Jones v. Dodge City

• Citation: 402 P.2d 108,194 Kan. 777
• Decision Date: 15 May 1965
• Docket Number: No. 44065,44065
• Parties: John D. JONES, Appellee, v. DODGE CITY, Kansas and Phoenix Assurance Company of New York, Appellants.
• Court: United States State Supreme Court of Kansas

Page 108

402 P.2d 108

194 Kan. 777

John D. JONES, Appellee, v. DODGE CITY, Kansas and Phoenix Assurance Company of New

York, Appellants.

No. 44065.

Supreme Court of Kansas.

May 15, 1965.

Syllabus by the Court

The record in a workmen's compensation proceeding examined and, as more fully set forth in the opinion, it is held: There was substantial competent evidence to support the district court's findings and judgment.

J. J. Mangan, Dodge City, argued the cause, and was on briefs for appellants.

R. R. Mitchell, Dodge City, argued the cause, and W. C. Gould and Don C. Smith, Dodge City, were with him on the briefs for appellee.

FATZER, Justice.

This was a workmen's compensation case. The district court found that the claimant, John D. Jones, was in the employ of respondent city on March 22, 1962, and that he sustained injury by accident arising out of and in the course of that employment on that date.

In the words of the respondent city and its insurance carrier (respondent), the principal question involved is the contention that:

'There was no substantial competent evidence to support the trial court's finding that claimant was in the employ of the City of Dodge City when he was injured.'

The undisputed facts are summarized: The claimant, a 63-year-old man, was a general carpenter who had worked mostly on his own during the past twelve years. Mike Gebhart, manager of the Dodge City airport, lived in a dwelling at the airport owned and furnished to him by the city. The ceiling over the stairway into the basement of the residence needed repair. Gebhart called Dwight Holland, manager of the T. M. Deal Lumber Company, of Dodge City, and asked him to send a man named George Keller out to do the work. Holland told Gebhart that Keller was tied up on a job and that he would send claimant Jones out when Jones got back from Texas. On March 22, 1962, Holland called the claimant and told him that Gebhart wanted him to come to the city airport; that Gebhart had tried to get in touch with him, but failed, and that he should go to the airport and contact Gebhart. The claimant drove to the airport and contacted Gebhart who took him to the house and told the claimant that he wanted the wall and ceiling sheetrocked and finished. Gebhart told the claimant to figure the materials he needed, order them from T. M. Deal Lumber Company, and charge them to the city airport. Nothing was said about wages. Gebhart left, and did not see Jones again until after he was hurt. Jones ordered the materials, and while waiting for them to be delivered, started preparing the area for the sheetrock. The claimant got another man who was an employee of the lumber company to help him with the ceiling. The claimant used his own tools and equipment in doing the work.

After the sheetrock arrived, the claimant started installing it and while doing so, he slipped and fell off the scaffolding, approximately eight and a half or nine feet, landing on his hips and tailbone. He had immediate pain in his hips and right leg and was taken to the Dodge City Medical Center, and then to the hospital where he was treated for a broken pelvis and dislocated left kidney.

The district court found that the claimant suffered a 30 percent permanent partial general disability, and made an award in conformity with the Workmen's Compensation Act with respect to the amount of compensation due and owing the claimant, based upon his average weekly wages, and for medical and hospital expenses incurred. The respondent concedes there is substantial competent evidence in the record to substantiate the district court's finding in these respects, and, as previously indicated, the only question presented is whether the claimant was an employee of the city on the day he was injured.

Under K.S.A. 44-556, the appellate jurisdiction of this court in workmen's compensation cases is limited to reviewing questions of law only. Whether the district court's judgment in a compensation case is supported by substantial competent evidence is a question of law as distinguished from a question of fact. (Holler v. W. S. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P.2d 846, 148 A.L.R. 1131; Coble v. Williams, 177 Kan. 743, 747, 282 P.2d 425; Bowler v. Elmdale Developing Co., 185 Kan. 785, 347 P.2d 391.) In reviewing the record to determine whether it contains substantial evidence to support the district court's factual findings, this court is required to review all of the evidence in the light most favorable to the prevailing party below. Where the findings of fact made by the district court are based on substantial evidence, they are conclusive, and we have no power to weigh the evidence and revise those findings or reverse the final order of the court. Although this court may feel the weight of the evidence, as a whole, is against the findings of fact so made, it may not disturb those findings if they are supported by substantial competent evidence. (Evans v. Board of Education of Hays, 178 Kan. 275, 284 P.2d 1068; Barr v. Builders, Inc., 179 Kan. 617, 296 P.2d 1106; Weimer v. Sauder Tank Co., 184 Kan. 422, 337 P.2d 672; Durnil v. Grant, 187 Kan. 327, 356 P.2d 872.) Numerous decisions of like import are cited in 9 West's Kansas Digest, Workmen's Compensation, k1940, 1969, and 5 Hatcher's Kansas Digest [Rev.Ed.], Workmen's Compensation, § 153.

The term 'substantial evidence,' when applied to workmen's compensation cases, means evidence possessing something of substance and relevant consequence and carrying with it fitness to induce conviction that the award is proper, or furnishing substantial basis of facts from which the issue tendered can be reasonably resolved. (Barr v. Builders, Inc., supra; Weimer v. Sauder Tank Co., supra.)

The question whether, in a given situation, a claimant for compensation is an employee within the terms of the Workmen's Compensation Act or an independent contractor, has frequently been before this court. In Evans v. Board of Education of Hays, supra, this court defined the terms as follows:

'* * * the term 'independent contractor' is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to control of his employer, except as to the result of his work, and an independent contractor represents the will of his employer only in the result of his work and not as to the means by which it is accomplished. Pottorff v. Fidelity Coal Mining Co., 86 Kan. 774, 122 P. 120; Shay v. Hill, supra [133 Kan. 157, 299 P. 263]; Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 78 P.2d 868: Bittle v. Shell Petroleum Corp., 147 Kan. 227, 231, 75 P.2d 829.

'* * * a master is a principal who employs another to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service. A servant is a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master. Hurla v. Capper...