Gimple v. Hines

• Decision Date: 11 December 1920
• Docket Number: 22,943
• Citation: 193 P. 1072,108 Kan. 118
• Parties: GEORGE J. GIMPLE, Appellee, v. WALKER D. HINES, Director General of Railroads, operating the Union Pacific Railroad Company (JOHN BARTON PAYNE substituted), Appellant
• Court: Kansas Supreme Court

193 P. 1072

108 Kan. 118

GEORGE J. GIMPLE, Appellee, v. WALKER D. HINES, Director General of Railroads, operating the Union Pacific Railroad Company (JOHN BARTON PAYNE substituted), Appellant

No. 22,943

Supreme Court of Kansas

December 11, 1920

Decided July, 1920

Appeal from Wyandotte district court, division No. 3; WILLIAM H MCCAMISH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

COMPENSATION ACT--Railroad Operated by Director-general of Railroads--Operated Under Provisions of Workmen's Compensation Act. While the director-general of railroads was operating the Union Pacific Railroad shops in Kansas he was the employer of the workingmen in those shops, and he had power to determine for himself independently whether he would operate those shops under the workmen's compensation act or not; and since he did not elect to conduct the business of those shops outside its provisions his liability to his injured workmen is governed by the compensation act.

R. W. Blair, T. M. Lillard, O. B. Eidson, all of Topeka, and A. L. Berger, of Kansas City, Mo., for the appellant.

J. O. Emerson, D. J. Smith, and F. E. Howe, all of Kansas City, for the appellee.

OPINION

DAWSON, J.:

The sole question in this appeal is whether the election of the Union Pacific Railroad Company not to conduct its corporate business under the workmen's compensation act remained in effect after the Federal government took over the property of that company for war service under authority of congress, and operated it by the director-general of railroads.

The plaintiff lost an eye while employed as a workman in the Union Pacific shops at Kansas City, Kan., while the property was under Federal control and operation. He brought his action under the compensation law against Walker D. Hines, director-general of railroads, alleging that the defendant had never filed with the secretary of state his election not to come under the compensation act. The defendant answered that--

"The Union Pacific Railroad which he is operating, as above stated, is owned by Union Pacific Railroad Company, a corporation duly organized and existing according to law, and that prior to the time its railroad was taken from it, by the United States Railroad Administration said Union Pacific Railroad Company had duly filed with the secretary of state of the state of Kansas its election not to come within the provisions of the Workmen's Compensation Law of the state of Kansas, and that said election has never been revoked by said Union Pacific Railroad Company, and that said railroad has been operated ever since said election was made either by Union Pacific Railroad Company itself or by this defendant or his predecessor as successor of Union Pacific Railroad Company under its aforesaid election, and that at no time has said railroad property been operated under the provisions of the Workmen's Compensation Law of Kansas."

Judgment was entered for plaintiff for $ 1,380 as compensation for the loss of his eye.

The defendant appeals, contending that the election of the railroad company not to operate its property under the act was sufficient to cover the situation while the property was operated by the defendant.

The statute in question provides that the act shall apply to employment in the course of the employer's trade or business in and about a railway (Laws 1917, ch. 226, § 1), and that "employment on railways" includes work in railway machine shops (Id., § 2), and that an "employer" includes--

"Any person or body of persons, corporate or unincorporate, and the legal representatives of a deceased employer or the receiver or trustee of a person, corporation, association or partnership; and when any mine, quarry, factory, or other place, covered by the provisions of this act in which work is being or to be performed is leased or let to any lessee or lessees under any form of contract or agreement other than on...