Cox v. The Kansas City Refining Company

• Decision Date: 12 February 1921
• Docket Number: 22,942
• Citation: 195 P. 863,108 Kan. 320
• Parties: W. C. COX, Appellee, v. THE KANSAS CITY REFINING COMPANY, Appellant
• Court: Kansas Supreme Court

195 P. 863

108 Kan. 320

W. C. COX, Appellee, v. THE KANSAS CITY REFINING COMPANY, Appellant

No. 22,942

Supreme Court of Kansas

February 12, 1921

Decided January, 1921.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

COMPENSATION ACT--Workman Afflicted with Epileptic Fits--Injured by Falling--Accident Did Not Arise Out of His Employment. A workman who had long been afflicted with periodical recurrences of epilepsy was seized with an epileptic fit in the course of his employment in a refining plant, but such epileptic fit was not traceable to his work nor did his employment contribute in any measure toward bringing on such affliction. During his epileptic seizure the workman became unconscious and fell against some hot pipes and severely injured his back. Held, that the accident and consequent injury did not arise out of his employment but out of his affliction, and compensation for his injuries cannot be awarded against his employer.

A. L. Berger, of Kansas City, and J. W. Rogers, of Kansas City, Mo., for the appellant.

David F. Carson, and W. J. McCarty, both of Kansas City, for the appellee.

OPINION

DAWSON, J.:

This was an action for compensation for an injury sustained by plaintiff while in the defendant's employment.

Judgment was entered for plaintiff, and the principal contention in this appeal is whether the injury sustained by plaintiff was a "personal injury by accident arising out of and in the course of employment," within the terms of the workmen's compensation act. (Laws 1917, ch. 226, § 27.)

The plaintiff testified that he was a common laborer, 49 years old, and that he was subject to epileptic fits, and had been afflicted with such fits about once a month ever since he was 21 or 22 years of age. He had been employed at the defendant's refinery for a few weeks. During that time on one occasion he had been put at work on top of a building, but owing to his affliction he knew it was dangerous work for him, and he decided to quit.

"I came down off that building at noon, and went to Mr. Taylor and I says, 'You give me my time, and I will quit and not get hurt,' I says, 'I won't work in these dangerous places; I won't risk it.' He says, 'I can't let you go, Cox, I have got to keep you here; I need the labor too bad, and I am going to keep you.' I told him why I was going to quit, I said, 'I have epileptic spells, and if I work in these dangerous places, I am going to quit. I want my money, and I will go home.' I went home that evening, he did not give me my money, if he had, I would have gone home; he did not send me back up on that building again; he put me to work right in the yard, outside the inclosure; shoveling concrete and such as that, monkeying around on the ground, just like he said."

Some days later while plaintiff was digging a trench in the ground, he desired to get a drink of water. The water was about 125 or 150 feet away. When he left the ditch to go for the water, his periodical epilepsy overtook him, his mind left him as he said it always did at such times, and when his senses returned he was about 75 feet away from where he had been at work. He had fallen against some hot pipes which came out of a building and ran down into the ground near the path towards which the drinking water was located. The hot pipes severely and permanently injured his back.

"Q. Now, on the day you were hurt, you was working in the ditches there? A. Yes, sir. They had a water boy there, but he wasn't around where we was. He would come around there and bring us water. We couldn't call him. He wasn't there when I wanted a drink. It was just like I would say to myself, 'I want a drink of water'--and that is the last I remember. I started off by myself to get a drink of water, and when I went a little distance, I got dizzy and lost my mind. Had one of those spells while walking along, and while I had one of those spells I lost my head.

"Q. And while in that condition you then fell, didn't you? A. Yes, sir.

"Q. And your fall was on account of your epileptic spells? A. Sure."

. . . .

"Q. So you started off by yourself to get a drink of water, and when you went a little distance, you got dizzy? A. Lost my mind.

"Q. And had one of those spells. That is the first thing you remember, while you was walking along? A. Yes, sir.

"Q. And while you had one of those spells, you, of course, lost your head? A. Yes, sir."

. . . .

"Q. You didn't fall over anything--that is, you didn't slip on anything and fall, but you fell on account of your epileptic spells? A. Sure; overbalanced.

"Q. Overbalanced by virtue of your epilepsy? A. Yes, sir.

"Q. And you happened to fall on some hot pipes that are not in the ground? A. Yes; there is four of them. . . .

"These spells last sometimes about three-quarters of an hour, and sometimes two hours; according to how hard they are."

Under the facts and circumstances thus narrated by the plaintiff himself, can it be said that the injuries sustained by him arose out of and in the course of his employment? "In the course of"--yes. If he had died of heart failure, or had been stunned by lightning, assaulted by a drunken stranger, or shot by a maniac, while at work, such mishap would have arisen in the course of his employment. "In the course of his employment," as a phrase, simply means that it happened while he was at work in his employer's service. The phrase relates to the time, place, and circumstances under which the accident occurred. But it is not sufficient to impose liability upon the injured workman's employer that the injury arose in the course of the employment. There is another and more important prerequisite. The injury must also arise out of the employment. It must arise because of it, or in some reasonable way be traceable to it. The injury must in some sense be due to the employment. The philosophy on which the workmen's compensation act is founded is that the wear and tear of human beings in modern industry should be charged to the industry just as the wear and tear of machinery has always been charged. And while such compensation is primarily chargeable to the industry and consequently to the employer or owner of the industry, eventually it becomes a part of the fair money cost of the industrial product, and to be paid for by the general public patronizing such product.

In McRoberts v. Zinc Co., 93 Kan. 364, 366, 144 P. 247, it was said:

"In the enactment of the compensation law the legislature recognized that the common-law remedies for injuries sustained in certain hazardous industries were inadequate, unscientific and unjust, and therefore a substitute was provided by which a more equitable adjustment of such loss could be made under a system which was intended largely to eliminate controversies and litigation and place the burden of accidental injuries incident to such employments upon the industries themselves, or rather upon the consumers of the products of such industries."

"There is no doubt that it was the legislative intent to compensate workmen for injuries resulting from industrial accidents, and that such compensation is charged against the industry because [with or without fault] it is responsible for the injury." (Klawinski v. Lake Shore, etc., R. Co., 185 Mich. 643, 645-6, 152 N.W. 213; L. R. A. 1916 A, 342, 343.)

( Industrial Commission v. AEtna Co., 64 Colo. 480, 3 A. L. R. 1336, 1339, 174 P. 589.)

But in order to charge the industry with compensation for the workman's injury, such injury must in some sense, in some degree, be due to the workman's employment in the industry.

In discussing the phrase "out of the employment," in McNicol's Case, 215 Mass. 497, 499, L. R. A. 1916 A, 306, 307, it was said:

"It 'arises out of' the employment, when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. . . . But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence."

In Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 P. 212, it was said:

"The accidents arising out of the employment of the person injured are those in which it is possible to trace the injury to the nature of the employee's work, or to the risks to which the employer's business exposes the employee. The accident must be one resulting from a risk reasonably incident to the employment. It 'arises out of' the occupation where there is a causal connection between the conditions under which the servant works and the resulting injury. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk...