Griswold v. City of Wichita

• Citation: 162 P. 276,99 Kan. 502
• Decision Date: 06 January 1917
• Docket Number: 20561
• Parties: GRISWOLD ET AL. v. CITY OF WICHITA.
• Court: United States State Supreme Court of Kansas

162 P. 276

99 Kan. 502

GRISWOLD ET AL. v. CITY OF WICHITA.

No. 20561

Supreme Court of Kansas

January 6, 1917

Syllabus by the Court.

The Workmen’s Compensation Act (Laws 1911, c. 218, as amended by Laws 1913, c. 216) does not apply to the case of a police officer of a city who is killed in the discharge of his duties.

A police officer of a city of the first class is not a “workman” as defined by the compensation acts.

Appeal from District Court, Sedgwick County.

Action by Rinda E. Griswold and others against the City of Wichita. From a judgment for defendant, plaintiffs appeal. Affirmed.

Blake Ayres & McCorkle, of Wichita, for appellants.

J. A Conly and J. A. Brubacher, both of Wichita, for appellee.

OPINION

PORTER, J.

This action was brought under the workmen’s compensation law, to recover for the benefit of the family of a policeman who was killed while in the discharge of his duty. The court sustained a demurrer to the petition and the plaintiffs appeal.

Frank Griswold, the deceased, was a captain of the police force of the city of Wichita; he was killed by a pistol shot fired by some person who had broken into a store building in the nighttime and whom he was attempting to arrest. The amount sued for is $3,600, the maximum amount of recovery under the Workmen’s Compensation Act, in view of the salary or earnings of the deceased during the year preceding his death.

The sole question to be determined is whether this action can be maintained under the Compensation Act. The exact question has never been decided by this court. In Udey v. City of Winfield, 97 Kan. 279, 155 P. 43, the action was by the widow for the benefit of herself and children, to recover damages for the death of her husband, who was killed while working in an electric light and water plant controlled and operated by the city for profit. The city had not elected to come within the provisions of the Compensation Act, but it was contended that it was within the terms of the act by reason of having 15 persons in the employ of its light and waterworks department. In order to show that 15 persons were thus employed, it was necessary to include mere clerical employés in the office of the city clerk. It was held that to include such employés was not within the letter or spirit of the statute, because they were not engaged in the hazardous enterprise of operating the light and waterworks system. In the opinion it was said:

"Assuming, without deciding, that a municipal corporation like the defendant, if employing the requisite number of persons in such plant, should be deemed to be an employer within the meaning of the act in question, it must be held that the testimony failed to show that 15 persons were thus employed."

The city in that case made no claim of exemption on the ground that in operating its electric light and water system it was exercising governmental instead of proprietory functions, and so the court found it unnecessary to determine that question.

The plaintiff’s contention is that the compensation law, as originally adopted (Laws 1911, c. 218) has been broadened in its scope by the amendment of 1913, in which the Legislature extended its application to "county and municipal work." Section 2 of chapter 216 of the Laws of 1913, so far as it applies to the question, reads:

"Application of the Act. This act shall apply only to employment in the course of the employer’s trade or business on, in or about a railway, factory, mine or quarry, electric, building or engineering work, laundry, natural gas plant, county and municipal work, and all employments wherein a process requiring the use of any dangerous ex plosive or inflammable materials is carried on which is conducted for the purpose of business, trade, or gain; each of which employments is hereby determined to be especially dangerous, in which from the nature, conditions or means of prosecution of the work therein, extraordinary risk to the life and limb of the workman engaged therein are inherent, necessary, or substantially unavoidable, and as to each of which employments it is deemed necessary to establish a new system of compensation for injuries to workmen."

This section amended section 6 of the original act by the addition of the words "county and municipal work." Counsel for plaintiffs insist that the decision in the present case depends on whether the amendment is to be given a narrow or a broad construction by the court. We have uniformly held it to be our duty to give to the Compensation Act a broad and liberal interpretation, for the purpose of carrying out its wise and beneficent purposes; but the court has also recognized its limitations in this respect. In Menke v. Hauber, 99 Kan. 171, 160 P. 1017, it was said in the opinion:

"This court has always recognized the obligation resting upon it to give to the compensation law a liberal construction in order to carry into effect the provisions of the Legislature, but we have no right to extend its construction to cover enterprises and industries not within the scope and intent of the law."

The precise contention of plaintiffs is that the original act was broad enough to include workmen employed in building and engineering work, whether the employer was a person, county, or corporation, municipal or private; and therefore it is agued that when the Legislature, by the amendment of 1913, added the words "county and municipal work," the purpose must have been to extend the application of the law, and that by a liberal interpretation we should hold it was the intention to include all employés of the city whose work, for any reason, becomes especially dangerous. It may have been the intention of the Legislature to remove any doubt that might exist as to the application of the act to county and municipal work "which is conducted for the purpose of business, trade, or gain," provided the nature of the work is such as to render it especially dangerous and hazardous to life and limb of the workmen engaged therein. Whatever the purpose of the Legislature in including the words "county and municipal work,"...