Benson v. Bush

• Decision Date: 08 February 1919
• Docket Number: 21,883
• Parties: C. H. BENSON, Appellee, v. B. F. BUSH, as Receiver of THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Supreme Court

178 P. 747

104 Kan. 198

C. H. BENSON, Appellee, v. B. F. BUSH, as Receiver of THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

No. 21,883

Supreme Court of Kansas

February 8, 1919

Decided January, 1919.

Appeal from Sedgwick district court, division No. 2; THORNTON W SARGENT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. COMPENSATION ACT--Injuries--Agent Lighting Fire with Kerosene. The plaintiff, as station agent of the defendant, was not, while attempting to start a fire in the depot stove, engaged in interstate commerce.

2. SAME--Accident Incident to Employment. His attempt to start a fire by the use of kerosene, which he supposed was signal oil, did not thereby add to his employment any peril outside thereof.

3. SAME. The injury arose out of and in the course of his employment within the meaning of the workmen's compensation act.

W. P. Waggener, Walter E. Brown, G. L. DeLacey, all of Atchison, and O. H. Bentley, of Wichita, for the appellant.

John W. Adams, and S. S. Hawks, both of Wichita, for the appellee.

OPINION

WEST, J.:

The defendant appeals from a judgment recovered by the plaintiff for injuries caused by burns received in attempting to start a fire in the depot where the plaintiff was employed. The action was under the workmen's compensation act.

At the station of Ray, in Pawnee county, the plaintiff began work as relief agent, and in trying to start a fire with what he supposed was signal oil, but which was afterwards found to be kerosene, he was burned. The answer alleged that, if the plaintiff was injured, it was not by reason of any accident arising out of and in the course of his employment, but was due to the explosion of a can of kerosene which he himself poured upon the live coals, and that he was injured because of the new and added peril caused thereby, to which he carelessly exposed himself, and that the act was outside of his employment. It was further alleged that the injury occurred while the plaintiff was employed by the defendant in interstate commerce, and that his remedy, if any, was under the federal employers' liability act.

The court instructed the jury that the injury was an accident that occurred in the course of plaintiff's employment, but that it remained for them to determine whether it arose out of the employment, which they were told meant that the accident was in some sense due to the employment and resulted from an accident or risk reasonably incident to that employment, and a risk which might have been contemplated by a reasonable person entering the employment, as incidental to it; that if the injury was due to an act of the plaintiff's which added a new or additional risk to his employment he could not recover. The jury were also instructed that the question of whether the plaintiff and defendant were engaged in interstate commerce, as a defense, was not before them for their consideration.

They answered special questions to the effect that the plaintiff was not injured by pouring kerosene on the fire, or on live coals; that the explosion was caused by fire from a lighted match coming in contact with explosive matter; that the liquid in the can, which the plaintiff poured in the stove, was kerosene; that a former agent furnished the kerosene; that the defendant had a rule forbidding its use in starting fires in stations, which rule was in the station at Ray, but that the plaintiff did not know of its existence before his injury; and that the defendant checked to the plaintiff as agent the cans in the depot, the contents of one of which was afterwards used by him in attempting to light the fire.

The defendant argues that as Ray was a station on an interstate line of railroad, where the duty of the agent was to sell tickets to points in and out of the state and to handle state and interstate freight, the agent was engaged in interstate commerce; that his injury did not arise out of and in the course of his employment, but that it arose from the new and added peril caused by the method he himself chose to do his work; that when the defendant had provided kerosene for lights and had made a rule prohibiting its use in starting fires, and the agent, nevertheless, used it for that purpose, he thereby added a new peril to his work, which cannot be said to have arisen out of his employment.

In order for the plaintiff to come under the employers' liability act it must appear that the injury was incurred while he himself was employed in interstate commerce; and that his work at the time had a real and substantial connection with interstate commerce. (Barker v. Railway Co., 88 Kan. 767, 129 P. 1151; Thornbro v. Railway Co., 91 Kan. 684, 139 P. 410; Thornbro v. Railway Co., 92 Kan. 681, 142 P. 250; Bumstead v. Railway Co., 99 Kan. 589, 162 P. 347, and cases cited.)

It has twice been said that the test is:

"Was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it?" (Shanks v. Del. Lack. & West. R. R., 239 U.S. 556, 60 L.Ed. 436, 36 S.Ct. 188; Chi. Burlington & Q. R. R. v. Harrington, 241 U.S. 177, 60 L.Ed. 941, 36 S.Ct. 517.)

The plaintiff was checked in on November 16, 1916. The next morning he started to build a fire, and the accident occurred. He testified that he did not know whether he could sell a ticket to a point outside the state or not; that he did not know that he had such tickets to be filled out; and that if a person had come to buy an interstate ticket, he would have had to get information. The mere fact that the station was on an interstate road did not render plaintiff at the time a person engaged in interstate commerce. He had been working the evening before on some statements of state and interstate business comparative to the business of the year before, but the following morning, when starting the fire, he was not thus engaged. Erie R. R. Co. v. Winfield, 244 U.S. 170, 61 L.Ed. 1057, 37 S.Ct. 556, is cited as authority for holding the plaintiff to have been engaged in interstate commerce. In that case Justice Vandevanter, speaking for the court, said:

"In leaving the carrier's yard at the close of his day's work the deceased was but discharging a duty of his employment. . . . Like his trip through the yard to his engine in the morning, it was a necessary incident of his day's work and partook of the character of that work as a whole, for it was no more an incident of one part than of another. His day's work was in both interstate and intrastate commerce, and so when he was leaving the yard at the time of the injury his employment was in both." (p. 173.)

There the employee had actually been doing state and interstate work, while here the only work the plaintiff had done on the day in question was state work. True, his employment or the scope of duty which he might be called upon to do included both, but he had not, on the day in question, done any interstate work, and he was doing none when injured, nor was he going to or returning from duties of both kinds.

In Chi. Burlington & Q. R. R. v. Harrington, 241 U.S. 177, 60 L.Ed. 941, 36 S.Ct. 517, the employee was removing coal from storage tracks to coal chutes, which coal had been previously brought from another state and had been on hand a week or more. It was said not to be important whether Harrington had been or contemplated being...