HOPPER v. WILSON & CO. (No. 23793.) (Supreme Court of Kansas. June 10, 1922. Rehearing Denied July 8, 1922.) 207 Pacific Reporter, 757. (Syllabus by the Court.) MASTER AND SERVANT COMPENSATION CLAIMANT'S WIDOW MUST MAKE CLAIM WITHIN SIX MONTHS. Where an employer makes settlement with an injured employee, obtaining a release of all claims on his part under the Workmen's Compensation Act, and some months later the employee dies, an action by his widow under that law cannot be maintained unless a claim upon the employer has been made in her behalf within six months after her husband's death. (For other cases, see Master and Servant, Dec. Dig. § 398.) Appeal from District Court, Wyandotte, County. Action by Mary E. Hopper against Wilson & Co., in which a demurrer to plaintiff's evidence was sustained and she appeals. Affirmed. C. A. Bowman, of Kansas City, for appellant. MASON, J. The widow of J. N. Hopper brought this action under the Workmen's Compensation Act, alleging that his death was due to injuries received while in the employ of the defendant. A demurrer to her evidence was sustained, and she appeals. One ground upon which liability is denied is that no claim for compensation was made within six months after the death of the plaintiff's husband. Hopper was injured April 18, 1918. He executed a statutory release in consideration of the payment of $25 May 7, 1918. He died September 28, 1918, the certificate of death stating: "The cause of death was as follows: tory valvular heart disease." Pneumonia (lobar). Contribu The plaintiff made a demand for arbitration August 15, 1919, this being the first notice given to the defendant of a claim that her husband's death was due to the injury referred to. The statute provides: "Proceedings for the recovery of compensation under this act shall not be maintainable unless written notice of the accident, stating the time, place and particulars thereof, and the name and address of the person injured, has been given within ten days after the accident, and unless a claim for compensation has been made within three months after the accident or in case of death, within six months from the date thereof. Such notice shall be delivered by registered mail, or by delivery to the employer. The want of, or any defect in such notice, or in its service, shall not be a bar unless the employer proves that he has, in fact, been thereby prejudiced, or if such want or defect was occasioned by mistake, physical or mental incapacity or other reasonable cause, and the failure to make a claim within the period above specified shall be a bar: Provided, however, That in case of incapacity of an injured employee the limitation herein shall not run during such incapacity." Gen. Stat. 1915, § 5916. Whatever may be the rule under other circumstances we think in the situation here presented the statute is to be interpreted as requiring the making of a claim by the plaintiff after her husband's death and within six months of its occurrence. Such a requirement is in keeping with the spirit and policy of the law because the defendant, having settled with her husband during his life-time, had no reason to anticipate the making of a further demand, and the assertion of one after the lapse of six months (in this instance over ten months) might well find it disabled from obtaining the information and preserving the evidence necessary for a defense. It does not appear that any claim for compensation was made upon the defendant by the injured employee, but the settlement made with him would render that fact immaterial as between them. But this settlement having been effected, the defendant was justified in assuming, in the absence of any notice to the contrary, that the whole affair was ended, and in treating it as a closed incident. While the plaintiff pleaded that the release was entered into under a mutual mistake of fact as to the nature and extent of the employee's injuries, and that the consideration therefor was so grossly inadequate as to amount to a fraud, these contentions were abandoned on the trial. Even if the defendant had known of the death, there was no reason to connect it with the accident especially in view of the cause assigned in the certificate. Whatever considerations make it desirable that a claim for compensation shall be made upon the employer within six months after the death of the employee in any case apply fully here. Under our Compensation Act the statute of limitations begins to run against the claim of the dependents, as well as that of the injured employee from the time of the accident, but we do not regard this fact as throwing any light on the interpretation of the language under consideration. The fixing of the period of limitation rests of course wholly with the Legislature, and the policy of requiring a compensation action by dependents to be brought within a fixed time from the accident does not necessarily rest upon the theory of the identity of their demand with that of the employee. In British Columbia the making of a claim under the Compensation Act after the death of the injured employee has been held unnecessary, where one had previously been made in behalf of the injured workman. Moffat v. Crow's Nest Coal Co. 12 D. L. R. 1913, 642, 643. The statute there involved differed from our own in not containing the specific provision that "the failure to make a claim within the period above specified shall be a bar." The plaintiff suggests that such a provision is to be implied from the fact that the failure to give notice of the accident (as distinguished from making a claim for compensation) was made a bar only in case prejudice to the employer resulted therefrom. Such a distinction does not appear to have been the ground of the decision, which is based upon a purpose to carry out the intention of the act by a liberal construction thereof. The claim is treated much as a notice, and is so spoken of in the opinions, while the headnotes refer only to a "notice of injury." There the claim for compensation was made one week after the accident, and death ensued two weeks later, before any further proceedings had been taken, and while the claim was still pending. Quite obviously the claim then made may have been sufficient to protect the employer from a stale demand-to warn him that a claim was about to be made and thus put him on his guard. But such is far from the case here. The steps that had been taken the settlement and release-so far from warning the employer of the prospect of a further demand, tended to lull him into security in the belief that the whole affair had been finally disposed of. In Michigan a new claim in behalf of the dependents is required where the employee's injuries result in his death pending the allowance of his own demand. Curtis v. Slater Const. Co., 202 Mich. 673, 168 N. W. 958. The statute there involved has some features which were given weight in reaching this conclusion, and which are not found in our law; for instance the dependents are expressly declared not to be parties in interest to a proceeding by the employee for the enforcement of his demand, and the claim of the dependents is required to be signed by them or by some one in their behalf. We regard the decision, however, in its general aspect as tending to support the view we have taken. The defendant also urges that there was not sufficient evidence that the employee's death was due to the accident, and that the release barred the plaintiff's claim as well as that of her husband. In view of the conclusion already announced, it will not be necessary to consider these matters. The judgment is affirmed. All the Justices concurring. PHILLIPS ET AL. V. OKEY. (No. 23865.) (Syllabus by the Court.) - 1. MASTER AND SERVANT EVIDENCE AS TO CAUSE OF DEATH OF MINER WITHIN COMPENSATION ACT HELD INSUFFICIENT. In an action for compensation for the death of an employee on the ground that his injury and consequent death were caused by breathing bad air in his employer's mine, when the state of the evidence was such that the trial court was constrained to find that there was "not sufficient evidence to show that the death [of the workman] was caused by, or contributed to, by the breathing of the bad air," and when the evidence was uncertain as to what did cause the workman's death, there was no error in the trial court's refusal to make a finding thereon. (For other cases, see Master and Servant, Dec. Dig. § 405[4].) Appeal from District Court, Cherokee County. Action by Laura Phillips and others, by a next friend, against O. D. Okey. Judgment for defendant, and plaintiffs appeal. Affirmed. Skidmore & Skidmore, of Columbus, for appellants. G. W. Earnshaw, of Joplin, Mo., and Don H. Elleman, of Columbus, for appellee. Dawson, J. This was an action for an allowance under the Workmen's Compensation Act (Laws 1911, c. 218, as amended by Laws 1913, c. 216). [1] The plaintiffs are the wife and children of the late John Henry Phillips, who in his lifetime had been a miner and employed by the defendant for a short time during the year 1920. On August 8, the air compressor in defendant's mine became defective, and the air became so foul that Phillips and his fellow miners had to be taken out of the mine twice during the day. Some of the workmen, including Phillips, were somewhat affected, temporarily at least, by the bad air. That night the defendant was ill at his home. About ten days later, a doctor was called, and he found that Phillips "was suffering pain and had a chill and some fever." The doctor said he "could not ascertain the cause of his illness. * It might possibly be the bad air he had breathed in the mine. * * He * in a smoky condition, spit up substances, attended Phillips about six times. An abscess formed and afterwards broke in the chest. He reported to the state board of health an abscess could not say what caused his death. It was due Phillips died on September 5, 1920. on the lungs, * * to formed abscess." * * * * * * The counter abstract supplies the attending physician's testimony in greater detail: "Q. I wish you would state his condition a little more fully. Did he spit up anything? A. The first trip I made to the man, he did not, but the second trip, this abscess had broken, and he was spitting up this matter. "Q. Now, Doctor, was you able to ascertain the cause of this illness? A. No. * * * "Q. You say that an abscess formed and afterwards broke in his chest? A. Yes, sir. * * * "Q. Is that your judgment as to what caused his death? A. I could not say what caused his death. It was due from the abscess that caused his death. * * * "By the Court: Dr. Jones, have you a judgment as to how long that abscess was there? A. I have not; no, sir. I have no history of it and no way of diagnosing that." There was considerable evidence introduced on both sides, from which the trial court might possibly have found either way as to the main issue of fact; but among the findings which the trial court did make are these: "3. The court further finds that there is not sufficient evidence to show that the death of said John Henry Phillips was caused by, or contributed to, by the breathing of the bad air on August 8, 1920. * * * "6. That no notice of the alleged injury was ever given defendant, nor was any claim for compensation made upon the defendant until the service of summons in this action which was on the 12th day of November, 1920." Judgment for defendant was rendered pursuant thereto, and plaintiffs appeal. They complain of the trial court's refusal to find "what was the cause of the death of John Henry Phillips." But surely that was not error. It was incumbent on the plaintiffs to prove to the satisfaction of the trial court that the death of Phillips flowed from an injury which he had received in the course of his employment in defendant's mine. This they failed to do. The immediate cause of his death was the abscess; but the doctor who attended him could not tell what caused the abscess; and neither he nor either of the other two medical experts called as witnesses would concede more than a possibility that the bad air Phillips had inhaled on August 8 had caused the abscess, although two of them testified that it might possibly have aggravated an existing abscess. Since there was no convincing testimony that the abscess was caused or aggravated by the foul air in the mine, the trial court properly refused to trace Phillips' injury and death to anything arising out of and in the course of his employment. What else may have caused the abscess and consequent death was not a primary concern. [2] Complaint is also made because the trial court refused to find whether Phillips was made sick by the bad air in the mine and whether he ever recovered from such sickness. This criticism is ill founded. The trial court did find: "That some of said men, including Phillips, became affected to some extent on account of said bad air and said Phillips went home about 4 o'clock that afternoon after being so hoisted from said mine and still felt some effects of said bad air. That on the following day, and for some days thereafter, he remained at home and was in bed a part of the time and was up a part of the time, and on the 18th day of August a physician was called, and on his second visit, probably two or three days later, ascertained that the patient was suffering from an abscess on the lung, which abscess resulted in his death on September 15, 1920." [3] It was not necessary that the trial court's special findings of fact should follow the categorical outline submitted by counsel for plaintiffs. The court's findings as made fully satisfied the mandate of the Civil Code (Civ. Code, § 297; Gen. St. 1915, § 7197; In re Appeal from Survey, 106 Kan, 222, 187 Pac. 677; Alexa v. Alexa, 108 Kan. 38, 46, 193 Pac. 1083). In view of the foregoing, the correctness of the trial court's finding that there was no notice given to the defendant of Phillips' injury and that no claim for compensation had been made becomes immaterial. The record discloses no prejudicial error, and the judgment is affirmed. HARDY v. MUENSCH. SAME v. HOAGLAND. (Court of Appeals of Kentucky. June 20, 1922. 242 Southwestern Reporter, 586. 1. MASTER AND SERVANT-EVIDENCE OF COMPENSATION FOR INJURY INCOMPETENT IN ACTION AGAINST STRANGER. In an action by a truck driver against a stranger, with whose automobile his truck collided, to recover damages for personal injuries, evidence that the truck driver was receiving compensation from his employer for his injuries is incompetent on behalf of the defendant. (For other cases, see Master and Servant, Dec. Dig. § 354.) Appeal from Circuit Court, Jefferson County, Common Pleas Branch, First Division. Separate actions by George Muensch and William B. Hoagland against William B. Hardy consolidated for trial with a third action. Judgment for the plaintiff in each action, and defendant appeals from the judgments in the two named actions. Affirmed. lees. John P. Haswell, Jr., of Louisville, for appellant. Oscar Leibson and Chas. W. Morris, both of Louisville, for appel CLAY, J. On September 29, 1919, a truck belonging to M. M. Broida who was doing business under the name of the Tri-City Electric Company, collided with a Dodge touring car belonging to William B. Hardy at the intersection of Walnut and Preston streets in the city of Louisville. Broida's foreman, George Muensch, was driving the truck, and he was accompanied by William B. Hoagland, a fellow employee. Hardy's car was being driven by his son, Willaim B. Hardy, Jr. A few days after the accident, Broida sued Hardy to recover for injuries to the truck, while Muensch and Hoagland each sued to recover for personal injuries. On motion of Hardy the cases were tried together. The jury returned a verdict in favor of Broida for $175, in favor of Muensch for $750, and in favor of Hoagland for $500. From the judgments in favor of Muensch and Hoagland Hardy appeals. [1] It is first insisted that the court erred in refusing to permit Hardy to show that Muensch and Hoagland each received from Broida, their employer, a certain sum as compensation under the Workmen's Compensation Act. Acts 1916, c. 33. We had occasion to |