Rasmussen v. George Benz & Sons

The opinion is found in 210 N.W. 75. Reargument was granted upon two questions:

"1. With liability established as stated in the opinion, what tribunal should declare the amount to be paid under the compensation act?

"2. Why should not such determination be made solely upon the present record?"

1. In the original opinion the suggestion was made that application be made to the Industrial Commission for a determination of the amount and manner of payment of the proper award. This thoughtlessly disregarded the matter of jurisdiction.

G.S. 1923, § 4291, subd. (1) says an employe under circumstances here involved "may, at his or their option, proceed either at law against such (third) party to recover damages, or against the employer for compensation under part 2 of this act, but not against both." In the instant case the employe sought to recover at common law. Subdivisions (1) and (2) of the same section refer to the money to be recovered as damages and not as compensation. This is distinctive. Carlson v. Minneapolis St. Ry. Co. 143 Minn. 129, 173 N.W. 405. We construed the 1923 law, c. 279, as meaning that if the third party bore a certain relation to the employer, and was itself under the compensation act, then the employe should be confined *Page 327 to his remedy under the compensation act. We should not have said that he was confined to his remedy under the act but that he was limited in the amount of his recovery of damages to the limitations of the amounts specified as compensation in the act. Indeed a part of subd. (1) of § 4291 reads:

"If the employe in case of injury, or his dependents in case of death, shall bring an action for the recovery of damages against such party other than the employer, the amount thereof, manner in which, and the persons to whom the same are payable, shall be as provided for in part 2 of this act, and not otherwise."

Damages recoverable herein rest on negligence. It is a common law action. The statute gives no right to proceed under the compensation act against anyone but the employer. Hansen v. N.W. Fuel Co. 144 Minn. 105, 174 N.W. 726; Podgorski v. Kerwin,144 Minn. 313, 175 N.W. 694; Fidelity Cas. Co. v. St. Paul G.L. Co.152 Minn. 197, 188 N.W. 265. It does however in this case limit the amount of recovery. It would seem that the Industrial Commission has jurisdiction to act only in those cases where the contractual relation of master and servant exists.

Defendant urges that the verdict has established nothing but negligence, and that it now stands in the shoes of an employer and some tribunal must now determine if disability is the result of the accident, the probable duration thereof and the rate of weekly compensation. We are of the opinion that this contention is unsound. The record shows that defendant invoked the usual common law defenses, which employe successfully met. The record in our judgment requires us to hold that liability and permanent disability have been fully adjudicated in favor of plaintiff. The jury passed upon negligence, proximate cause and extent of injury. The fact that plaintiff was an employe is apparently recognized and it appears as a matter of law that the accident arose out of and during the course of his employment. With the facts before us what should his recovery be? His regular weekly wages were $33 except that every other week he worked on Sunday and on those weeks received $41. His injuries resulted in permanent total disability. G.S. 1923, *Page 328 § 4274 (d), provides that he should receive 66 2/3 per centum of his daily wage subject to a maximum of $20 per week, which shall be paid during his disability but the total not to exceed $10,000.

Under such circumstances we may remand with instructions to have the proper modification of the verdict. Mahowald v. Thompson-Starrett Co. 134 Minn. 113, 158 N.W. 913. The facts established by the verdict and the uncontroverted testimony are such that there is no occasion to remand the case to the trial court for further consideration because the law fixes the consequent amount. In the absence of the necessity to determine facts we may save the necessity of application to the lower court. The action was thoroughly and ably tried on both sides and justice requires a disposition of the case upon this record on which the parties have had a fair trial upon every issue involved. The jury determined the liability and all its incidental issues. Under the charge the jury necessarily found that the physical injury was caused by the falling tile and that the injury was the proximate cause of the mental derangement. It must also be construed, from the evidence in the case and the charge, as a finding of permanent insanity. There was evidence to that effect. Defendant has had its day in court. The law fixes the damages and the manner of payment.

The action is now remanded with directions to enter judgment for plaintiff for weekly payment of $20 payable weekly during plaintiff's disability beginning August 25, 1924, with interest to date of judgment on delinquent payments, but the total amount exclusive of interest shall not exceed $10,000.

Remanded. *Page 329