
    No. 22,879.
    Henry Southern, Appellee, v. The Western States Portland Cement Company, Appellant.
    
    SYLLABUS BY THE COURT.
    1. Practice — When Issues of Fact Are Triable. A judgment will not be reversed because of the trial having been begun in less than ten days after the issues were made up, where it is clear that no actual prejudice resulted.
    2. Compensation Act — Injured Workman Consents to Arbitration — Refusal of Employer to Consent. The writing of a letter by a workman to his employer with regard to a claim under the compensation act, stating that he wishes to negotiate for a settlement, and that if an agreement cannot be reached he desires an arbitration and requests that the matter be taken up with his attorney, amounts to a consent on his part to arbitration, and a failure of the employer for over two months to respond to it may be regarded as such a refusal to consent thereto as to authorize the bringing of an action by the workman without a request to the judge of the district court to appoint an arbitrator.
    3. Same — Refusal of Employer to Arbitrate■ — Workman May Bring Action for Compensation. Where by reason of the employer’s refusal to arbitrate a workman is authorized to bring an action for compensation and does so, a subsequent offer of the defendant to settle the matter by arbitration does not impair the right of the plaintiff to maintain the action.
    4. Same — Action Under Compensation Act Triable to Jury. A suit under the compensation act is tried according to the .ordinary procedure and the statute does not contemplate the substitution of an arbitrator for the jury.
    .5. Same — When Lump-sum Judgment is Proper. Where an injured workman is authorized to seek compensation by action as distinguished from arbitration, and does so, the court has jurisdiction to render judgment for the immediate payment of the full amount to which he is found to be entitled.
    Appeal from Montgomery district court; Joseph W. Holdren, judge.
    Opinion filed January 8, 1921.
    Affirmed.
    
      W. N. Banks, and O. L. O’Brien, both of Independence, for the appellant.
    
      J. D. Brown, of Independence, and Charles D. Welch, of Coffeyville, for the appellee.
   The opinion of the court was delivered by

Mason, J.:

Henry Southern recovered a judgment against the Western States Portland Cement Company under the workmen’s compensation act, and the defendant appeals.

The action was brought in July, 1919. A demurrer was filed August 1, 1919, which was overruled January 17, 1920. An answer was filed January 26, and on February 4 the trial was begun over an objection by the defendant on the ground that the issues had not been joined ten days before that, as required by the statute. (Gen. Stat. 1915, § 7215.) This ruling is now complained of. It is clear that if the case had been set for trial at a later date the defendant would not have been able to make any better or different showing, and no contention is made that any actual prejudice resulted. To reverse the judgment under such circumstances by reason of the trial having been begun a day earlier than contemplated by the code would be futile and against the express mandate of the statute. (Gen. Stat. 1915, § 7485.) Upon the commencement of the trial the plaintiff was allowed to file a reply consisting of a general denial and the argument of the defendant that the case was not ripe for hearing is also based upon this additional consideration. The reply was probably unnecessary; at all events it made no change in the substantial controversy, and did not materially affect the situation. (Thompson v. Machine Co., 94 Kan. 453, 146 Pac. 1188.)

The statute provides that if an employer refuses to consent to an arbitration of a workman’s claim for compensation an action may be brought upon it, but only where the workman has consented to an arbitration or applied to the judge of the district court to appoint an arbitrator. (Laws 1917, ch. 226, § 20.) The defendant contends that the present action was not maintainable because the conditions stated had not been met. More than two months before the filing of the petition a letter was sent to the defendant containing a statement on behalf of the plaintiff that he wished to negotiate for a settlement of his claim and that if an agreement could not be reached he desired an arbitration, and requested that the matter be taken up with his attorney, whom he named, and by whom his name was signed. To this no response was made. The letter was a sufficient consent to arbitrate on the part of the plaintiff. It amounted to a fair effort to bring about an arbitration and the failure of the defendant to respond to it may be regarded as a refusal to consent thereto. (Roper v. Hammer, 106 Kan. 374, 187 Pac. 858.) The plaintiff having consented to arbitration and having been met with a refusal was not required to apply to the district judge to appoint an arbitrator. (Goodwin v. Packing Co., 104 Kan. 747, 750, 180 Pac. 809.)

The defendant in its answer offered to arbitrate and renewed the offer at the trial. The plaintiff’s right to sue however accrued with the refusal of arbitration by the defendant and after having been acted upon could not be impaired by a subsequent change of policy on the part of the employer.

The defendant asserts that the court erred in submitting the case to a jury, the suggestion being that an arbitrator should have been appointed. The statute provides that the judge of the court in which an action might be maintained may under certain circumstances appoint an arbitrator (Laws 1917, ch. 226, § 11), but the provision is merely a means for aiding in the settlement of the controversy by arbitration. If the claim is to be settled by a lawsuit the ordinary methods of such procedure are to be employed — an arbitrator is not to be substituted for a jury.

A final contention of the defendant is that the court had no jurisdiction to render a lump-sum judgment. Where the matter is settled by arbitration compensation for future loss can be awarded only in periodical payments, but a different rule is provided where the controversy is determined by a court. (Boyd v. Mining Co., 105 Kan. 551, 553, 185 Pac. 9.)

The judgment is affirmed.  