Coble v. Williams
| Decision Date | 09 April 1955 |
| Docket Number | No. 39725,39725 |
| Citation | 282 P.2d 425,177 Kan. 743 |
| Parties | Marion D. COBLE, Appellee and Cross-Appellant, v. Bruce WILLIAMS, d/b/a Bruce Williams Laboratories, and Employers Casualty Company, Appellants and Cross-Appellees, National Lead Company, St. Louis Smelting and Refining Division, Cross-Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. In an action under the Workmen's Compensation Act it is the function of the trial court to pass upon the facts, and its factual findings cannot be disturbed on appellate review if they are supported by any substantial competent evidence.
2. Where an employer under contract agrees to perform an integral part of the business of his principal under G.S.1949, 44-503, he is bound to pay compensation to a workman injured in the performance of such work.
3. The provisions of G.S.1949, 44-507, are mandatory upon one who undertakes to engage in the mining business or an integral part thereof, and he is subject to the provisions of the Workmen's Compensation Act without regard to the number of workmen employed.
4. An employer operating and doing business in this state so as to come within the provisions of the Workmen's Compensation Act, is liable for injuries sustained by an employee while engaged in the due course of his business within the state, even though the contract of employment is made without the state.
5. Under the facts as related in the opinion, where a workman proceeds against his immediate employer to recover compensation for his injuries sustained, he may not join the principal in the same action as an additional respondent and recover an award against both the subcontractor and the principal.
Roy Kirby, Coffeyville, Clement H. Hall, Coffeyville, and F. H. Richart, Joplin, Mo., on the briefs, for appellants.
Sylvan Bruner, Pittsburg, Joe L. Henbest, Columbus, and Morris Matuska, Pittsburg, on the briefs, for appellee and cross-appellant Marion D. Coble.
Marc Boss, Columbus, Ben T. Owens, Miami, Okl., on the briefs, for cross-appellee National Lead Co.
This was an action by claimant Marion D. Coble, appellee and cross-appellant, hereinafter referred to as claimant, to recover compensation under the Workmen's Compensation Act against respondent appellant Bruce Williams, doing business as Bruce Williams Laboratories, his immediate employer, hereinafter referred to as Williams and respondent, and Employers Casualy Company, its insurance carrier, and appellee National Lead Company, St. Louis Smelting and Refining Division, hereinafter referred to as Lead Company.
The commissioner of Workmen's Compensation denied compensation to claimant from either of the respondents. On appeal, the district court considered the record made before the commissioner, and allowed claimant compensation against Williams and his insurance carrier, but sustained the order of the commissioner denying compensation as against the Lead Company. Williams and his insurance carrier have appealed from the judgment of the trial court, and claimant has cross-appealed from the order denying compensation against the Lead Company.
There is little dispute concerning the facts. The Lead Company was engaged in the mining business, and operating what was known as the Ballard mine in Kansas. As a part of its operation, the Lead Company had at the Ballard mine an underground lead and zinc mine and a mill in which it treated ore from the mine and the district. It was enagaged in an underground mining operation, including the treating and processing of ores after they were brought to the surface. Assaying of metals produced was done in connection with the mining operation to determine where to mine for metallurgic control within the benefication process and for the settlement of royalties on ores mined from leased ground. The Lead Company regularly had its assaying work done on the metals brought out of the ground. After the ore was brought to the surface, the crude mining rock was crushed and sampled, and the assaying was done on the samples. The samples were obtained by automatic samplers and occasionally spot checked with hand samplers. The Lead Company employed men to procure these samples at the mill, it being a daily process. After they were obtained, they were placed in various receptacles and picked up by the Bruce Williams Laboratories for assaying at Joplin, Missouri. The number of samples prepared for such assaying varied from twenty to fifty per day, and the information contained from the assaying report from Williams was used in the mining process. After the Lead Company employees put the samples in the receptacles, the samples were tagged and numbered. The Lead Company determined for what purpose the samples were to be assayed.
Respondent and appellant Williams, a resident of Joplin, operated a testing laboratory under the trade name of Bruce Williams Laboratories. In this business, he made independent tests, both physical and chemical, on different materials, ores and minerals. His operations includee the collecting of ore samples and the making of assays of said ores produced in the mines of the tri-state area of Kansas, Missouri and Oklahoma. For several years, Williams had been doing assaying work for the Lead Company of ore and ore samples produced at the Ballard mine of the Lead Company in Cherokee county under an oral contract between Williams and the Lead Company and, after making the tests, reports were made to the Lead Company by Williams to be used in its mining operation.
Claimant Coble was an employee of Williams, and his duties required him to go to the Ballard mine of the Lead Company and pick up ore samples obtained from ores produced in its mining operations, load them into a pickup truck at the mine and transport them to Williams Testing Laboratory at Joplin, where these samples were processed and assayed for the Lead Company, the findings from the assays being used as a part of its mining operations. These samples of ore were left by the mining company at a specified place about the mine to be gathered by the claimant, who spent from forty minutes to two hours on the Lead Company's premises each day, part of claimant's duties being to see that the samples and the containers were properly tagged and arranged. On July 20, 1953, while claimant was engaged in loading a container of ore samples weighing some 100 pounds into his truck furnished by Williams, he sustained an injury to his back for which claim was made. The question of the injuries and the amount of compensation are not in issue on this appeal. The claimant continued to work a few days under pain and difficulty, and on July 25 was unable to continue. Subsequently, on August 11, Williams sent claimant to doctors and a clinic in Joplin where medical treatment for his injuries was given, and such treatment was containued until the trial of this action. Claimant made demand for compensation on Williams on November 2, 1953, and filed his claim before the Workmen's Compensation Commissioner on November 17, 1953. At the hearing on this claim before the Commissioner on December 29, testimony was taken and the case continued until January 11, 1954, when claimant filed an amended application for compensation enlarging his claim, naming the Lead Company as an additional responent.
After considering the entire record, the trial court in a well-considered memorandum opinion found a principal-contractor relationship existed between Williams and the Lead Company on the basis that the work being performed by claimant was a part of the mining business being carried on by the Lead Company; that timely claim for compensation had been made by claimant against Williams, his immediate employer, but no claim had been made against the Lead Company within the period provided by statute, and therefore the Lead Company was not liable to claimant in the proceedings.
It is Williams' contention that he did not elect to come within the provisions of the Workmen's Compensation Act of Kansas, did not have five employees in Kansas; that the work being performed by him was not hazardous nor a part of the Lead Company's mining business and, accordingly, he was not liable under the Act.
As stated, the trial court found a principal-contractor relationship between Williams and the Lead Company, and that the work being performed by Williams was a part of the trade or business of mining being carried on by the Lead Company. In a workmen's compensation case, it is the function of the trial court to pass upon the facts, and its factual findings cannot be disturbed on appellate review if they are supported by any substantial, competent evidence. Whether the judgment of the trial court in such an action is supported by substantial, competent evidence is a question of law as distinguished from a question of fact. G.S.1949, 44-556; Silvers v. Wakefield, 176 Kan. 259, 270 P.2d 259; McDonald v. Rader, 177 Kan. 249, 277 P.2d 652, and cases therein cited.
In determining whether the principal-contractor relationship existed between Williams and the Lead Company, and to whom claimant should look for compensation, the first test to be applied is, 'Whose work was being performed?' out of which the injury arose, and if such work was an integral part or a reasonable incident of the trade or business of one person who undertook to have the work performed for him by another, then the relationship of principal-contractor exists. See Bright v. Bragg, 175 Kan. 404, at page 410, 264 P.2d 494, and cases therein cited. The injury complained of occurred on the premises of the Lead Company just outside the crushing plant at its mill. Claimant's evidence tended to show that the securing of ore samples was an important factor in the successful operation of the mining company's business. It indicated that in some instances assays were...
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