No. 21,661 | Kan. | Nov 9, 1918
The opinion of the court was delivered by
The appellant, who prevailed in this court, directs our attention to a point urged in her brief which was not covered by our opinion. (Swader v. Flour Mills Co., ante, p. 378.) She asked-for an interpretation of the word “recover” in the text of section 5 of the compensation act, which reads—
“The workman may take proceedings against that person [the person causing the injury] to recover damages and against any person liable to pay compensation under this act for such compensation, but shall not be entitled to recover both damages and compensation.”' (Gen. Stat. 1915, § 5899.)
Appellant fears that in further proceedings in this case it may transpire that she might recover an uncollectible judgment “against the person causing the injury,” and that under our original opinion she might be put to an election between a large uncollectible judgment against such person and the reíatively small allowance made to her under the compensation act. No artificiality surrounds the word “recover” in this act. “Recover” here means “obtain,” “procure,” “get,” and the like; to get damages or compensation; not a judgment, but the benefits of a judgment; it means payment. Neither an uncollectible judgment against the wrongdoer nor an unsuccessful attempt to realize thereon would bar plaintiff’s right to compensation under the act. This must be the proper interpretation, for in making a law which it hoped to frame so simply that litigation under it would be reduced to a minimum, the legislature would hardly concern itself about how many uncollectible judgments a person might recover under the act, but it would wisely and justly provide that the injured party would only be entitled' to receive payment from the wrongdoer or from the employer, and not from both.