Affirming.
A train of the appellee Railroad Company struck a truck belonging to the appellant, A.M. Whitney, doing business as Whitney Transfer Company, at Brandenburg, in November, 1936. We reversed a judgment rendered on a directed verdict for the defendant in an action by Whitney against the Railroad Company for the value of the truck. Whitney v. Louisville N. Railroad Company,
This action was brought by Whitney against the Railroad Company to recover the balance of $1,600 under its right to have a third party, who was responsible for the compensable loss, bear the burden. Sec. 4890, Ky. Stats., now KRS
It is contended that proof of the settlement itself and of the defendant's answer setting up the settlement was competent as admissions of responsibility. The appellant submits that while proof of an offer of compromise is inadmissible, a consummated settlement is admissible since it cannot prejudice or mislead the jury as an offer might do. Under some circumstances the distinction might be drawn (31 C.J.S., Evidence, sec. 290, p. 1050; Jones, Commentaries on Evidence, Sec. 1052), but the reason for rejecting an offer of compromise remains under conditions like those appearing in this case where the issue was liability or non-liability for the accident, and the settlement agreement contained no statement of fact constituting an admission against interest. We have ruled in accordance with the basic principles of judicial policy that where there are two causes of action arising from the same act or accident a compromise with one party may not be proved in the action of the other. Powers' Adm'r v. Wiley,
The appellant sees a distinction here because this case involves the death of but one person and there is in fact only one cause of action. It is generally held that the usual provision in workmen's compensation statutes for the recovery by the employer or his insurance carrier *Page 384
from a third person liable for an employee's injury or death of compensation paid or payable does not create a new cause of action, but merely transfers the right of the recovery to the employer or insurance carrier so that the same statute of limitations applies to an action by the employer or an insurance carrier against the third person as would have applied had the action been brought by the employee or his representative. Annotations, 95 A.L.R. 1431; Schneider, Workmen's Compensation, Sec. 851. Since the right of the employer is a derivative one authorized by the statute, KRS
In a case of this kind the right of the employer to have the questions of liability and recovery adjudicated remains despite any settlement by the tort-feasor with the employee or his representative if the amount is less than the employer's liability under the Workmen's Compensation Act. Napier v. John P. Gorman Coal Company,
It is the duty of the courts to encourage rather than discourage amicable settlements as a mode of adjusting justiciable differences no matter that one party may have got the best of the bargain. Therefore, such settlements ought not to be allowed later to prejudice any party to them or bind him as an admission of liability in an encounter with one not a party to the settlement. We are of opinion that the court properly refused to allow the plaintiff to introduce the settlement in evidence.
On voir dire a member of the jury panel stated that he had been an officer of and was then a stockholder in the Ferdinand Railroad Company, located in Indiana, which he described as being "the smallest line in the country" and one that "wasn't big enough to be sued for damages." Also that the senior member of the firm of attorneys representing the defendant had been his attorney for many years. However, he stated that neither of these relationships would embarrass or prejudice him as a juror. The court overruled the plaintiff's challenge for cause, but he was stricken peremptorily by the plaintiff. KRS 29.270. The point is made that the plaintiff was unjustly required to exercise one of his three peremptory challenges upon a member of the panel who was disqualified as a matter of law and that there was another member whom he would have eliminated but for this decision of the court. None of the cases cited present situations like the present, nor, it seems to us, analogous thereto. We are of opinion that an inference that the relationships described created an inclination not to give the plaintiff a fair hearing is too remote and unsubstantial to have authorized the court summarily to adjudge the prospective juror to be disqualified as a matter of law; at least, we will not hold there was an abuse of judicial discretion in the ruling.
Wherefore the judgment is affirmed. *Page 386