Davison v. Martin K. Eby Const. Co.

• Decision Date: 06 May 1950
• Docket Number: No. 38048,38048
• Citation: 169 Kan. 256,218 P.2d 219
• Court: Kansas Supreme Court
• Parties: DAVISON v. MARTIN K. EBY CONST. CO., Inc. In re DAVISON.

Page 219

218 P.2d 219

169 Kan. 256

DAVISON v. MARTIN K. EBY CONST. CO., Inc.

In re DAVISON.

No. 38048.

Supreme Court of Kansas.

May 6, 1950.

Rehearing Denied June 16, 1950.

Syllabus by the Court.

1. An amendment to a petition enlarging the statement of personal injuries and increasing the relief sought does not introduce a new cause of action as far as the statute of limitations is concerned.

2. A workman under the compensation act, who during his employment sustained accidental injury alleged to have been caused by the negligence of a party

other than his employer may recover compensation from his employer and bring a common law action against the other party for his injuries. In such action the employer or his insurance carrier is not a proper party, and the compensation proceeding has no place in the pleadings or evidence in a common law action.

3. When a workman under the workmen's compensation act sustains an injury caused under circumstances creating a legal liability against some person other than his employer to pay damages, he may maintain a common law action for damages against such other person even though such other person be a sub-contractor of the workman's employer.

J. Ashford Manka, of Wichita, argued the cause, and Mark H. Adams, Charles E. Jones, Wm. I. Robinson, and Addison I. West, all of Wichita, were with him on the briefs, for appellant.

Wayne Coulson, of Wichita, argued the cause, and Hal M. Black, Howard T. Fleeson, Homer V. Gooing, Paul R. Kitch, Dale M. Stucky, and Donald R. Newkirk, all of Wichita, were with him on the briefs, for appellee.

The opinion of the court was delivered by

HARVEY, Chief Justice.

This was an action for damages for personal injuries alleged to have been caused by the negligence of defendant. The appeal is from an order overruling defendant's demurrer to plaintiff's petition as amended and supplemented and from orders sustaining plaintiff's motion to strike portions of the defendant's answer.

In his petition, filed March 4, 1949, plaintiff alleged the place of his residence; that defendant is a corporation organized under the laws of Kansas, with its principal place of business in Wichita; that on July 22, 1948, plaintiff was in the employ of Ebasco Services, Inc., a corporation, hereinafter called Ebasco, which was engaged in the construction of a compressor plant for the Kansas Gas and Electric Company at Ripley; that at the same time and place defendant, The Martin K. Eby Construction Company, Inc., a corporation hereinafter called Eby, was engaged in doing certain work in connection with the construction of the building as a sub-contractor of Ebasco; that about 10:30 a. m. of that day plaintiff was working in a ditch on the premises of the Kansas Gas and Electric Company, above mentioned, and defendant was engaged in masonry work on an overhead scaffold; that as plaintiff was so engaged in the course of his employment for Ebasco in digging the ditch the defendant, by and through its authorized agents, servants and employees, whose names are unknown to plaintiff but well known to defendant, negligently and carelessly dropped from the scaffold, which was located approximately forty feet above the ground, two bricks, one of which struck the plaintiff on the head, rendering him unconscious and throwing him forward in the ditch which he was engaged in digging; that plaintiff was removed to the hospital, but did not regain consciousness until the next day, and that he was confined in the hospital from July 22 to August 2, 1948. In paragraph 6 of the petition plaintiff's injuries were described and his weekly wages and doctor and hospital bills were stated. In the next paragraph plaintiff alleged that his injuries were the direct and proximate result of defendant's negligence in certain particulars, which were stated. In the prayer of the petition plaintiff asked judgment for $20,227.50. Defendant attacked the petition by motions and other pleadings, but the rulings of the court thereon are not presented here for review.

On October 3, 1949, before defendant had filed an answer, plaintiff filed an amendment and supplement to his petition in which the allegations originally made in paragraph 6 respecting plaintiff's injuries were extended to show injuries greater than those stated in the original petition, and the sum prayed for was increased in the prayer to $30,227.50.

This petition as amended and supplemented was attacked by motions and other pleadings, but the rulings of the court thereon are not presented for review here, and defendant filed an answer and plaintiff filed a reply, but these instruments are not before us for review.

On December 17, 1949, at a pre-trial conference, authorized by Chapter 318, Laws of 1949, plaintiff was given leave to file an additional amendment and supplement to paragraph 6 of the petition, which alleged further injuries to plaintiff than had been alleged in the original petition or in the first amendment and supplement thereto, and the amount prayed for was increased to $52,267.50. On the same date defendant was given ten days to plead to the petition as amended and supplemented, and twenty days to answer.

On December 30, 1949, defendant filed two motions. The first was a motion to strike the amendment and supplement to the petition upon the ground that it was filed more than a year after plaintiff's injuries and was barred under G.S.1947 Supp. 44-504. The other was an alternative motion to make as parties defendant Ebasco and the Travelers Insurance Company, its insurance carrier, upon the ground that under the petition as amended the sole and proximate cause of plaintiff's injuries were the acts, omissions, commissions and negligence on the part of plaintiff's employer, Ebasco, and in support of this motion and the reasons therefor defendant alleged that the plaintiff is not the sole real party in interest entitled to prosecute the action, as required by G.S.1935, 60-401; that the Ebasco is a foreign corporation doing business in Kansas, as is also the Travelers Insurance Company; that each of them has or claims to have an interest in the subject of the action and in obtaining the relief demanded, which claim of interest is adverse to plaintiff, and that they are indispensable parties under G.S.1935, 60-410 and 60-411; that Ebasco and this defendant were each engaged in construction work, operating subject to our workmen's compensation law; that plaintiff made a claim against Ebasco under the workmen's compensation law, and received an award. Attached to this motion was an exhibit containing all of the proceedings before the workmen's compensation commissioner in that proceeding and a letter from Ebasco's insurer to Eby, advising Eby the amount of the insurance paid as the award and expense and a claim of subrogation in the event of Eby's liability.

Defendant's motion to strike the amendment and supplement to plaintiff's petition, and also its alternative motion to make additional parties plaintiff or defendant, were considered by the court and denied. Defendant then filed an answer which contained a general denial, except as to matters specifically admitted, then admitted the allegations of the first three paragraphs of the petition relative to the parties and their employment, pleaded that any damages sought to be recovered under a pleading filed subsequent to July 22, 1949, were barred by the provisions of G.S.1947 Supp. 44-504, and in the third paragraph alleged that if plaintiff suffered any injuries, as alleged in his petition, the same occurred at a time and place where plaintiff and defendant were each engaged in the course of employment as employees and sub-contractors of Ebasco, which was operating under the workmen's compensation act, G.S.1935 and G.S.1947 Supp. 44-501 et seq., which act afforded plaintiff an exclusive remedy, and that the district court had no jurisdiction; in the fourth paragraph alleged that plaintiff and defendant were engaged as co-workers or fellow-servants for Ebasco at the time of plaintiff's alleged injury, and that any right of action plaintiff had is limited by the workmen's compensation law, and that the district court was without jurisdiction. The fifth paragraph contained allegations to the effect that Ebasco and its insurer were necessary parties to the action. The sixth paragraph alleged that on July 22, 1948, the plaintiff was engaged in common employment with defendant in the construction of the building, described the nature of the work, and alleged negligence on the part of Ebasco and the plaintiff which barred plaintiff's recovery, and the seventh paragraph alleged the assumption of risk. The prayer of the answer was that plaintiff be denied any recovery under the allegations contained in the amendment and supplemental petition filed subsequent to July 22, 1949, for the reason that any action thereunder is barred by the statute of limitations; that the action be dismissed for the reason that the court is without jurisdiction, or in the alternative that Ebasco and Travelers Insurance Company be made parties; that plaintiff have and recover nought from defendant by reason of his alleged cause of action; that defendant recover its costs, and that defendant recover such other and further relief to which it may be entitled.

Plaintiff moved to strike the third, fourth, fifth, sixth and seventh paragraphs of defendant's answer, and this motion was in substance sustained by the court. Defendant then demurred to plaintiff's petition on practically all of the statutory grounds. The demurrer was considered by the court and overruled.

On February 20, 1950, J. O. Wilson filed a motion in which he advised the court that plaintiff was on that date adjudged incompetent by the probate court of Sedgwick county and that he had been appointed guardian of the estate of the plaintiff, and asked that he be substituted as party-plaintiff for Charles L. Davison, an...