Echord v. Rush

• Decision Date: 10 December 1927
• Docket Number: 26,950
• Parties: MYRTLE ECHORD et al., by MYRTLE ECHORD, their Guardian, Appellees, v. A. W. RUSH, Receiver, Appellant
• Court: Kansas Supreme Court

261 P. 820

124 Kan. 521

MYRTLE ECHORD et al., by MYRTLE ECHORD, their Guardian, Appellees, v. A. W. RUSH, Receiver, Appellant

No. 26,950

Supreme Court of Kansas

December 10, 1927

Decided July, 1927

Appeal from Linn district court; EDWARD C. GATES, judge. Opinion on rehearing filed December 10, 1927. (For original opinion of reversal see 122 Kan. 260.) Affirmed.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WORKMEN'S COMPENSATION ACT--When Remedies Provided Therein Exclusive. The remedies provided by the workmen's compensation law are exclusive when the workman and his employer are operating under that law and the injury complained of is one within its purview.

2. SAME--When Act Not Applicable. The workmen's compensation law has no application if the parties are not operating under it, or if the injury complained of is not within its provisions.

3. SAME--Effect on Action for Wrongful Death Not Within Act--Judgment as Bar. In a proceeding to establish a claim for compensation under the workmen's compensation law the court found that the facts failed to show that the death of the workman was caused "by personal injury by accident arising out of and in the course of his employment," and rendered judgment for defendant. Held, this judgment was not a bar to an action for wrongful death under R. S. 60-3203, based on the negligence of defendant in failing to comply with the safety provisions of the mining laws (R. S. 49-214 et seq.), when the injury is found to be of a character not within the provisions of the workmen's compensation law.

Charles T. Meuser, of Paola, for the appellant.

John A. Hall, of Pleasanton, for the appellees; Robert Stone, George T. McDermott, Robert L. Webb and Beryl R. Johnson, all of Topeka, of counsel.

Harvey J. Harvey, J. dissenting.

OPINION OPINION ON REHEARING.

HARVEY, J.:

In the former opinion filed in this case (122 Kan. 260, 251 P. 1112) the judgment of the court below was reversed, with directions to enter judgment for defendant, the court holding that the case was controlled by the rule of law stated in Shade v. Cement Co., 92 Kan. 146, 139 P. 1193; 93 Kan. 257, 144 P. 249, and allied cases. A rehearing was granted. The case has been reargued, additional briefs have been filed, and we have sent for and examined the papers and transcript filed in the court below. Upon this further consideration we are now of the opinion that our former conclusion was erroneous, and that the case is not controlled by the rule of law stated in the Shade case.

This action was brought as an ordinary action for damages to dependents for a wrongful death (R. S. 60-3203) of an employee of defendant, alleged to have been caused by the negligence of defendant in failing to comply with the safety provisions of the mining laws (R. S. 49-214 et seq.), by reason of which negligence poisonous gases accumulated in the mine where the employee worked, and were necessarily inhaled by him day by day, whereby his system became gradually poisoned, resulting in his death. In the petition it was specifically alleged that the injury sustained by the employee did not come within the provisions of the workmen's compensation act. The answer denied the negligence alleged, contained a plea of contributory negligence, and alleged that at the time of the alleged injury to the employee he and defendant were engaged in mining, and were operating under the provisions of the workmen's compensation act, which was the exclusive measure of recovery; and further alleged as a former adjudication of the rights of the parties that plaintiff had theretofore brought an action seeking compensation as dependents under the workmen's compensation act against defendant for the same injury, which action had been tried on issues joined and resulted in a judgment for defendant. The reply averred that the only thing determined in the prior case was that the death of the employee was not the result of personal injury by accident, within the meaning of the workmen's compensation act; other defenses of the answer were denied.

While the evidence on these questions was in conflict, there was evidence to support the allegations of plaintiffs' petition as to the negligence of defendant in the failure to comply with the safety provisions of the mining laws, to the presence of poisonous gas in the mine, which was inhaled by Echord from day to day, resulting in his illness and death. The jury returned a verdict for plaintiffs for $ 5,000, and answered special questions as follows:

"2. Was Jesse Echord's death due to the sudden escaping of poisonous gases in the mine and the inhalation by him? A. No.

"3. If you answer the above question in the negative, then state what was the real or proximate cause of his death? A. Inhaling poisonous gas from day to day."

Judgment was rendered for plaintiffs on the verdict; defendant's motion for a new trial was overruled, and he has appealed.

Appellant contends that since the parties were engaged in the business of mining, they were necessarily operating under the provisions of the workmen's compensation law (R. S. 44-507); that the remedies afforded by the workmen's compensation law are exclusive, and that therefore, this action for damages cannot be maintained, citing and relying on Shade v. Cement Co., supra, and allied cases.

It is well settled that the remedies provided by the workmen's compensation law are exclusive when the workman and his employer are operating under that law, and the injury complained of is one within the purview of the law ( Shade v. Cement Co., supra; Moeser v. Shunk, 116 Kan. 247, 226 P. 784); but it is just as true that the workmen's compensation law has no application if the parties were not operating under it (Smith v. Cement Co., 94 Kan. 501, 146 P. 1026; Menke v. Hauber, 99 Kan. 171, 160 P. 1017), or if the injury complained of is not within its provisions (Bevard v. Coal Co., 101 Kan. 207, 165 P. 657; Alvarado v. Rock Crusher Co., 109 Kan. 192, 197 P. 1091; Haas v. Light & Power Co., 109 Kan. 197, 198 P. 174; Peavy v. Contracting Co., 112 Kan. 637, 211 P. 1113; Carter v. Uhrich, 122 Kan. 408, 252 P. 240).

The pertinent statute reads:

"If in any employment to which this act applies personal injury by accident arising out of and in course of employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation to the workman in accordance with this act. . . ." (R. S. 44-501.)

Before a workman, or his dependents, can recover compensation under the workmen's compensation law it must be shown that the workman sustained personal injury, (1) by accident, (2) arising out of, (3) and in the course of his employment. (R. S. 44-501.) Here it was shown that the injury arose out of and in the course of the employment, but the question still remains, Did the workman sustain personal injury "by accident," as that term is used in the law? Early in the administration of the workmen's compensation law in this state, in the case of Gilliland v. Cement Co., 104 Kan. 771, 180 P. 793, the meaning of the word "accident" as used in the statute was discussed. In the opinion it was said:

"An accident is simply an undesigned, sudden, and unexpected event, usually of an afflictive or unfortunate character, and often accompanied by a manifestation of force. The word undesigned must not be taken too literally in this connection, because a person may suffer injury accidental to him, under circumstances which include the design of another. The same warning may be extended regarding other elements of the definition; but as definitions go, the one here proposed is correct, at least for present purposes." (p. 773.)

There was further discussion as to the distinction between injury as one thing, and accident producing it as another. On this point were reviewed a number of English cases, construing the English compensation act, the language of which was adopted by our legislature, and it was held that this word "accident" may apply to what happened to the workman, although it may have resulted from the intentional performance of usual acts in the usual way.

The definition of the word "accident" as it is used in our workmen's compensation law, given in the case just cited, has been followed in all cases involving the question arising in this court since that decision. (Cox v. Refining Co., 108 Kan. 320, 324, 195 P. 863; Blackburn v. Brick & Tile Co., 107 Kan. 722, 726, 193 P. 351; Gilliland v. Zinc Co., 112 Kan. 39, 209 P. 658; Hoag v. Laundry Co., 113 Kan. 513, 514, 215 P. 295; Stark v. Wilson, Receiver, 114 Kan. 459, 462, 219 P. 507; Stringer v. Mining Co., 114 Kan. 716, 718, 220 P. 168; Chop v. Swift & Co., 118 Kan. 35, 37, 233 P. 800. Also in Cherdron Constr. Co. v. Simpkins, 61 Utah 493, and Frandila v. Dept. of Labor & Industries, 137 Wash. 530.)

And it has been repeatedly held that to authorize a recovery under the workmen's compensation law there must have been a "personal injury by accident." (Monson v. Battelle, 102 Kan. 208, 170 P. 801; Gilliland v. Zinc Co., supra; Taylor v. Swift & Co., 114 Kan. 431, 219 P. 516; Chop v. Swift & Co., supra.) Our workmen's compensation law does not cover personal injury resulting from occupational diseases as distinct from accidents. (Chop v. Swift & Co., supra.)

One of the elements entering into a definition of the word "accident" as used in compensation statutes is that of suddenness. There must be a time, place or circumstance when the thing called an accident happened, took place or occurred. All the courts seem to agree on this, although there may be difficulty in determining whether the thing or things being considered constituted an accident.

The case before us is similar to that...