Duncan v. Perry Packing Co.

• Decision Date: 09 November 1946
• Docket Number: 36640.
• Citation: 174 P.2d 78,162 Kan. 79
• Parties: DUNCAN v. PERRY PACKING CO. et al.
• Court: Kansas Supreme Court

174 P.2d 78

162 Kan. 79

DUNCAN v. PERRY PACKING CO. et al.

No. 36640.

Supreme Court of Kansas

November 9, 1946

Rehearing Denied Dec. 13, 1946.

Appeal from the District Court, Riley County; Edgar C. Bennett Judge.

Action by Howard Duncan against Perry Packing Company and others for wrongful death of plaintiff's wife. From an order sustaining a demurrer to pltinff's petition on the ground that the injury resulting in death was within the Workmen's Compensation Act, and that therefore a common-law action for damages would not lie, the plaintiff appeals.

Order affirmed.

HOCH and SMITH, JJ., dissenting.

Syllabus by the Court.

1. The Workmen's Compensation Act is complete within itself, and the remedies therein provided are exclusive as to all injuries within the purview of the Act.

2. If an employee's injury is compensable under the Workmen's Compensation Act, a common-law action to recover damages for the injury will not lie against his employer.

3. If the injury of an employee who is under the Workmen's Compensation Act is in other respects 'a personal injury by accident arising out of and in the course of employment', the fact that such injury was occasioned by acts or conduct constituting wantonness on the part of the employer does not take such injury out from under the Act and a common-law action to recover damages for such injury will not lie.

4. In a common-law action the plaintiff sought to recover damages for the wrongful death of his wife who was an employee of the defendants. Examining the petition as against demurrer, it is held that under the allegations of the petition as set out in the opinion, the injury and death of the employee were compensable under the Workmen's Compensation Act; that a common-law action to recover damages therefor would not lie and the demurrer was properly sustained.

Robert Stone, of Topeka, and Gordon Watts, of Wagoner, Okl. (Irving M. Platt, of Junction City, and James A McClure, Robert L. Webb, Beryl R. Johnson, and Relph W. Oman, all of Topeka, on the brief), for appellant.

Robert E. Russell, of Topeka (Hal E. Harlan and Ambrose Johnston, both of Manhattan, and Clayton E. Kline, M. F. Cosgrove, and Balfour S. Jeffrey, all of Topeka, on the brief), for appellees.

HOCH Justice.

This was a common law action against an employer to recover damages for the wrongful death of an employee, the wife of the plaintiff. The case is here on appeal by the plaintiff from an order sustaining the defendants' demurrer to the petition. The demurrer was sustained on the ground that the injury resulting in death was within the Workmen's Compensation Act, Gen.St.1935, 44-501 et seq., as amended, and that therefore a common law action for damages would not lie. The controlling question is whether the injury was a 'personal injury by accident arising out of and in the course of employment' within the meaning of the Workmen's Compensation Act. G.S.1935, 44-501.

The case being here on demurrer, all facts well pleaded in the petition must be taken as true. The pertinent facts, disclosed by the allegations, may be summarized as follows: The defendant company, the Perry Packing Company, is a Kansas corporation which has for many years been engaged in the poultry and cold storage business in Manhattan, Kansas; the three individual defendants named were the general manager, the superinendent of the poultry department who was in general charge of the picking room where the injury occurred, and the foreman of the picking room who was subject only to the order and direction of the superintendent and general manager; the company was operating under the Kansas Workmen's Compensation Act and the employee whose wrongful death is alleged had not elected not to come within the Workmen's Compensation Act; at all times in question, there was in force in Manhattan an ordinance entitled Electrical Ordinance, which ordinance was referred to and made a part of the petition; said ordinance provided that all electric light, heat or power wires or apparatus should be installed in accordance with the requirements of the National Electric Code, provided that in certain cases deviation from such rules and requirements might be authorized by the electrical inspector; under the ordinance, permits for electrical construction work may be issued only to master electricians who have complied with the provisions of the ordinance, and every person entering upon any electrical construction or erection of any light, heat or power wires in any new building in Manhattan--with certain exceptions not here material--is required to make application on forms furnished by the city to the electrical inspector for a construction permit before proceeding with such construction; the ordinance further provides that 'all service wires shall be in conduit, and all main switches shall be enclosed in an approved steel cabinet of a safety enclosed type, and operated from the outside of the enclosure, and so marked as to indicate plainly, without opening the enclosure, whether the switch is in the 'on' or 'off' position. All service wires to be not less than No. 10 B. & S. gauge'; the ordinance further provides that 'approved metallic conduit, armored cable or metal moulding shall be required * * * in any installation requiring more than three feet of conductor in old buildings or additions thereto * * * and all such conduit, armored cable or metal moulding shall be installed according to the rules of the National Electric Code'; the defendants failed to comply with said section 10 and with the provisions of said National Electric Code because they did not install the said machine referred to, or the wires or apparatus connected with said machine, in accordance with the rules and requirements of said section 10 or of said National Electric Code; the electrical inspector did not authorize any deviation from the rules and requirements, nor did the defendants apply for or obtain any permit for installation of the machine here involved and did not install it in accordance with above recited provisions of said ordinance, and 'did not maintain said electrical apparatus in accordance with said ordinance in that the service wires were not placed in conduits, or metallic conduits, armored cables, or metal moulding, or comply with any other similar provisions of said ordinance, but maintained the said machine in an unsafe and dangerous condition'; for more than four years prior to July 17, 1944, the date of the fatal injury involved, the defendant company had maintained an electrically operated machine in the picking room of its plant, which machine--being called a buffer--had a large cylindrical shaped part about two feet in diameter and six feet in circumference and about three or four feet long and equipped with rubber teeth; near one end of the machine was a steel platform large enough for one person to stand upon while applying scalded chickens recently killed to the buffer in a manner which would cause the feathers to be removed rapidly; in performing this operation, the employee standing upon the platform would take hold of the scalded chickens which were being transported above the buffer by a chain upon which said chickens were hung immediately after being scalded; the machine was located on a cement floor and the buffer was turned rapidly by an electric motor carrying 440 volts of electricity.

At the time when the injury to the employee occurred, and for about four years prior thereto, this electrically propelled machine was not grounded and all of the electric current was transmitted to the machine in what is known as 'B' X wiring.'

On many occasions over a period of four years prior to July 17, 1944, and 'by reason of the conditions obtaining and the faulty installation and handling of said electric current, sundry employees had received severe shocks through said machine and on many occasions flashes of fire resembling lightning had been observed by employees within said picking room and especially in and about said machine and buffer.'

Isabel Duncan, wife of the plaintiff and mother of his six minor children, had been employed by the defendant company during the months of May, June and until the 17th day of July, 1944, and at no time during that period had any such incidents occurred and she 'had no knowledge whatever regarding the uncontrolled electric current and the shocking of persons and activities of said electric current in said picking room' and the plaintiff in the action had no knowledge thereof; other employees knew about these electric shocks suffered by persons and about flashes of electricity in the room and during all of the four years prior to July 17, 1944, the foreman and the superintendent had full knowledge thereof and at all times knew that the machine was not grounded and during all of the same period the general manager had intimate knowledge concerning the installation, shorting, the ungrounded condition and the flashes of fire as they appeared in the picking room; 'all of said officers knew that said machine was dangerous to the life and limb of persons employed in said picking room' but notwithstanding this knowledge of these dangers they 'willfully neglected and refused to mend said machine or correct or eliminate said dangers.'

On July 17, 1944, 'Isabel Duncan, while in the performance of her assigned duties on said machine was suddenly electrocuted and killed in said picking room'; she was then thirty-eight years of age and in fine health; the defendants knew at all times that the uncontrolled 440 volts of electricity was inherently dangerous to the life and safety of every employee and especially to Isabel Duncan who had been assigned to stand upon the platform heretofore mentioned, but...