Jones v. Lozier-Broderick & Gordon

• Court: Kansas Supreme Court
• Writing for the Court: BURCH, Justice.
• Citation: Jones v. Lozier-Broderick & Gordon, 160 Kan. 191, 160 P.2d 932 (Kan. 1945)
• Decision Date: 07 July 1945
• Docket Number: 36339.
• Parties: JONES v. LOZIER-BRODERICK & GORDON et al.

160 P.2d 932

160 Kan. 191

JONES v. LOZIER-BRODERICK & GORDON et al.

No. 36339.

Supreme Court of Kansas

July 7, 1945

Rehearing Denied Sept. 4, 1945.

Appeal from District Court, Johnson County; G. A. Roberds, Judge.

Proceeding under the Workmen's Compensation Act by William T. Jones claimant, opposed by Lozier-Broderick & Gordon, employer, and Employers Mutual Liability Insurance Company, insurance carrier. From a judgment for claimant on appeal to the district court, the employer and insurance carrier appeal.

Reversed with directions.

Syllabus by the Court.

In a workmen's compensation case the claimant has the burden of establishing, by substantial, competent evidence, that the injury to the workman arose out of and in the course of his employment. Such a claim is not sustained by conjecture or abstract theories not applicable to the facts.

James K. Cubbison, of Kansas City (T. H. Hurtt, of Dallas, Tex Howard Payne, of Olathe, Blake A. Williamson, and Lee Vaughan, both of Kansas City, on the brief), for appellants.

Frank L. Bates, of Kansas City, and Robert L. Robertson, of Kansas City, Mo. (Sam Mandell, of Kansas City, Mo., on the brief) for appellee.

BURCH Justice.

This is a workmen's compensation case. The district court, on appeal, held in favor of the claimant on all issues. The respondent and its insurance carrier appeal and contend that the evidence was insufficient to establish that the accident arose out of and in the course of the employment or that a claim was made within the time provided by the statute or the extent of the claimant's disability.

If the first contention be sound, there is no basis for a claim being filed and the extent of the disability need not be determined. Consequently, consideration first will be given to the primary question.

The claimant was injured while on the grounds of the Sunflower Ordnance Plant, which belongs to the United States Government, and is operated by the Hercules Powder Company. The entire area of the Sunflower Ordnance Plant is approximately five miles wide and seven miles long. Thus, it will be seen that in area it is more extensive than most of the cities in Kansas.

The respondent is a contractor who was engaged in performing work in scattered places on the large tract. Many other contractors also were engaged in performing work on the premises. Under the circumstances the respondent did not have control over conditions which existed throughout the entire area but its control necessarily was limited to the scattered places throughout the entire tract where its work was being performed. The workmen employed by the respondent reported each day to what is referred to in the record as 'time shacks.' The claimant was in the employ of the respondent on October 28, 1942 as a carpenter helper, working out of time shack No. 10 from four o'clock in the afternoon until midnight. At the close of work on October 28, 1942 he was given a transfer slip and was informed that he was to report to work the next morning at eight o'clock at time shack No. 28. Consequently, it will be observed that the location of his work was changed and also the hours during which he was supposed to work. The exact distance between time shack No. 10 and time shack No. 28 is not shown by the record but the record does disclose that the two were more than a mile and a half apart.

Instead of reporting on October 29th to time shack No. 28, the claimant remained at his home a day. At the time claimant was living at Linwood, Kansas, and according to his wife, he went over to the Sunflower Ordnance Plant on October 30th to try to get on the same shift on which he had been. He wanted to avoid working on the day shift because there were no cars from his town at such hours and he would not be able to get back on the same hours. According to her testimony, the claimant had with him when he left home either the transfer slip or an order for a transfer slip. According to the evidence given by the claimant, he arrived at the plant between 2:30 and 3 o'clock in the afternoon and the first thing he did was to go to the personnel office. The claimant further testified as follows: 'I don't remember whether I saw my foreman that day or not. * * * I don't know what I was to do on the day I was injured. I had been doing this carpenter helper work for some time. By transfer slip I mean transferred to a different job. All I remember is my foreman told me to go over for my transfer slip and going over I got hurt. I was going to keep on working * * *, but I was being transferred from the job I had been doing, to another job. I don't know in what part of the grounds the personnel office was located. I don't know the number of the gate where I entered the grounds. I don't know where the administration building is or where the personnel office is with reference to the administration building. I don't know whether the personnel office is in that building. I went to the administration building to get my transfer slip. I think I was going to a different job when I got hurt. * * * I think a quarter of a mile, or somewhere along in there * * * from the administration building. I don't know which direction it was. I was going to that other job when I got hurt, * * * As far as I remember, another car--was going around the bus and when I had to go around the bus he run into me. That's all I remember. * * * I don't remember the name of my foreman.' On cross-examination he testified that his foreman told him to go to the personnel office to get a transfer slip. He further testified: 'I don't know who I saw at the personnel office. My foreman had my transfer slip. As far as I know, he gave it to me at the personnel office. * * * As far as I can remember I got it at the personnel office. I had not checked in when I had the accident. I had not got my brass. All I did was go to the job, pick up the transfer slip and was on my way when I had the accident. * * * On other days I worked, before this accident I went to my time shack and got my brass. I hadn't done that on the day I got hurt. * * * I didn't see anybody except the person at the personnel office. * * *'

There was no further evidence as to how, when or where the unfortunate man was hurt. It is not claimed that the automobile which struck him belonged to the respondent or was being driven in a negligent manner in furtherance of its business enterprise. The record discloses that the claimant sustained a severe head injury which totally incapacitated him for some time and possibly has incapacitated him partially more or less ever since.

Additional explanation is necessary as to what the claimant meant by not having received his 'brass' and as to the general conditions under which employees of the respondent labored. Robert H. Foster, called as a witness in behalf of the respondent, testified that during the involved period he was the chief timekeeper for the respondent and had charge of the payrolls. He testified further that anyone desiring to enter the premises would have to go through the openings guarded by employees of Hercules Powder Company. To gain admission a man would have to show a photograph pass. The various contractors were scattered all over the entire plant area and respective employees would be relegated to one particular area to complete the work to be done and then go to another area. Each area had its own timekeeper. If a man were an employee of one of the contractors he would first go through the main gate by showing his credentials and then walk or by some means get over to the area where such contractor was working. The next step was to report to the time shack for that area and such contractor. At the time shack the employee would show a badge that designated his number on the payroll. Such badge, however, was not known as the brass. When an employee would go to the timekeeper's office he would show the number badge and thus disclose his payroll number. The timekeeper would give him a corresponding badge with a number on it. Such badges were originally made of brass and were called by that name but they were made of fiber at the time this accident occurred. Thus it will be seen that an employee's number badge was turned in when he reported to work and he was issued a brass. It follows that if the brass still was in the timekeeper's office it indicated that the man was not in attendance and not working and the employee would not receive pay for that time. If the brass was taken off and the employee checked in at the end of the shift, he was given credit for a day's work. Necessary notations were made on time reports kept by the timekeeper and the workman was paid according to the number of hours disclosed by adding the number of hours the workman had possession of his brass. The witness testified: 'The claimant's pay would not start at time shack 28 until he had reported to the timekeeper there. * * * The minute he checks in at the time office his time starts right then.' Insofar as the time record of the claimant was concerned, the witness testified that the company records disclosed that claimant was in attendance from four in the afternoon until twelve in the night of October 28, 1942. The record also disclosed that he was to be transferred to time office No. 28. The time sheet for the following day did not show the claimant as having reported and a search of the records failed to disclose that the claimant reported on October 30th. According to the witness a workman could have presented a transfer slip to anyone in authority and such man would have told the workman where to go and his badge would have been waiting for him at the time shack designated on the transfer slip. If such a man were injured and became unable to work before he got...