McRoberts v. National Zinc Co.

Citations

• 93 Kan. 364
• 144 P. 247
• 1914 Kan. LEXIS 439

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Workmen’s Compensation Act — ■Employer and Employee Within Its Provisions — Remedy is Exclusive. Shade v. Cement Co., 92 Kan. 146, 139 Pac. 1193, holding that the remedy afforded by the ■workmen’s compensation law (Laws 1911, ch. 218, as amended by Laws 1913, ch. 216) in cases where the employer and employee have elected to come within its provisions is exclusive, followed.</p> <p>2. Same — Action Can Not be Joined with Common-law Action for Damages. An injured employee brought an action asking in the first count for compensation for his injury under the workmen’s compensation law and in the second count for damages for pain and suffering and for disfigurement of his hand proceeding from the same injury and which resulted from the negligence of the defendant. The court overruled a demurrer to each count of the petition and refused to require the plaintiff to elect on which count he would rely, and directed the parties to proceed to trial on the count for damages, reserving the count for compensation for future consideration. The jury were instructed to consider the case as one based upon a common-law liability for a negligent injury, and a verdict was rendered awarding damages for pain and suffering and disfigurement. Held, that while there was some evidence tending to show partial disability and some testimony as to the recent earnings of the plaintiff, the verdict rendered can not be treated as an award of compensation nor can a judgment be entered in this court for any sum as compensation.</p>