136 Minn. 151 | Minn. | 1917
Delbert J. Bovie was in the employ of the city of Breekenridge and
The questions presented do not require extended discussion. While it seems clear that there was no abuse of discretion on the part of the court in relieving plaintiff of her failure seasonably to reply to defendant’s answer, yet, if the new matter set forth in the answer does not in
While the learned trial court, upon sustaining the demurrer to the complaint in the former action, might well have adopted the' course indicated as proper in Mahowald v. Thompson-Starrett Co. 133 Minn. 113, 158 N. W. 913, and retained the case for hearing under the compensation statute, we are clear that the judgment therein should not be held a bar to the compensation proceedings. The Mahowald case apparently was not called to the attention of the trial court. The common law action and a proceeding under part 2 of the compensation statute are essentially different in many important respects, though each has a common object, namely, compensation for the injury or death complained of. The action at law is founded upon negligence, a showing of which is necessary to a right of recovery. The action proceeds in its course through the courts in harmony with established procedure, including the right of trial by jury. The compensation proceeding is controlled in a general way by the procedure prescribed by the statute creating the remedy; the hearing or trial before the court is summary, without a jury, and the element of negligence is not a necessary issue therein. The amount which may be recovered in the common law action, for an injury to the person, is limited to reasonable compensation, and recovery may be had for pain and suffering occasioned by the injury; the recovery under the compensation statute is limited to the amount and during the period of time therein specifically stated, and there is no compensation for pain and suffering. The judgment in the common law action is final and conclusive as to amount, but the compensation judgment may be modified under particular circumstances.
It is probable that, if the complaint in a particular case should state all the facts which would entitle plaintiff to relief under the compensation act, a judgment for defendant therein would bar a subsequent compensation proceeding, though in the other action common law relief only was demanded. But such is not this case. The former complaint did not state all the facts necessary to a recovery under the compensation statute. In this view of the case a reply to the answer was unnecessary, for the plea of former judgment did not constitute a defense to the present proceeding, and the proceeding must go to trial, even though the court below may have erred in permitting the reply to be filed.
The suggestion of defendant’s counsel that the former action was attempted to be brought under part 1 of the compensation statute is not sound. The allegation of the complaint that the employment of decedent by defendant was casual was inserted therein to take the case out of the statute.
Order affirmed.