Bright v. Bragg

• Decision Date: 12 December 1953
• Docket Number: No. 39089,39089
• Citation: 264 P.2d 494,175 Kan. 404
• Parties: BRIGHT v. BRAGG et al.
• Court: Kansas Supreme Court

Page 494

264 P.2d 494

175 Kan. 404

BRIGHT v. BRAGG et al.

No. 39089.

Supreme Court of Kansas.

Dec. 12, 1953.

Syllabus by the Court

1. In determining to whom a workman may look for compensation the first test is, 'Whose work was being performed', out of which the injury arose. If such work was an integral part or a reasonable incident of the trade or business of one person which he undertook to have performed for him by another the workman may look to the first person for compensation, provided such person is operating under the workmen's compensation act.

2. In order to determine the actual relation of the parties under any employment courts do not regard a single fact as conclusive but will look to all the facts and circumstances involved in the particular case.

3. Our workmen's compensation act does not differentiate between special and general employers. G.S.1949, 44-508(h). In this state, there being no provision to the contrary, the workman may look to either or both employers for compensation.

4. The record, set forth in the opinion, examined, considered and held: The defendant in an action by a workman to recover damages was a special employer of the workman with respect to the particular work out of which the injury arose and the workman could have asserted a valid claim for compensation against him.

5. Where a workman has a valid claim against an employer for compensation that remedy under the workmen's compensation act is exclusive, G.S.1949, 44-501, and he may not maintain an action for damages against him under the provisions of G.S.1949, 44-504.

6. This court is committed to the rule of liberal construction of the compensation act in order to award compensation to workmen where it is reasonably possible to do so.

7. Consistency of decisions involving interpretation of the workmen's compensation act cannot be maintained by construing the act liberally in favor of compensation where the workman seeks compensation and strictly against compensation when he seeks damages.

Payne H. Ratner, Jr., Wichita, argued the cause, and Payne H. Ratner, Louise Mattox, Gerald L. Michaud, Russell Cranmer, Dale B. Stinson, Jr., Starr Calvert, Jr., Carroll F. Pope and Keith Eales, Wichita were with him on the briefs, for appellant.

Donald R. Newkirk, Wichita, argued the cause, and Howard T. Fleeson, Homer V. Gooing, Wayne Coulson, Paul R. Kitch, Dale M. Stucky, Gerrit H. Wormhoudt and Theodore C. Geisert, Wichita, were with him on the briefs, for appellee.

Sylvan Bruner, L. M. Resler, Morris Matuska, and Don Musser, Pittsburg, and Walter B. Patterson and Frank O'Brien, Fort Scott, were on the briefs, amicus curiae.

WEDELL, Justice.

This was an action against Clate W. Bragg, doing business as Bragg Furnace Company, to recover damages for personal injuries sustained by plaintiff on defendant's premises where he helped unload and stack sheet metal under the latter's direction and supervision.

The trial court sustained defendant's demurrer to plaintiff's evidence. Plaintiff appeals.

The defendant was engaged in the trade or business of sheet metal repairing and installation of heating units. He had elected to operate within the provisions of the workmen's compensation act.

Appellant's evidence disclosed, in substance, the following facts:

Appellant was a truck driver of intervenor, Advance Furnace Company, which sold three loads of sheet metal to appellee to be delivered to and unloaded on appellee's premises. Appellant's principal duties were loading, hauling and unloading furnaces and sheet metal for intervenor. He recovered workmen's compensation from intervenor. The latter intervened and sought to be subrogated to any judgment which might be rendered in favor of appellant to the extent of the compensation award made against the intervenor.

On November 8, 1950, appellant and Charles McDonald, employees of intervenor, delivered, unloaded and stacked two loads of sheet metal on appellee's premises at the particular place on appellee's premises and in the manner directed by appellee. Upon arriving at appellee's place of business they contacted appellee's supervisor, a Mr. Erickson, to ascertain where and how the sheet metal was to be unloaded and stacked. The latter directed the first load be placed in certain steel and wood racks in appellee's workshop. It was placed and stacked as directed. Appellee's supervisor ordered the second load be handled in a different manner. He direct it be placed flat on the floor of the workshop. Appellant and his fellow employee, McDonald, followed the directions. Appellee advised appellant there was no room in the workshop to lay the third load flat on the floor for the reason it would be in the way of workmen. He advised appellant to bring the third load stating he would arrange a place for it. The next day appellant and McDonald loaded the rest of the metal, consisting of 110 sheets, which weighed approximately three thousand pounds. Intervenor directed they take another man to help with that load. A third man by the name of Yeager accompanied them to assist in the unloading and stacking. The three workmen proceeded to appellee's place of business. Upon arrival McDonald inquired of appellee's supervisor where he wanted the metal placed. He was advised to follow and was shown where to unload the metal. This place was a storage barn a short distance from the workshop. Appellee's supervisor and McDonald directed appellant to back the truck up to the door of the storage barn.

The sheet metal was thirty-six inches wide, about eight or nine or probably 10 feet long, 'real' thin and difficult to handle. Each sheet weighed about thirty pounds. The only sheet metal appellant hauled was when he would take it to appellee. Sheet metal was used by appellee to make furnaces.

Stoves, furnaces, converters and boxes were stored in the barn leaving a little less than thirty-six inches of floor space on which to lay the metal flat. Appellee's supervisor directed it be laid on edge and against the wall on the east side of the barn. Appellant and his two other fellow employees followed the instructions. Two men handled the unloading and stacking of each sheet of metal. They took one sheet at a time. Appellee's supervisor and one of intervenor's men worked together. The other two men did likewise. After each sheet was stacked as directed by appellee's supervisor the men would come out of a smaller door in order to avoid interference with each others' work. During the stacking process appellee's supervisor on several occasions used a 2X4 or 2X6 to 'kick' the bottom of the sheets back towards the wall. This procedure was witnessed by both appellant and McDonald. It was in this manner that appellee's supervisor and intervenor's employees unloaded and stacked the sheet metal in the narrow space provided.

After the unloading and stacking process had been completed appellee's supervisor proceeded to count the sheets of metal by what the witnesses termed 'leafing through them' or pulling them apart to count them. At the time appellee's supervisor started to count the sheets at the north end of the stack appellant was standing on a dirt floor beyond the north end of the stack as was also one of his fellow employees, Yeager. The other employee of intervenor, McDonald, was back in a little space where he had gone to keep out of the wind. Appellee's supervisor determined he could not count the sheets from the north end and moved to the south end of the stack. The supervisor had his back to appellant when he moved to the south end and while counting the sheets. Appellant then moved into the narrow space beside the stack and continued to stand at about the center of the stack, with his left hand on the sheets, watching the supervisor count. Appellant said nothing to the supervisor during that period. Appellant was waiting for the supervisor to sign the bill of lading. While the supervisor was counting the stack started to fall. Appellant got back as far as he could but was unable to escape. He sustained severe injuries to his left foot, his right leg and substantial general disability.

Appellee's demurrer, in substance, was based on the grounds: Appellant's evidence affirmatively discloses his recovery for common law damages was precluded by the workmen's compensation act; appellant's evidence failed to disclose appellee was negligent; appellant assumed the risk of conditions which occasioned his injury; if appellee was negligent appellant was likewise guilty of negligence and was barred from recovery.

Touching his right to recover damages instead of compensation appellant relies on G.S.1949, 44-504 of the workmen's compensation act, the pertinent portion of which reads:

'When the injury or death for which compensation is payable under this act was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured workman * * * shall have the right to take compensation under the act and pursue his * * * remedy by proper action in a court of competent jurisdiction against such other person.' (Our italics.)

Appellant argues the question of appellee's negligence and of appellant's contributory negligence were questions on which reasonable minds might differ and, therefore, those questions should have been submitted to the jury. On the other hand appellee contends that under appellant's evidence he could have recovered compensation from appellee and, therefore, that was his exclusive remedy.

It, of course, is not debatable that if appellant could recover compensation from appellee it was his exclusive remedy. G.S.1949, 44-501; Echord v. Rush, 124 Kan. 521, 261 P. 820; Lessley v. Kansas Power & Light Co., 171 Kan. 197, 203, 231 P.2d 239, and cases therein cited. In that event the question of negligence of either party would become immaterial. We shall, therefore, first consider whether appellant had a valid claim against appellee...