Carrington v. British American Oil Producing Co.
| Decision Date | 12 June 1943 |
| Docket Number | 35845. |
| Citation | 138 P.2d 463,157 Kan. 101 |
| Parties | CARRINGTON et al. v. BRITISH AMERICAN OIL PRODUCING CO. et al. |
| Court | Kansas Supreme Court |
[Copyrighted Material Omitted]
Syllabus by the Court.
Assignments of error not urged or relied upon were "abandoned".
Where no relief was sought against parties served with notice of appeal, the appeal would be dismissed as to such appellees.
The Supreme Court rule requiring appellant's abstract to include specification of errors complained of, separately set forth and numbered, is designed to promote definiteness fairness, and orderly procedure on review. Supreme Court Rules, rule 5.
The purpose of Supreme Court rule requiring appellant's abstract to include a specification of errors complained of separately set forth and numbered, is to advise both appellee and the Supreme Court concerning the particular error or errors which appellant claims trial court committed in rendering its judgment. Supreme Court Rules, rule 5.
Failure to comply with Supreme Court rule requiring appellant's abstract to include a specification of errors complained of, separately set forth and numbered, is sufficient to justify dismissal of the appeal. Supreme Court Rules, rule 5.
District courts, upon appeal from decisions of compensation commissioner under Workmen's Compensation Act, weigh the evidence, but Supreme Court is limited, upon review, to questions of law. Gen.St. 1935, 44-556.
Whether findings of fact in compensation case are supported by competent, substantial evidence is a "question of law" as distinguished from a "question of fact". Gen.St.1935, 44-556.
Finding that deceased employee at time he was killed in an accident while working at oil well was employee of company engaged in business of servicing oil wells, and not of company which had contract with owner of oil and gas lease to drill a well, so that company engaged in servicing oil wells was compelled to pay compensation for employee's death, was supported by competent, substantial evidence. Gen. St.1935, 44-556.
Evidence supported finding that two minor children of deceased employee by a prior marriage who were living with their maternal grandfather were "dependents" of employee at time of his death, so as to be entitled to share award for employee's death with employee's widow and minor children by second marriage. Gen.St.1935, 44-508 (j).
1. Assignments of error, not urged or in any way relied upon by appellants, are treated, upon appeal, as abandoned.
2. Where no relief is sought against parties served with notice of appeal, the appeal will be dismissed as to such appellees.
3. Failure to comply with Rule 5 of this court, which provides for inclusion in the abstract of a specification of the errors complained of, separately set forth and numbered, is sufficient to justify dismissal of the appeal.
4. Review by this court of any findings or orders of district courts, under the Workmen's Compensation Act, is limited to questions of law, G.S.1935, 44-556, and the general rule is followed that appellate courts do not weigh conflicting evidence and that findings of fact which are supported by competent, substantial evidence will not be disturbed.
5. Whether findings of fact are supported by competent, substantial evidence is a question of law.
6. Record examined in a proceeding wherein judgment and award were entered under the Workmen's Compensation Act, and no error found.
Appeal from District Court, Stafford County; Robert Garvin, Judge.
Judgment in accordance with opinion.
John Henry Lewis and S. R. Blackburn, both of Great Bend, for appellants D. H. Cook & Co. and Casualty Reciprocal Exchange (Bruce Dodson).
O. L. Barlow, of Hominy, Okl., and Harry G. Wiles, of St. John, for appellants Mrs. Opal Carrington and others.
George B. Powers, of Wichita (John F. Eberhardt and Foulston, Siefkin, Bartlett & Powers, all of Wichita, on the brief), for appellees British American Oil Producing Co. and Standard Accident Insurance Co.
W. A. Kahrs, of Wichita (Austin M. Cowan, C. A. McCorkle, Robert H. Nelson, and Henry L. Butler, all of Wichita, on the brief), for appellees Harbar Drilling Co. and Insurer's Indemnity Co.
J. B. Patterson, of Wichita (Hershberger, Patterson & Hook, of Wichita, on the brief), for appellees Ray Coffey, d/b/a Coffey Drilling Co., and Employers Mutual Casualty Co.
Evart Garvin, of St. John, for appellees Thelma Maud Carrington and R. J. Carrington.
This is a workman's compensation case growing out of the death of an oil field worker. Claims were filed by two sets of claimants and four companies or individuals were named as respondents. The commissioner and the district court, upon appeal, made an award in favor of both sets of claimants but against only one of the respondents. The respondent company against which the award was entered appealed on the sole ground that the judgment should also have been against one of the other respondents. It did not attack the award as far as the claimants were concerned. There is also a "cross appeal"-- more accurately an independent appeal--by one set of claimants against the other set of claimants. The claimants do not complain that the award was against only one of the respondents.
Ralph M. Carrington, an experienced oil field worker, was killed in an accident while working at a well in Stafford county; Kansas, on January 20, 1942. One application for compensation was filed by Opal Carrington, the widow, and her four minor children, and another by two minor children of the deceased by a former marriage-- Thelma, aged 14, and R. J., aged 11, action being brought in their behalf by J. E. Wyatt, their grandfather and "next friend".
In both applications four companies or persons and their insurance carriers were named as respondents. The principals were:
It is agreed that all respondents were under the act, that the accident arose out of and in the course of the employment, and no complaint is made as to the amount of the award.
The trial court found--following substantially the findings of the commissioner --that the deceased was the employee of Cook & Company and was working for them when the accident occurred; that the other respondents were not liable; that both sets of claimants were dependent upon the deceased for support. An award of $4,000 was divided, $1,500 going to the widow, $2,000 to her four children, and $500 to the two minor children by the former marriage.
We first consider motions to dismiss Cook & Company's appeal. One such motion, by British American and Coffey is based on three grounds: First, that appellant's abstract and brief were not timely served upon them; second, that appellant's abstract does not include a specification of errors complained of; and third, that no relief is asked against them and no issue presented concerns them. Another motion to dismiss, by Harbar, is based on the first and second grounds above stated.
We note briefly the first ground, asserted, for dismissal. No abstracts or briefs having been filed at the time this appeal was originally set for hearing in March of this year respondents filed a motion to dismiss the appeal. The motion was overruled, the hearing set for May 5, and the appellants given until April 23 to serve copy of abstract and brief. Such copies were served on April 28, which was five days late. However, we prefer to pass to the third and more important ground for dismissal asserted by British American and Coffey.
Brief of appellant plainly shows that the only relief it seeks is against the Harbar Drilling Company. Its only complaint is that the court found it to be an independent contractor and sole employer of Carrington and refused to find that Carrington was also working, at the time of the accident, as a special employee of Harbar, the well drillers. Since no relief is sought against British American, owner of the oil lease, or against Coffey, who had rented some equipment to Harbar, and no question as to their liability is either briefed or argued, the appeal must be considered abandoned as to them and will be dismissed. Tawney v. Blankenship, 150 Kan. 41, 45, 90 P.2d 1111, and cases cited.
We next consider the failure of appellant to comply with Rule 5 of this court, which provides: "The appellant's abstract shall include a specification of the errors complained of, separately set forth and numbered." 153 Kan. XI.
In the recent case of Lambeth v. Bogart, 155 Kan. 413, 415 125 P.2d 377, 379, it was said: ...
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