Johnson v. The Ismert-Hincke Milling Company

• Decision Date: 11 October 1924
• Docket Number: 25,695
• Citation: 116 Kan. 731,229 P. 359
• Parties: JOSIE JOHNSON, as Guardian, etc., Appellee, v. THE ISMERT-HINCKE MILLING COMPANY, Appellant
• Court: Kansas Supreme Court

229 P. 359

116 Kan. 731

JOSIE JOHNSON, as Guardian, etc., Appellee, v. THE ISMERT-HINCKE MILLING COMPANY, Appellant

No. 25,695

Supreme Court of Kansas

October 11, 1924

Decided July, 1924

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment affirmed.

SYLLABUS

1. WORKMEN'S COMPENSATION ACT--Evidence Supports Findings and Judgment. In an action under the compensation act to recover for the death of an injured employee, the evidence examined and held sufficient to support the findings of the jury and judgment of the court.

2. WORKMEN'S COMPENSATION ACT--Injuries to Workman--Liability of Employer Arises on Contract--Method of Computing Compensation Under the Statute--Compensation Due at Death of Workman. The liability of an employer to his employee under the workmen's compensation act is a liability arising on contract, and where death resulted from injuries caused by an accident arising out of and in course of the decedent's employment, and where his average weekly earnings for the fifty-two weeks immediately preceding the accident, were ascertainable by computation, the amount of compensation became due and payable on his death and interest should be allowed on the amount from that time.

3. SAME--Various Assignments of Error Without Merit. Various assignments of error considered and held to be without substantial merit.

W. L. Wood, of Kansas City, and E. H. Henning, of Chicago, Ill., for the appellant.

L. O. Carter, of Kansas City, for the appellee.

OPINION

HOPKINS, J.:

The action was one for compensation brought by the plaintiff, as guardian for and on behalf of four minor children, on account of the death of their father, O. R. Johnson, who was injured while in the employ of the defendant. The plaintiff recovered and defendant appeals.

The deceased was a trucker. He was injured on June 2, 1920, while handling a two-wheel truck carrying a load of five sacks of flour which weighed about 98 pounds each. While pushing the truck across a metal runway which extended from a building to a car in which the flour was being loaded, the truck, by some accident, was caused to topple over on the deceased, crushing his chest, injuring his left foot, and rendering him unconscious. He was unable to work for a period of three weeks, during which time he was treated by defendant's physician. He then returned to his employment and was put in the sacking department at light work, which he continued for a period of eight days, when he again returned home on account of severe pains in his chest. He was never able thereafter to be out, and died August 6, 1920. In the meantime arbitration of his claim for compensation had been agreed upon by the parties and an arbitrator appointed by the district court. On the 23d of July his testimony was taken, though under great difficulty, and on account of his serious condition nothing further was accomplished toward arbitration during his lifetime. After his death this action was prosecuted by the plaintiff for the minor children. This is a second appearance of the case here. An appeal was originally taken to this court by the plaintiff from an order of the trial court sustaining a demurrer to her petition. The judgment of the trial court was reversed, with directions to proceed with the trial. (Johnson v. Milling Co., 114 Kan. 470, 219 P. 256.) The case was submitted to a jury to answer special questions only, on the answers to which the trial court entered judgment for the plaintiff in the sum of $ 3,779.88, and from which judgment the defendant appeals. The plaintiff has a cross-appeal because of the refusal of the trial court to allow interest on the amount of the award.

The defendant complains of the admission of evidence; of overruling its demurrer to plaintiff's evidence; in refusal to submit certain special questions; of the giving of certain instructions and refusal to give others; and in overruling defendant's motion to set aside the special findings of the jury.

Special questions were answered by the jury as follows:

"1. Was the said O. R. Johnson injured by accident arising out of and in the course of his employment while working for the defendant, on June 2, 1920? A. Yes.

"2. If you answer the preceding question 'Yes,' then state what part or parts of his body was injured. A. Chest and ankle.

"3. If you answer question No. 1 'Yes,' state whether or not the injury received by said O. R. Johnson on June 2, 1920, was the proximate cause of his death. A. Yes.

"4. Did said O. R. Johnson come to his death from acute pneumonia or phthisis? A. Yes.

"5. If you answer the last preceding question 'Yes,' then state whether such pneumonia or phthisis was the result of a personal injury by accident arising out of and in the course of the employment of said O. R. Johnson while working for the defendant. A. Yes.

"6. What were the average weekly earnings of said O. R. Johnson for fifty-two weeks immediately next preceding the date of said accident and injuries, if any? A. $ 24.23."

The defendant contends that there was no competent evidence showing that the decedent's death resulted from the accident sustained on June 2. In the hearing before the arbitrator, the deceased testified that the truck knocked him down; that it struck him across the chest and rendered him unconscious; that the next day his foot felt bad; that he felt no pain in his chest at that time but did afterwards that every day it grew worse; that when he returned to work they put him in the sacking room, where he stayed about eight days, and then went home because the pains were so bad (that is, the pains in his chest); that he never had had any trouble like that in his chest before; had...