Kansas City Fibre Box Co. v. Connell

• Decision Date: 25 March 1925
• Docket Number: No. 6759.,6759.
• Citation: 43 ALR 478,5 F.2d 398
• Parties: KANSAS CITY FIBRE BOX CO. et al. v. CONNELL.
• Court: U.S. Court of Appeals — Eighth Circuit

43 ALR 478, 5 F.2d 398 (1925)

KANSAS CITY FIBRE BOX CO. et al. v. CONNELL.

No. 6759.

Circuit Court of Appeals, Eighth Circuit.

March 25, 1925.

J. K. Cubbison, of Kansas City, Mo. (William G. Holt, of Kansas City, Mo., on the brief), for plaintiffs in error.

T. F. Railsback, of Kansas City, Kan. (J. H. Brady, of Kansas City, Kan., on the brief), for defendant in error.

Before STONE and KENYON, Circuit Judges, and SCOTT, District Judge.

KENYON, Circuit Judge.

This action is one brought by Raymond Connell against plaintiffs in error under the Workmen's Compensation Act of Kansas (Laws 1917, c. 226), to recover for personal injuries occurring March 21, 1923, while Connell was working in the manufacturing plant of plaintiffs in error on what is known as a corner cutting machine, being a device for trimming and cutting corners of boxes by means of sharp knives operated by power. His left hand became involved in said machine, and the second, third, and fourth fingers were cut off. It was claimed in the petition that he was entitled to compensation in the sum of $3,400 under the terms of said Workmen's Compensation Act. The case was commenced in the district court of Wyandotte county, Kan., and by defendant removed to the United States District Court for the District of Kansas. At the conclusion of the testimony the District Court directed a verdict for plaintiff in the sum of $585, which the court computed as the amount due under the act. The case is here on writ of error, based upon a number of assignments. However, only one question is involved on this writ, and that is: Did the injury to Raymond Connell result "by accident arising out of and in the course of his employment"? The question is further narrowed by the undisputed situation that the injury was the result of an accident and that it was "in the course of employment." It is the position of plaintiff in error that the injury was the result of sportive acts on the part of defendant in error and his coworker, and hence did not arise out of the employment.

The provision of the Workmen's Compensation Act of Kansas upon which this claim is based is as follows:

"The Obligation. If in any employment to which this act applies, personal injury by accident arising out of and in the course of employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation to the workmen in accordance with this act. Save as herein provided no such employer shall be liable for any injury for which compensation is recoverable under this act." Laws Kan. 1917, c. 226, § 27.

The phrase "arising out of and in the course of employment" is borrowed from the English Workmen's Compensation Act. That country early recognized the injustice of placing upon the employé all the burdens of industrial accidents, and sought to get away from the common-law rules of negligence as a basis of recovery. Underlying these acts, now adopted by numerous states, is a more humanitarian aspect toward men who work in great industries, and there has been a gradual growth and development of the law in this country along that line. These enactments are based on principles of natural justice, and are to provide for limited recoveries by workingmen in hazardous industries, even though there may be no negligence on the part of the employer, and though there may be negligence on the part of the employé. They are of benefit both to employer and employé, in that it relieves them from the great expense and uncertainty of litigation. Where machinery is destroyed or injured in industry, it is a part of the burden of industry to supply or repair such machinery. Why should the same theory not apply as far as practicable, where human machinery is injured in carrying on the work? There is economic loss in both cases. The burden is one of industry, and should not all be carried by the employé. The work of the hazardous industry cannot be successful, except by the effort of both employer and employé. If the employé suffer an industrial accident and is crippled thereby, there is no justice in turning him out without compensation, often leaving to him only the future of a corner beggar, because forsooth there may have been some little negligence on his part contributing to the injury, or inability to prove negligence on the part of the employer resulting in his injury.

The Supreme Court of the United States in New York Central Railroad Co. v. White, 243 U. S. 188, 197, 37 S. Ct. 247, 250 (61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629), has so well expressed the theory of this legislation that we quote from it: "In support of the legislation, it is said that the whole common-law doctrine of employer's liability for negligence, with its defenses of contributory negligence, fellow servant's negligence, and assumption of risk, is based upon fictions, and is inapplicable to modern conditions of employment; that in the highly organized and hazardous industries of the present day the causes of accident are often so obscure and complex that in a material proportion of cases it is impossible by any method correctly to ascertain the facts necessary to form an accurate judgment, and in a still larger proportion the expense and delay required for such ascertainment amount in effect to a defeat of justice; that under the present system the injured workman is left to bear the greater part of industrial accident loss, which because of his limited income he is unable to sustain, so that he and those dependent upon him are overcome by poverty, and frequently become a burden upon public or private charity; and that litigation is unduly costly and tedious, encouraging corrupt practices, and arousing antagonisms between employers and employés."

The Kansas act is similar to the acts of the various states. It is not an insurance statute, but has its limitations as to liability. This case arising under the Kansas statute, we would be bound by a construction given to the phrase in question by the Kansas court of highest authority. The decisions of the Supreme Court of Kansas bearing thereon we refer to hereinafter. That the Kansas courts are inclined to a liberal construction of the act to carry out its underlying purpose, we may say parenthetically, is evidenced by certain words of the opinion of that court in Messick v. McEntire, 97 Kan. 813, 816, 156 P. 740, 741, with reference to a case where they decided contributory negligence of claimant was no defense, viz.: "Nothing save his deliberate intention to cause the injury, his willful failure to use guards or protection provided for him, his deliberate breach of some statutory regulation, or his intoxication can deprive him of his statutory right to compensation for an injury."

In instructing a verdict in this case the learned District Court drew a distinction between the law applicable to workmen of mature years and boys, saying: "And, if put on as strong ground as you are contending for, any one who employs boys the age of this boy, or people of the age and intelligence of the party who was working with him, knows they are going to be playful and reckless, and so on, know it when they employ them."

The writer of this opinion believes the distinction drawn by the District Court is sound, and that, if an employer places boys as coworkers with others in hazardous employment, he is charged under these Workmen's Compensation Acts with what may happen from the curiosity, zeal, vigor, and boyishness of said boys; that such is a risk reasonably incident to the employment, and if injury result to an employé therefrom during the progress of the work in which he is employed, through the curiosity or pranks such as boys of immature age are wont to indulge in, and which the employer must be held to know of when he employs them, the injury is one "arising out of the employment." The difficulty as to that theory in this case is that there is no evidence in this record that Connell or his coworker, Mergen, were boys. Connell, the record shows, was 21 years of age and over. We find nothing in the record to show the age of Mergen. Certainly a person over 21 years of age can scarcely be placed in the category of boys.

The Wisconsin Industrial Commission allowed a claim in the case of a 14 year old boy who was returning to work after lunch, who went aside from a direct route, and out of curiosity placed his hand under a machine hood, and lost his forearm by the action of the knives. The Wisconsin Commission said that the natural curiosity of a boy of 14 years must be taken into consideration, that a common-sense construction of the law should be given, and that the responsibility for such accident should be placed on the employers who put such children in places of danger, rather than that the children should bear the entire loss themselves.

In Hulley v. Moosbrugger, 87 N. J. Law, 103, 93 A. 79, it appeared that young men and boys were employed, and the court said: "It is but natural to expect them to deport themselves as young men and boys, replete with the activities of life and health. For workmen of that age, or even of maturer years, to indulge in a moment's diversion from work, to joke with or play a prank upon a fellow workman, is a matter of common knowledge to every one who employs labor. At any rate, it cannot be said that the attack made upon the decedent was so disconnected from the decedent's employment as to take it out of the class of risks reasonably incident to the employment of labor." This case, it is true, was reversed by the Court of Errors and Appeals of New Jersey, 88 N. J. Law, 161, 95 A. 1007, L. R. A. 1916C, 1203, the court holding that an employer was not liable to make compensation for injury to an employé which was the result of horseplay or skylarking, so called, and that such accident did not arise out of the employment. There is much of common sense, however, in the language of the court in the opinion in 87...