Hoffman v. Cudahy Packing Co.

• Decision Date: 06 April 1946
• Docket Number: 36569.
• Citation: 167 P.2d 613,161 Kan. 345
• Parties: HOFFMAN v. CUDAHY PACKING CO.
• Court: Kansas Supreme Court

167 P.2d 613

161 Kan. 345

HOFFMAN v. CUDAHY PACKING CO.

No. 36569.

Supreme Court of Kansas

April 6, 1946

Appeal from District Court, Wyandotte Division No. 2; Willard M Benton, Judge.

Personal injury action by O. R. Hoffman against the Cudahy Packing Company. From an order striking out parts of defendant's answer, the defendant appeals.

Reversed with directions.

Syllabus by the Court.

1. A demurrer to one of several defenses set up in an answer raises only the question of whether the particular defense attacked is sufficient, and not whether it is inconsistent with other defenses set up in the answer.

2. If a workman's injury is compensable under the Workmen's Compensation Act, G.S.1935, art. 5, ch. 44, such remedy is exclusive and a common law action for damages will not lie.

3. The Workmen's Compensation Act is to be liberally construed to accomplish its purpose of affording protection to workmen in industries operating under the Act, and, upon the same facts, the same rule of construction is to be applied whether invoked by the employee or the employer.

4. A prime purpose of section 44-503, Workmen's Compensation Act, is to give to employees of a contractor who has undertaken to do work which is a part of the trade or business of the principal, such remedy against the principal as would have been available if they had been employed directly by the principal, and to prevent employers from evading liability under the Act by the device of contracting with outsiders to do work which they have undertaken to do as a part of their trade or business.

5. Record examined in an action to recover damages for personal injury in which the defendant, a large meat packing company, alleged, as one of its defenses, facts which it asserted made the injury complained of compensable under the Workmen's Compensation Act, and in which it appears from facts, admitted by plaintiff's motion to strike such defense from the answer, that the defendant had a large amount of electrical equipment within the plant, including a certain signal bell, all of which was directly operated as part of defendant's plant, and that it had undertaken as part of its business operations to keep the electrical equipment, including this particular bell, in working order and that this maintenance work was done either by regular employees of the defendant or under contract with an outside contractor; that an employee of a contractor with whom the defendant had a continuing contract to keep the bell in working order, was injured while engaged under the contract in repairing the bell within the plant; held: Under the facts as alleged, and as more fully set out in the opinion, the injury was compensable under the Act, and the trial court erred in sustaining the motion to strike.

J. O. Emerson, of Kansas City (Fred Robertson and Edw. M. Boddington, both of Kansas City, on the brief), for appellant.

David W. Carson, of Kansas City (David F. Carson, of Kansas City on the brief), for appellee.

HOCH Justice.

This was a common law action to recover damages for personal injuries. The defendant company appeals from an order striking out parts of its answer.

The question presented is whether under the allegations of fact stricken from the answer, the plaintiff's injury was compensable, from the defendant, under the Workmen's Compensation Act. If so compensable, such remedy was exclusive and a common law action for damages founded on negligence would not lie. Bailey v. Mosby Hotel Co., 160 Kan. 258, on page 259, 160 P.2d 701, on page 702, and cases cited.

The allegations of the petition need be noted only briefly. Plaintiff alleged that on the day on which the injury occurred he 'was employed by the telephone company' and 'was making repairs for an extension bell for the telephone company on the place of business and within the premises of the Cudahy Pcking Company.' He alleged further that in order to make these repairs it was necessary for him to stand on a platform furnished by the defendant for that purpose, and that while he was 'at work on the extension bell for the telephone company' one of defendant's employees, while moving a truck along a track on which the platform had been placed, struck the platform, knocking the plaintiff from the platform and injuring him. The allegations as to defendant's negligence and as to the nature of plaintiff's injury need not be recited. Recovery was sought in the sum of $3,000.

In its answer the defendant set up four defenses. In the first defense, defendant admitted that the plaintiff was repairing a bell on its premises and that the person who was moving the truck was its employee and engaged in the performance of his work. Aside from these admissions, the first defense consisted in most part of a general denial. The allegations of the second and third defense need not be recited. We come to the fourth defense which is the one here involved.

Preliminary procedural steps taken may be briefly noted. Plaintiff first moved to strike out the fourth defense in its entirety. This motion was overruled and the plaintiff was given time in which to plead further or to file a motion to strike directed to specific parts of the answer. The plaintiff's later motion to strike portions of the fourth defense is somewhat confusing, but it may be said that it covered all the allegations of the fourth defense which are material here. The trial court regarded the motion as one to strike the substance of the fourth defense, and we think properly so. The motion was then treated as a demurrer and will be so treated here. The question then is whether under the facts alleged in the fourth defense and all reasonable inferences to be drawn therefrom, action would lie against the defendant company under the Compensation Act.

Before summarizing the allegations which were stricken from the answer, we take note of appellee's contention that the appellant is bound by certain admissions made in the first defense set up in its answer and that such admissions are inconsistent with the fourth defense, the point being that in the first defense the defendant did not deny that the plaintiff was employed by the telephone company at the time of the accident, and 'was making repairs for an extension bell for the telephone company.' The contention calls for only brief comment. In the first place, the fact that the plaintiff was an employee of the telephone company and was fixing the bell as such employee would not necessarily relieve the defendant packing company from liability under the Workmen's Compensation Act. We would still have to determine whether there was liability under the provisions of section 44-503 of the Act, presently to be considered. In the next place, there was no motion to require the defendant to elect which of the four defenses it would rely upon and it would have been entitled, if it chose to do so, to rely entirely upon the fourth defense and disregard the others. Furthermore, a demurrer to the fourth defense does not raise the issue of inconsistency of different defenses pleaded. In the early case of Larimer v. Kelley, 10 Kan. 298, 306, it was said, in answer to a contention similar to the one made here by appellee: 'If counsel mean to claim that it is insufficient because contradictory to the second and verified defense, and that contradictory defenses are not tolerated, this answer is complete: Such objection cannot be raised by demurrer. The question on demurrer, is whether this defense be sufficient; not, whether it contradicts or is inconsistent with some other.' See also Herd v. Estes, 154 Kan. 316, 321, 118 P.2d 575.

The salient allegations of fact to be considered may be summarized as follows: At the time the alleged accident occurred and for a long time prior thereto, the defendant had been carrying on for profit upon the premises where the injury hapened, a meat packing house, and was operating therein a factory within the meaning of the Workmen's Compensation Act, and in so doing was using electrical power in connection with the manufacturing and processing of meat and other products. At the time of the alleged accident, the plaintiff was performing work which was a part of and incidental to the defendant's trade and business which it had undertaken to perform; at the time of the accident and continuously for more than a month prior thereto, defendant had in its employ in the meat packing house about 1500 workmen and was and had been operating under the Act; the premises where defendant's business was being carried on consisted of several acres of ground and many buildings, and the place where it was alleged the accident occurred was a very large room in which more than a hundred employees were working under the direction of a foreman and assistant foreman. This large room was largely filled with machinery operated with electricity and in one end of the room was a small office for the use of the foreman and his assistant. In the performance of their duties the foreman and his assistant were required to be in various parts of this large room, and in order that they might be called to the small office room in connection with their duties, the defendant had installed upon one side of the large room an extension bell operated by electricity and used for the purpose of calling the foreman and his assistant to the office to answer telephone calls or to transact other business of the defendant; the plaintiff was repairing 'the said extension bell' at the time of his alleged accident; ' the said bell was necessary useful, and proper for the defendant in order for it to carry on its said business efficiently and the defendant had at all times undertaken to keep and have the same kept in running order. The said bell was...