Van Zandt v. Sweet

FINLAYSON, P. J.

This is an action for damages for personal injuries sustained by plaintiff in a collision with an automobile driven by defendant. The jury returned a verdict in plaintiff’s favor, and from a judgment entered thereon the defendant appeals.

At the time of the accident, August 28, 1919, plaintiff was in the service of an employer who had been insured by the state compensation insurance fund against liability for compensation to an employee. During plaintiff’s cross-examination the fact was brought out that he had made application to the Industrial Accident Commission for compensation under the workmen’s compensation law (Stats. 1917, p. 831) and that he had been paid such compensation by his employer’s insurance carrier, the state compensation insurance fund. Thereupon defendant moved the court for a nonsuit on the ground that plaintiff had received compensation under the workmen’s compensation law. The motion was denied. Later, and after both parties had introduced their evidence and rested, defendant requested the court to peremptorily instruct the jury to return a verdict for defendant. The requested instruction was denied. This request for a peremptory instruction was made for the same reason that the motion for a nonsuit was made, namely, for the reason that, on his own showing, plaintiff had received compensation under the workmen’s compensation law. The sole point made on this appeal is that the trial court erred in denying defendant’s motion for a nonsuit, and likewise in denying his request for such peremptory instruction.

[1]

Without doubt, plaintiff, under the workmen’s compensation law in force at the time of the accident—the act of 1917, as amended by the act of 1919 (Stats. 1919, p. 910) ■—had a right of action against this defendant for damages arising out of his injuries, notwithstanding the receipt of compensation from his employer’s insurance carrier. Such

[166]

right of action is expressly recognized by section 26 of the act, which, so far as it is applicable to this particular point, reads: “The claim of an employee for compensation, [under the workmen’s compensation law] shall not affect his right of action for damages arising out of injury . . . against any person other than the employer.” Such right of action against a third party causing the injury was possessed by the injured employee under the original workmen’s compensation law—the act of 1913 (Stats. 1913, p. 279.)