He was permitted to show that the money paid him was a gift or loan and was not in discharge of any compensation awarded him. In Marion County Construction Co. v. Kimberlin (1933), 96 Ind. App. 145, 184 N.E. 574, an injured employee entered into a compensation agreement with his employer, which agreement was submitted to and approved by the Industrial Board, thereby having the effect of an award. Compensation was paid under the approved agreement, after which the employee sued a third party for his injuries.
Likewise, it has been held in this state that an employee who enters into a compensation agreement with an employer, which agreement is approved by the Industrial Board, may subsequently, in an action for damages against the tortfeasor, show that the money paid by the employer and received by the employee was under a supplemental contract to the effect that such payment would be treated as a loan and repaid in the event of the employee's recovery from the responsible tort-feasor. Marion County Construction Co. v. Kimberlin (1933), 96 Ind. App. 145, 184 N.E. 574; Artificial I. C.S. Co. v. Ryan, Admr. (1935), 99 Ind. App. 606, 193 N.E. 710. In view of what appears to be the established law of this jurisdiction, as indicated in the above cases, we are of the opinion that the evidence offered by the appellee as to the 4.
After discussing the rule in other jurisdictions and also citing English decisions construing provisions upon which the statute under consideration is modeled, the Indiana court in Pittsburgh, C., C. St. L.R. Co. v. Parker, 191 Ind. 686, 132 N.E. 372, 375, 134 N.E. 890, 19 A.L.R. 752, concludes: "The meaning of the statute seems too plain to admit of any possible construction other than that, when the injured workman goes so far as to `collect' from the employer under the Workmen's Compensation Law, he is forbidden also to recover an additional amount in an action at law against a third person whose negligence caused his injury." See, also, Marion County Construction Co. v. Kimberlin (Ind. App.) 184 N.E. 574; Mitchell v. Usilton, 146 Tenn. 419, 242 S.W. 648; Overbeck v. Nex, supra. A different construction is placed upon the same statutory provision by the Sureme Court of Kentucky in Book v. City of Henderson, 176 Ky. 785, 197 S.W. 449. The court construed the limitation that "he shall not collect from both" simply to prevent a plaintiff from collecting from a third person to the extent that he had already collected from his employer.
We must decide this case upon our own statutes. In passing, it may not be inapt to say that a number of cases hold that, where the employee has the right to elect whether he will take under the provisions of the Workmen's Compensation Act or sue the wrongdoer, he may choose either remedy but cannot avail himself of both. Typical are McDonough v. National Hospital Assn., 134 Or. 451, 294 P. 351; King v. Union Oil Co., supra; Phifer v. Berry, 202 N.C. 388, 163 S.E. 119; Marion County Construction Co. v. Kimberlin, (Ind.App.) 184 N.E. 574; Napier v. John P. Gorman Coal Co., 242 Ky. 127, 45 S.W.2d 1064. And a number hold that the employee having received compensation under the Act cannot then sue the wrongdoer. (See Matheny v. Edwards Ice M. S. Co., (C.C.A.) 39 F.2d 70; Workmen's Comp. Exch. v. Chicago, M., St. P. P.R. Co., (D.C.) 45 F.2d 885; Horsman v. Richmond, F. P.R. Co., 155 Va. 934, 157 S.E. 158; Nashville v. Latham, 160 Tenn. 581, 28 S.W.2d 46. See, generally, notes in 27 A.L.R. 497, 37 A.L.R. 840, 67 A.L.R. 254, 88 A.L.R. 667 et seq.)
It has also been held that a verdict contrary to law is one improperly affected by any error of law occurring at the trial. See, Marion County Construction Company v. Kimberlin (1933), 96 Ind. App. 145, 184 N.E. 574. If appellants are proceeding upon this definition of a "verdict contrary to law," it is incumbent on them to set forth error or errors of law occurring at the trial upon which they rely, and this the appellants also have failed to do. It is most difficult to perceive in what manner the argument advanced by the appellants in their brief supports the specifications of error No. 1, No. 2 and No. 3, set forth in the Motion for a New Trial.
And it has been determined that under the pertinent section of the Compensation Act applicable in this case, being Sec. 40-1213, Burns' 1940 Replacement, the dependent of the deceased employee may proceed against both the employer and the third person, even to the point of award and judgment, the only limitation being that the dependent may not collect from both. Armstrong Cork Co. v. Maar (1953), 124 Ind. App. 105, 111 N.E.2d 82, 85, points 1-3; Marion County Construction Co. v. Kimberlin (1933), 96 Ind. App. 145, 184 N.E. 574; Weis et al. v. Wakefield (1941), 111 Ind. App. 106, 116, 38 N.E.2d 303; Robbins v. National Veneer Lumber Co. (1949), 120 Ind. App. 213, 216, 88 N.E.2d 773; Small's Workmen's Compensation Law of Indiana, Sec. 11.12, p. 352. Further, that as long as there has been no collection from the employer or the wrong-doer, there has been no election.
Under said section of the Act and the amendment thereto it has been held that: (1) The purpose of the cited statute is to protect the employee and employer and not to protect or 3-5. limit the liability of the negligent third person. New York Central R. Co. v. Milhiser (1952), 231 Ind. 180, 106 N.E.2d 453; Marion County Construction Co. v. Kimberlin (1933), 96 Ind. App. 145, 150, 184 N.E. 574; Schneider, Workmen's Compensation, §§ 44-45; (2) that an employee may claim both an award of compensation against the employer and a judgment against the wrongdoer, and as long as there has been no collection under either, there has been no election. Rushville School Tp. v. Mock (1927), 86 Ind. App. 307, 157 N.E. 366; (3) that the employee may obtain an award against the employer and also a judgment against the wrongdoer.
The dependent of a deceased employee may proceed against both the employer and a third person and may obtain a judgment against the wrongdoer as well as an award against the employer, but 2. the statute provides that such dependent shall not collect from both. Burns' 1940 Replacement, § 40-1213; Weis v. Wakefield (1942), 111 Ind. App. 106, 38 N.E.2d 303; Pittsburgh, etc., R. Co. v. Keith (1929), 89 Ind. App. 233, 146 N.E. 872; Artificial I. C.S. Co. v. Ryan, Admr. (1935), 99 Ind. App. 606, 193 N.E. 710; Marion County Construction Co. v. Kimberlin (1933), 96 Ind. App. 145, 184 N.E. 574. Appellant has collected from the railroad company by reason of decedent's death.
However, he is prohibited by statute from collecting from both. Marion County Construction Co. v. Kimberlin (1933), 96 Ind. App. 145, 151, 152, 184 N.E. 574. The mere fact that an agreement for compensation has been made between an employee and employer does not itself indicate that the employee has elected his remedy; and if at that time an oral agreement was made for payment of money as a loan and thereafter a contract was entered into in writing, providing for the payment of money as a loan, all the circumstances surrounding the transaction would be for consideration of the jury in determining under what conditions the payments were made.
Whether or not an injured workman has in fact collected compensation from his employer in such cases is generally a question of fact for the jury to decide. Marion County Construction Co. v. Kimberlin (1933), 96 Ind. App. 145, 184 N.E. 574. In this case, last cited, it was the contention of the appellee that money paid him by his employer was paid as a gift or loan, and under the express understanding that it was to be repaid, and this court held that the facts and circumstances surrounding the payment and receipt of such money were proper questions to submit to the jury.