Kilgore v. Collins

Hammond, J., delivered the opinion of the Court. The appellant, a tort-feasor, against whom an injured workman and the compensation insurance carrier of his employer recovered a judgment, seeks reversal on the claims that the trial court erred prejudicially (a) in allowing proof of the fact and amount of compensation payments to the injured employee (and the amount of medical expenses paid by the insurer), and (b) in instructing the jury that the insurer was entitled to recover from the verdict the amount it had paid. The workman was a truck driver who injured his wrist when he jackknifed his employer’s truck in an effort to avoid a collision with an automobile operated by the defendant below, the appellant here. The Compensation Commission awarded temporary total and permanent partial disability benefits, which were paid by the insurer, as were medical expenses, in the amount of $4,363.00 in all.

The injured workman sued the automobile driver for damages for loss of wages, pain and suffering, and permanent injuries. The driver moved to dismiss because Code (1957), Art. 101, Sec. 58, provides that for a period of two months from the award by the Compensation Commission the employer or insurer has the prior and exclusive right to bring suit against a third party, and the two months had not expired. Leave of court was given to amend the declaration to include ¹⁵⁰ the insurer as a claimant to the extent of the amounts it had paid, and the amendment was made. When the case came on for trial, the court was advised preliminarily that inasmuch as the insurer had been made a party, it proposed to prove that the. award had been made and complied with, and the amount of the compensation and medical payments under the award, to justify its right to recover the monies it had paid out, under Code (1957), Art. 101, Sec. 58.

The automobile driver objected both to the fact of the award and the amounts paid under it being made known to the jury, claiming that the court could apportion any verdict rendered to protect the insurer’s rights. After discussion with the court, it was agreed that in his opening statement counsel for the workman (who represented the insurer also) would tell the jury that the insurer had paid out certain monies (without giving the amounts) as compensation to the workman and would claim the right, under the compensation law,- to recover them from a verdict for the workman. This was done. Thereupon, on cross-examination of the plaintiff-workman, counsel for the defendant-driver brought out that after a claim had been filed with the Compensation Commission the workman had received weekly benefits for a year.

Then, on redirect examination, the workman’s counsel proved the amount that had been' paid each week. The automobile driver’s counsel also cross-examined other witnesses as to the details of the receipt of compensation, particularly the doctor who treated the workman. Counsel for the'claimant then produced a representative of the insurer who testified as to the amounts paid as compensation and for medical treatments and expenses. The court instructed the jury that the only reason the insurer was in the case was because under the' law an injured employee is entitled regardless of fault to workmen’s compensation which had been paid by the insurer.

He told the jury that for the purpose of its consideration of the case the workman was the sole plaintiff and that “the amount of the award of the Workmen’s Compensation Commission has no bearing on this case at all except in one particular, and that is, in the event, under the law and the evidence, that you would find in ¹⁵¹ favor of the plaintiff and award the plaintiff damages against the defendant, then the insurance company * * * who have had to pay out workmen’s compensation * * * would be entitled to recover from your verdict up to the amount of what they had to pay under the order of the Workmen’s Compensation Commission.” Next, the jury was told that if they found the workman was not entitled to recover the insurer could not recover, and that they were not bound by the award of the Commission “because you are trying this case on the evidence that you have heard in this case, not what the Workmen’s Compensation Commission would award * * *. So you can just forget about the insurance company in this particular case as a party plaintiff, because the sole issues in this case lie between the Plaintiff, George F. Collins and the Defendant, Robert O. Kilgore.” Standard instructions on primary and contributory negligence followed at length, in light of the law applicable to the environment and circumstances of the accident. Before coming to the standard instructions on damages, Judge Anderson repeated what he had previously told the jury “the amount of any award made by the Workmen’s Compensation Commission is not the measure of damages in a suit against a wrongdoer, should you find that Mr. Kilgore was a wrongdoer. * * * So far as the insurance company is concerned, they are entitled to recover out of any verdict that you may award, should you award a verdict in this case, but that is not a matter that you have to determine because you are going to bring in one verdict * * * that is, you are either going to find in favor of the plaintiff and assess the damages or in favor of the defendant.” Appellant finds prejudice to him in the admission of evidence as to payment of compensation and medical expenses, not cured he feels, by the court’s instructions, because, as he sees it, the effect was to 1 influence the jury and bind him by the findings of the Compensation Commission that temporary total disability existed for a stated period and that permanent partial disability resulted, and that a stated amount of medical expense was properly chargeable to the accident. Fie claims that the admission of the evidence “improperly relieved the plaintiff of ¹⁵² the obligation to prove his damages in the same manner as if there had been no claim for workmen’s compensation, and injected into the case two additional elements of damage (the amounts paid for temporary total and permanent partial disability) which were not properly a part thereof, with the inevitable result that the verdict was therefore increased by at least that amount.” The prejudice claimed from the court’s charge that the insurer would be entitled to recover from any verdict the amount it had paid out is that the award of the Commission is not the measure of damages and the effect of the instruction was to set the starting point of the jury’s deliberation as to the amount to be allowed at $4,363.00, since it knew the workman could keep for himself only the amount of the verdict above that figure.

The workman claims that he would have been prejudiced if the jury had known only that the insurer had paid him certain compensation benefits, without also knowing the amount and that the insurer was entitled to recover them, because there would surely be created in the jurors’ minds the impression that their verdict would to some unknown extent represent an unfair double recovery. He says also that the defendant automobile driver cannot justly complain because it was he who first brought to the jury on cross-examination of the workman the fact that the latter had received weekly compensation payments for a year. The workman finds it improbable that the defendant’s counsel would have brought evidence of compensation into the case if he did not think it would help, not hurt, his client: 1 ¹⁵³ Both the appellant and the appellee can muster cases which support or tend to support their contentions. Before attempting to decide what the governing law of the case is, we note that the appellant has not shown that either the challenged evidence or the instructions complained of in fact caused prejudice, nor has he pointed out facts from which an inference that they or either of them did fairly can be drawn.

Contrary to appellant’s argument, the workman offered evidence, including that of the doctor who treated him, from which the jury reasonably could have found that: the automobile driver was negligent, and the claimant was not; the claimant, because of his injuries, could earn only negligible amounts from December 1960 until May 1962; there had been hospital and doctor’s bills of over $700.00; there was substantial pain and suffering and permanent injuries to his wrist. In light of the monetary losses and extent of injury and disability which the jury could fairly have found was the responsibility of the defendant, the verdict of $11,000 can hardly be said to be excessive. Before the injury the workman earned between $125.00 and $145.00 a week. The testimony would support a finding that for sixteen months the workman was deprived of almost all that weekly income, or a ¹⁵⁴ total of, in rough, round figures, $8,000 to $9,500.

If the jury so found, only $3,000 to $1,500 would be left of the $11,000 verdict to represent recompense for pain and suffering and permanent disability, disregarding, for the purposes of the assumption, the $700.00 of medical expenses. In considering the prejudice claimed from the charge to the jury, it should be .remembered that the parties agreed that counsel for the insurer should tell the jury in his opening statement that the insurer had made compensation payments to the workman and was entitled under the law to recover them from a verdict for the workman. The defendant would seem to have no sound right to object to the court’s repeating in his charge to the jury what the defendant had agreed the jury should hear in opening statement. Where only the injured employee is- a plaintiff in a tort action against a third party there are cases holding that to let the jury know that there was workmen’s compensation coverage is prejudicial, to the plaintiff-employee; there are cases holding that it is prejudicial to the defendant, and there are cases holding that possible prejudice to either plaintiff or defendant has been cured by the court’s instructions to the jury. 101 C. J. S. Workmen’s Compensation Sec. 1029.

See also annotation, 77 A. L. R. 2d 1154, “Prejudicial effect of bringing to jury’s attention fact that plaintiff in personal injury or death action is entitled to workmen’s compensation benefits” (which includes cases where the alleged error was induced or concurred in by the complaining party). In the situation- before us, that is, where the employer or insurer is a party plaintiff or the suit is to his use, the complaint of prejudice has usually been made by the third party defendant. , The courts have divided in, meeting the problem. Cases which support .the appellant’s claim of error include Cawley v. People’s Gas and Electric Co. (Iowa), 187 N. W. 591 (in which the'Court said that possible prejudice ordinarily can be cured by proper jury instructions, but found as a fact from the size of the verdict that it, had not been in that instance, and- ordered a remittitur); M ickel v. New England Coal and Coke Co. (Conn.), 47 A. 2d 187 ; McCoy v. Carter (Ky.), 323 S. W. 2d 210 ; Lebak V. Nelson (Idaho), 107 P. ¹⁵⁵ 2d 1054 (prejudice found as a fact from size of verdict); Blue Ridge Rural Electric Cooperative v. Byrd (C. A. 4), 264 F. 2d 689 (applying South Carolina law). Cases in which no prejudicial error has been found in. acquainting the jury with the fact of a compensation award or the payment of compensation, or both, include Foster and Creighton Co. v. St. Paul Mercury Indem.

Co. (Ala.), 88 So. 2d 825 (The insurer brought suit on its behalf and on behalf of the employee’s widow,and sons. The jury, was told by the plaintiff that it, the insurer, would recover what it had paid out and any excess would be for the benefit of the dependents, and the widow testified as to the receipt of. compensation benefits. The Cóurt .affirmed a judgment for the. plaintiffs, saying it was proper