintiff refused to be. bound by it; that he not only refused to accept the offer to pay him what the law allowed, but brought an action to recover damages for injuries sustained by the alleged negligence of the defendant, wholly ignoring the compensation act, which defines the rights and obligations of both parties. In this connection defendant insists that it was carrying out in good faith its established policy to abide by the provisions of the compensation act, and directs our attention to the records of the state, showing that it was among the first and largest employers of labor to come under the provisions of the act, and that it has never sought by litigation to defeat an employee claiming under the law. It is insisted that the case would not have been brought if the plaintiff had been willing to abide by the law and accept compensation according to its terms.
We fully agree with- the contention of the defendant, that one of the purposes of the compensation act was to do away with litigation between employer and employee in adjusting compensation for injuries received in the course of employment, and that the law fixes the scale of compensation for permanent as well as partial disability, leaving the only question to be determined the extent of incapacity resulting from the injury. The wise provisions of the law have in many cases not been carried out, and the responsibility for the failure of the law in this respect is attributable sometimes to an
The motions directed against the amended petition were well founded, and the court might have required plaintiff to recast the entire pleading. The averments as to negligence, mental pain and anguish, medical expenses and attorneys’ fees had no appropriate place in the petition. (McRoberts v. Zinc Co., 93 Kan. 364, 144 Pac. 247.) The case, however, was tried out as a compensation case; no evidence was admitted in proof of the extraneous matters, and the court charged the jury not to consider them.
Section 22 of the compensation law (Laws 1911, ch. 218, Laws 1913, ch. 216, § 6) requires that an injured employee shall present a claim for compensation within three months of the day he was injured, and expressly declares that the failure so to do shall be a bar. The evidence shows a full compliance with this provision. The claim is not required to be in writing. An oral demand is sufficient under the language of the statute. (Gailey v. Manufacturing Co., 98 Kan. 53, 157 Pac. 431; Knoll v. City of Salina, 98 Kan. 428, 157 Pac. 1167.) The plaintiff went to the superintendent of defendant and asked what was to be done about paying him. He was referred to Doctor Johnson, to whom he presented a claim. The difficulty arises over the failure to allege Jn his petition that he had presented a claim. Since that was a condition precedent, he should have pleaded compliance. It would not do,
The petition fails to disclose any facts upon which the average weekly earnings of the plaintiff could be computed. The statute provides that the average earnings are to be computed on the average rate per week which the workman was being remunerated for the fifty-two weeks prior to the accident, and where this becomes impracticable, by reason of the shortness of the time during which the workman has been employed, then the compensation is to be based on the average weekly amount which, during the twelve months previous was earned by a person in the same grade or class of employment in the district where plaintiff was employed. Plaintiff had been at work but one day when he was injured, and the petition should have alleged what were the average weekly earnings of persons in the same grade or class of employment during the previous year. All the petition stated as to his earnings was:
“That said plaintiff was, on or about the 4th day of June, 1913, in the employ of said defendant, and had been in such employ for some time prior thereto without interruption and received as compensation for his said services the sum of twelve ($12) dollars per week in said employment.”
This was, perhaps, sufficient to get past a demurrer; there was no motion to make more definite and certain, and the omission to plead the facts properly could not have prejudiced the rights of the defendant. We tfrink the testimony of defendant’s foreman as to the customary prices for labor in that kind of employment for a year or more, which he said ranged from $1.75 to $2 a day in the same line or class of employment, was sufficient evidence of the average wages paid in the same grade and class of employment for the previous year.
There was no error in sustaining an objection to the question asked of Doctor Gray. He testified to substantially the same facts embraced in the question and the offer of proof. Over defendant’s objection, Doctor Faust was permitted to
At the defendant’s request, the court instructed the jury to find for defendant, if they believed from the evidence that defendant tendered plaintiff compensation as fixed by the statute, “for the entire period for which he was incapacitated, totally or partially,” and that plaintiff refused to accept. It is said that the jury disregarded this instruction, and that it was based upon uncontradicted evidence. The contention is that the court did not intend to charge the jury that the tender should cover future incapacity, but only the period of incapacity up to the time of the tender. If such was the intention of the court, the instruction was wrong. As we have seen, plaintiff had a right to refuse the tender, if there whs a disagreement between him and the defendant as to his future incapacity. We think the court and the jury understood the instruction to refer to a tender of compensation for the entire period during which he was, in fact, incapacitated, either totally or partially.
There were some verbal inaccuracies in the language of the instructions as to the method by which the jury should determine the amount of compensation, but as a whole the in
The judgment is affirmed.