Hataway v. Proctor & Gamble Mfg. Co.

• Decision Date: 17 August 1965
• Docket Number: No. 44047,44047
• Parties: Troy HATAWAY, Appellant, v. PROCTOR & GAMBLE MANUFACTURING COMPANY, a Corporation, Appellee.
• Court: Kansas Supreme Court

Page 350

405 P.2d 350

195 Kan. 335

Troy HATAWAY, Appellant, v. PROCTOR & GAMBLE MANUFACTURING COMPANY, a Corporation, Appellee.

No. 44047.

Supreme Court of Kansas.

Aug. 17, 1965.

Rehearing Denied Sept. 10, 1965.

Syllabus by the Court

In an appeal by an employee of a construction company the record is examined of a tort action for damages for personal injuries by reason of negligence of a soap manufacturer, from the trial court's order sustaining defendant's motion for summary judgment on the basis that plaintiff's sole remedy is under the Workmen's Compensation Act, G.S.1949, 44-503(a) and (d), all as more fully shown in the opinion and it is held: that the trial court erred in sustaining defendant's motion for summary judgment.

Joseph P. Jenkins, Kansas City, argued the cause, and Joseph Cohen, Charles S. Schnider, John E. Shamberg, Norma Braly, Barton P. Cohen, Jacob F. May, Jr., Frederick K. Cross and Edward G. Collister, Jr., Kansas City, were with him on the brief for appellant.

James K. Cubbison, Kansas City, argued the cause, and Blake A. Williamson, Donald A. Hardy, A. C. Cooke and Sheldon M. Crossette, Kansas City, were with him on the brief for the appellee.

Lee E. Weeks, Leonard O. Thomas, J. Donald Lysaught, Richard Millsap, Robert H. Bingham, Ervin G. Johnston and Miles D. Mustain, Kansas City, were on the brief of Helmerich & Payne, Inc., amicus curiae.

The following opinion was prepared by Mr. Justice ROBB and approved by the court during his lifetime:

This appeal by the plaintiff in a tort action for damages for personal injuries by reason of negligence of the defendant was taken from the judgment and order of the trial court sustaining defendant's motion for summary judgment on the basis that plaintiff's sole remedy is under the workmen's compensation act.

Plaintiff's counsel admits that if plaintiff is a statutory employee as defined in G.S. 1949, 44-503(a) and (d), now K.S.A. 44-503(a) and (d), then plaintiff cannot bring this action for damages as an ordinary third party tortfeasor.

The facts are not in dispute or argued. Plaintiff was employed by Fruin-Colnon Contracting Company as a labor foreman in defendant's plant in Kansas City, Kansas, during construction of an extension and addition to its Tide Department. To expedite plaintiff's travel from one location to another on defendant's premises he was furnished with a bicycle by Fruin-Colnon. Defendant used a four-wheel fork lift on its premises which had a front end fork with a wooden pallet and on July 9, 1962, the day of the accident, a heavy two-wheel truck was being transported thereon. It was alleged that through the negligence of defendant's operator of the fork lift, the two-wheel truck was dislodged from the pallet and fell upon and against plaintiff while he was passing by on the bicycle, causing him to sustain severe injuries. His injuries are not presently in dispute and will not be detailed herein.

The trial court held that plaintiff was a statutory employee of defendant under the workmen's compensation act and sustained defendant's motion for summary judgment. Plaintiff appeals from that finding and order.

The sole question presented for appellate review is whether at the time of his injury plaintiff was an employee of defendant and would be subject to and limited by the following provisions of 44-503 (subcontracting):

'(a) Where any person (in this section referred to as principal) undertakes to execute any work which is a part of his trade or business or which he has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then in the application of this act, references to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed. * * * (d) This section shall not apply to any case where the accident occurred elsewhere than on, in or about the premises on which the principal has undertaken to execute work or which are otherwise under his control or management, or on, in or about the execution of such work under his control or management.'

Plaintiff in support of his contention he was not such a statutory employee, as above defined, cites Durnil v. Grant, 187 Kan. 327, 356 P.2d 872; Henderson v. Sutton's Food City, 191 Kan. 145, 379 P.2d 300.

Defendant relies on Lessley v. Kansas Power & Light Co., 171 Kan. 197, 231 P.2d 239.

A number of arguments and authorities are submitted by counsel but the most pertinent and controlling appear to be the three above-cited cases.

The statute in question which would make plaintiff a statutory employee has been heretofore set out.

In the Lessley case, determined by motion for judgment on pleadings ordered sustained, cited and relief on by defendant, it was stated:

'In construing such statute we have held, so repeatedly that there can no longer be any question regarding the rule, that a principal is liable for injury sustained by workmen of an independent contractor when the accident arises out of and in the course of the principal's trade or business. Indeed we have said the very purpose of such section is to give the employees of such contractor a remedy against the principal and to give its provisions any other construction would simply mean an employer subject to the compensation act could escape liability for injuries received by persons in carrying on his trade or business by the simple expedient of hiring an independent contractor to do the work and letting him employ and direct the workmen. [Citations] It is, of course, elementary that the statute is equally applicable to employees of subcontractors. [Citation] Appellant recognizes this rule and admits that the principal cannot be held liable under the common law for the negligent injury of an employee of an independent contractor where the work being performed under the contract is part of the trade or business of the principal. However, in fairness, it should be here noted he insists the principal is not relieved from liability under the common law simply by reason of the fact the work of such a contractor may be required to equip the principal's trade or business for operation.' (p. 204, 231 P.2d p. 245.)

It should be noted that in the admitted facts in the pleadings of the Lessley case, we find in regard to the Kansas Power and Light Company that,

'It was authorized to do business as a public utility and * * * by virtue of the articles of incorporation issued it by the State of Kansas it was authorized * * * to do all things necessary for the conduct of a general electric * * * business, also to build, construct * * * power plants, power houses * * *.' (Our emphasis.) (p. 199, 231 P.2d p. 242.)

In the Durnil case the claimant's immediate employer, Smith, delivered fruit and produce to retailers and restaurants. On March 31, 1958, claimant was injured and totally disabled while riding in Smith's delivery truck due to Smith's 'blacking out' during deliveries to Smith's customers.

Respondent, Grant, was a wholesale fruit and vegetable distributor selling to retailers, sub-jobbers, other wholesalers and the general public and had his own salesmen who only solicited orders. Grant also had his own delivery trucks and drivers. Smith received orders for produce at his home or by a telephone to which he had access at Grant's place of business. Smith was also furnished a desk by Grant to write up orders and to transact business. Each morning Smith would go to Grant's with his truck, where he was furnished special dock space, and he and claimant would go into the warehouse and obtain fruit, etc., to fill the orders. The items were wrapped by Smith and claimant with Grant's paper and twine. No assistance or supervision were given by Grant's employees. House tickets were furnished Smith by Grant. The wrapping process was done alongside...