Abbott v. Southwest Grain Co.

• Court: Kansas Supreme Court
• Writing for the Court: PARKER, Justice.
• Citation: Abbott v. Southwest Grain Co., 162 Kan. 315, 176 P.2d 839 (Kan. 1947)
• Decision Date: 25 January 1947
• Docket Number: 36700.
• Parties: ABBOTT v. SOUTHWEST GRAIN CO. et al.

176 P.2d 839

162 Kan. 315

ABBOTT v. SOUTHWEST GRAIN CO. et al.

No. 36700.

Supreme Court of Kansas

January 25, 1947

Rehearing Denied March 12, 1947.

Appeal from District Court, Hodgeman County; Lorin T. Peters, Judge.

Proceeding under the Workmen's Compensation Act by George Abbott, a minor, claimant, by his father and natural guardian, Jesse Abbott, opposed by the Southwest Grain Company, employer, and the Hartford Accident & Indemnity Company, insurance carrier. From a judgment awarding compensation, the employer and insurance carrier appeal.

Reversed with directions.

PARKER J., HARVEY, C.J., and SMITH, J., dissenting.

Syllabus by the Court.

1. Fundamental principles applicable to the disposition of an appeal in a workmen's compensation proceeding are reviewed and stated thus: (1) An appellate court is concerned only with evidence tending to support the award and does not consider any evidence warranting a different or contrary conclusion; (2) to be compensable under the workmen's compensation act an accidental injury must 'arise out of' as well as 'in the course of' the employment (3) even though this court does not weigh conflicting evidence the question of whether the trial court's judgment is supported by substantial competent evidence is a question of law as distinguished from a question of fact, and (4) the burden of establishing that an accidental injury arose out of and in the course of employment is upon the claimant.

2. Under the clear and unequivocal terms of G.S. 1935 44-508(k), there are no exceptions to the rule that the words 'arising out of and in the course of employment' as used in the workmen's conmpensation act shall not be construed to include injuries occurring to an employee while he is on the way to assume the duties of his employment.

3. Where the uncontroverted record in a workmen's compensation proceeding discloses that a workmen, employed as a helper in an elevator with no regular hours of employment, had quit work at night but later in the evening of the same day while on the way from his home to the elevator under instructions from his employer to close some open grain bin doors, sustained injury on the highway before arriving at the premises on which such elevator was locatted, it is held such injury occurred while on the way to assume duties of employment and is not compensable under the workmen's compensation act.

T. F. Railsback, of Kansas City (Russell L. Hazzard, of Dodge City, on the brief), for appellants.

O. A. Wilson, of Jetmore, for appellee.

PARKER Justice.

This was a proceeding under the workmen's compensation act. At the hearing before the compensation commissioner the parties stipulated the respondent was operating under the act, the claimant was in its employ at a weekly wage of $48 a week or $8 per day, the Hartford Accident and Indemnity Company is the insurance carrier, and oral notice of the alleged accident was received by the respondent. It is now conceded a sufficient written claim was made within time. The only evidence adduced was by the claimant. Based on it both the commissioner and the district court granted an award, the all important finding of the latter being that on the date alleged claimant sustained personal injury by accident arising out of and in the course of his employment with respondent while directly engaged in carrying out its orders in the furtherance of its business. Thereupon the respondent and the insurance carrier appealed.

Except for evidence to which we shall hereinafter make specific reference the factual situation on which the claim is based, can be summarized thus: Respondent operates a grain elevator in the south part of Jetmore, and Lester Abbott, a brother of the claimant, who lived in the northwest part of that city about one-half mile from where it is located, was its local manager; the claimant, a minor, worked at the elevator, and lived at Lester's home; his duties were to do whatever was to be done around the elevator; during the harvest season there were no regular working hours; on the 25th day of July, 1945, while harvest was in progress, Lester and George quit work at the elevator at about 8 p.m., leaving two hatches, or doors, in the roofs of the storage bin open; from the elevator they went directly to Lester's home for supper; after the evening meal George was instructed by Lester to go back to the elevator and close the two hatches; while on the way to perform that task, and as he went through the business part of the city, he induced a friend to take him to the elevator in an automobile; George and his friend never reached their destination; as they were proceeding in that direction the automobile in which they were riding collided with an unlighted parked truck and from this collision claimant suffered injuries which resulted in the partial loss of the use of his right arm and the institution of the present proceeding.

Particular portions of the evidence relied on by claimant as justifying the finding of the trial court to which we have heretofore referred will be pointed out.

Among other things Lester Abbott, who testified as a witness for the claimant said: 'During harvest season there were no regular working hours for anyone around the elevator; frequently the force would work until 9 or 10 o'clock; sometimes they would go home to supper and come back; the day's work wasn't finished until they got everything done which could be done that day; on days when they went home for supper and then worked after supper George usually went back with him; * * *'.

The record also credits him with having made this statement: 'sometimes after they considered the day's work done, someone would come in with a load of wheat and say 'would you come down and dump me', and they would. When you are working at an elevator the work isn't always ever done and if anything developed at the elevator that needed to be done it was part of the day's work and they did it.'

Specific questions propounded and answers made by him as a witness read:

'Q. After you had gone home, did there any duty that should be performed come to your mind that should be performed that day, Mr. Abbott? A. Yes.

'Q. Just what was that? A. Well, we were eating supper, and George said that he was going to the show, and in the meantime there was quite a cloud coming up that evening from the west. I says to George, 'If you are going downtown, you catch a ride or walk down or go down and shut those two doors'. He knew where they were, he had been working there that afternoon, and he said he would.

'Q. On this particular evening, did you suggest any way for him to get down to the elevator? A. As I told you awhile ago, we were sitting there at the table yet. I asked George where he was going. We had went down and taken a shower, and he had cleaned up, and I figured he was going to town. He said, 'Well, I am going to the show,' and I mentioned to him, I said, 'If you are going to the show, you just go down and shut those doors. Either catch a ride or walk down, and shut those doors'.

'Q. You didn't have anything to do with how he went down--A. I told him specifically to go down----

'Q. I understand that, Mr. Abbott, but the question is, you had nothing to do with the manner in which he got town there, did you? A. No, I had nothing to do with that.

'Q. And on the 25th day of July, you had completed your day's work prior to going home to supper, hadn't you? A. Yes.

'Q. Was there any further work that you had in your mind that had to be done other than the closing of these doors down there at the elevator that night? A. There wasn't a thing.

'Q. Mr. Abbott, as a matter of fact, during the harvest season, particularly, quite often something you would think of that should have been done during the day, and you would go back to check that up? A. No, I wouldn't say that. I believe, if I am not mistaken, that is the only time we ever went back after we had really closed down the elevator'.

Claimant as a witness on his own behalf made the following statements: 'Nothing was said about the hours or number of hours he worked; that they never worked any special time or quit at a special time but worked until they were through dumping wheat and things were cleaned up, all of which would be done before they went home.'

In addition the following questions and answers appear as a part of his testimony:

'Q. After you had gone home to supper, was anything brought to your attention about going back down there? A. Yes, Les told me--we remembered about the doors when we seen that cloud coming up; he told me to go down and close them after supper.

'Q. At that time, George, you were on your way to carry out your brother's orders to close the doors, were you? A. Yes.

'Q. And as I understand you, when you left the house, you came downtown? A. Well, I was going down at that time to shut the doors.

'Q. You were on your way down to shut the doors? A. Yes.'

As we approach consideration of appellants' first specification of error, which is that the trial court erred in adjudging the claimant sustained personal injury by accident arising out of and in the course of his employment with the respondent, let it be said there has been no attempt in our relation of the record facts to detail all the evidence. On the contrary our summary thereof and our reference to specific portions of the testimony are made without regard to any evidence contrary to the trial court's finding with full recognition of the rule, now so well grounded in this jurisdiction, as to preclude argument or debate (Stanley v. United Iron Works Co., 160 Kan. 243, 160 P.2d 708; Lane v. St. Louis Smelting &amp Refining Co., 160 Kan. 495, 496, 163 P.2d 362; Burk v. American Dist. Tel. Co., 160...