Kennedy v. The Hull & Dillon Packing Company

• Decision Date: 08 March 1930
• Docket Number: 29,264
• Citation: 130 Kan. 191,285 P. 536
• Court: Kansas Supreme Court
• Parties: MINNIE A. KENNEDY, Appellee, v. THE HULL & DILLON PACKING COMPANY, and UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellants

285 P. 536

130 Kan. 191

MINNIE A. KENNEDY, Appellee, v. THE HULL & DILLON PACKING COMPANY, and UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellants

No. 29,264

Supreme Court of Kansas

March 8, 1930

Decided January, 1930.

Appeal from Cherokee district court; JOHN W. HAMILTON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WORKMEN'S COMPENSATION ACT--Injury in Course of Employment--Salesman on Highway. A traveling salesman for a packing house was employed to solicit orders for goods and make collections from customers in an allotted territory, including several counties, and to travel over the territory in an automobile in the performance of his duties. While traveling over a highway he came in contact with a wire of high voltage and was killed. Compensation was claimed under the workmen's compensation act. It is held under the evidence that his death occurred within the allotted territory and in the course of his employment.

2. SAME--Nature of Cause of Injury. Under the evidence compensation cannot be denied to plaintiff on the theory that the workman met his death by an act of God.

3. SAME--Causal Connection Between Employment and Injury. Nor can it be held that there was no causal connection between the employment of the workman and the injury he sustained.

4. SAME--Nature of Employment--Interstate Commerce. Neither can compensation be refused to plaintiff on the ground that the workman was engaged in interstate commerce.

Al. F. Williams, Don H. Elleman, both of Columbus, A. B. Keller, George R. Malcolm, C. A. Burnett, all of Pittsburg, and Edgar Fenton, of Kansas City, Mo., for the appellants.

A. J. Curran, of Pittsburg, for the appellee.

Johnston, C. J. Jochems, J., dissenting.

OPINION

JOHNSTON, C. J.:

This case involves a claim for compensation under the workmen's compensation law. Samuel G. Kennedy was an employee of the Hull & Dillon Packing Company, and had been for about twenty-five years, and on June 20, 1928, suffered an injury which resulted in his death. The plaintiff, his widow, made a claim for compensation, and she was allowed compensation in the amount of $ 4,000, and the sum of $ 150 for funeral expenses. The Packing Company and the insurance carrier, the United States Fidelity and Guaranty Company, appealed from the award of the commission to the district court, where the findings and award of the commission were affirmed. The defendants appeal.

Samuel G. Kennedy was a traveling salesman and collector for the packing company located at Pittsburg, Crawford county, Kansas, and Kennedy was a resident of Pittsburg. His salary was $ 33 per week, and he was allowed not to exceed $ 22 per week for expenses. The packing company allotted him certain territory in which to solicit and collect. He was expected to call on the trade in the territory allotted to him, being the towns of Opolis, in Crawford county, Kansas; Columbus, Crestline, Galena and Lawton in Cherokee county, Kansas; Hockerville, Quapaw, Century, Picher, Carden and Commerce, in Ottawa county, Oklahoma; Waco, Asbury, Carl Junction and Smithfield, in Jasper county, Missouri. On the morning of June 20, 1928, he started on a trip from Pittsburg, expecting to make his first call at Crestline, in Cherokee county, and when he reached a point eight and one-half miles south of Pittsburg, he ran into an electric wire which had been thrown across the road in a storm, and was killed.

The contention of the defendant is that his death did not arise out of and in the course of his employment, in that he was on his way to assume the duties of his employment but had not reached the first stopping place on the trip. The first town that he was to make that day was Crestline, which was about sixteen miles from Pittsburg. It is insisted that Pittsburg, his home, from which he was traveling, although in the county of Crawford, was not one of the towns he was to make, and that he was not required to live at Pittsburg, where the plant is located. The orders that were taken by him were reported to the packing company by telephone, and no direct evidence was produced as to his going to the office of the plant when he turned in the money collected and made settlements with the defendant packing company. It was shown that the pay roll closed on each Saturday and the workmen were paid the following Tuesday. The evidence is that at all times when traveling in his district he was under the supervision of his employer. Since he was a traveling salesman in a designated territory, the traveling was a part of his duty, and he was at liberty to select his course in going from one store to another within that territory. The commissioner found that such a salesman is a necessary part of the trade or business of the packing company, and is as necessary a part of selling meat products and collecting the price of them as an employee who works in the plant slaughtering animals. The defendants emphasize the fact that Kennedy was not required to live in Pittsburg, that he could have lived in any one of the towns where there were stores that he visited. He chose to live in Pittsburg, where no calls were to be made on the trade and therefore could not be regarded as being in the course of his employment. It is also contended that the injury and death were caused by an act of God, that the storm which blew down the poles carrying the high-powered electric wires produced his death, was a common hazard, had no causal connection with his employment and should be regarded as an act of God, something that no human foresight could anticipate or prevent. On the other hand, it is said that the violent storm which blew down the poles carrying the wires had ceased and his death was caused by wires of high voltage thrown to and left on the highway, and in no sense was caused by the violence of nature; that the deceased lost his life through a human agency, namely the electric wires and the poles carrying them.

It is claimed that the defendant was operating under the workmen's compensation law, and that Kennedy was one of its employees, who solicited orders for its products in an allotted territory and made collections from its customers. Being a traveling salesman, he was required to use the highways in calling on customers within the zone assigned to him. In that zone were the towns already mentioned in Crawford and Cherokee...