Kopplin v. Sedgwick County

• Decision Date: 09 June 1934
• Docket Number: 31755.
• Citation: 32 P.2d 1058,139 Kan. 837
• Parties: KOPPLIN v. SEDGWICK COUNTY.
• Court: Kansas Supreme Court

32 P.2d 1058

139 Kan. 837

KOPPLIN v. SEDGWICK COUNTY.

No. 31755.

Supreme Court of Kansas

June 9, 1934

Syllabus by the Court.

County in exercise of normal functions, not engaged in trade or business does not operate under Workmen's Compensation Act, and cannot make binding election to come within its provisions (Rev. St. Supp. 1933, 44--501 et seq.).

Municipalities in the exercise of their normal functions and not engaged in trade or business, do not operate under the Workmen's Compensation Act, and they are not authorized by said act to elect to come within its provisions and be bound thereby.

Appeal from District Court, Sedgwick County, Division No. 1; Ross McCormick, Judge.

Proceeding under the Workmen's Compensation Act by Leo H. Kopplin employee, opposed by the County of Sedgwick, employer. From an adverse judgment of the district court, on appeal from the Compensation Commissioner, the employer appeals.

Judgment reversed, and cause remanded, with instructions.

John W Wood, of Wichita, for appellant.

W. D Jochems, J. Wirth Sargent, C. Edward Murray, and Emmet A. Blaes, all of Wichita, for appellee.

THIELE Justice.

This appeal involves the right of election by a municipal corporation under the Workmen's Compensation Act (Rev. St. Supp. 1933, 44--501 et seq.).

The plaintiff was an employee of Sedgwick county, which prior to December 23, 1930, had filed its election to come within the provisions of the Workmen's Compensation Act. He sustained injuries on December 23, 1930; the necessary proceedings were had and he received composition at the rate of $14.40 per week until January 16, 1933, the same being paid by the insurance carrier which then went into receivership, the county not having paid any part thereof. On August 3, 1933, the commissioner of workmen's compensation made an award against the county for the same weekly amount, and on November 18, 1933, the award was affirmed by judgment of the district court. It was conceded the workman was totally disabled, and it was stipulated that the only question to be determined by the commissioner, and therefore to be determined by this court on the appeal, was whether the county commissioners were authorized to bind the county to its employees by an election to come within the provisions of the Workmen's Compensation Act.

The record is silent as to just what sort of work the plaintiff was engaged in at the time of injury, but it is not contended that the work, whatever it was, was being done by the county in the exercise of any proprietary function.

Appellee states he has no intention to challenge the decisions of this court in which it has been held that a municipal corporation ordinarily is not within the terms of the Workmen's Compensation Act when the work the employee was doing at the time of the injury was a part of a governmental function as distinguished from a proprietary function, but does contend that where a county had, previous to the injury, elected to come within the terms of the act, such election was valid and binding.

In view of the many decisions of this court reviewing the changes made from time to time in the Workmen's Compensation Act, it is not necessary or advisable to go over all the ground again. The following portions only will be considered.

Since the enactment of the first act, it has been provided that it should apply only to employment in the course of the employer's trade or business (Laws 1911, c. 218, § 6; Laws 1913, c. 216, § 2, Laws 1917, c. 226, § 1, R. S. 44--505; Laws 1927, c. 232, § 5; R.S.Supp. 1933, 44--505). It was held in Gray v. Board of Com'rs of Sedgwick County, 101 Kan. 195, page 197, 165 P. 867, 868, L.R.A. 1918F, 182, in construing the 1913 act: "But persons corporate or incorporate in order to be employers within the act must employ the workmen in the course of their trade or business, terms which do not naturally or properly apply to a county in the administration of its affairs. 'Business' has been held to be synonymous with 'calling,' 'occupation,' or 'trade,' and defined as 'any particular occupation or employment engaged in for a livelihood or gain,"' and that a county in resurfacing a county road was not engaged in trade or business within the meaning of the act. And a similar conclusion was reached in Robertson v. Board of Com'rs of Labbete County, 122 Kan. 486, 252 P. 196. A brief review of the original act and as it has been amended shows that by Laws 1911, c. 218, § 8, it applied to employers by whom fifteen or more workmen were employed, employers of a less number having a right of election to come under the act. This section was amended by Laws 1913, c. 216, § 3, to make the act apply to employers of five or more employees, with a similar right of election. In 1917 (Laws 1917, c. 226, § 1), the proviso with reference to electing to come under the terms of the act was materially broadened to read: "Employers whose work, trade or business is not such as described and included in this section of this act *** may elect to come within the provisions of this act," etc. This section was again amended in 1927 (Laws 1927. c. 232), but the provision as to election was not changed.

In defining who is a "workman," the following definition appears in Laws 1913, c. 216, § 4 "'Workman' means any person who has entered into the employment of or works under contract of service or apprenticeship with an employer, but does not include a person who is employed otherwise than for the purpose of the employer's trade or business." Substantially the same language remained in the act until Laws 1927, c. 232, § 8, was enacted, and it defined the word as follows: "'Workman' means any person who has entered into the employment of or works under contract of service or apprenticeship with an employer," the remaining clause of the definition above quoted being eliminated. The 1911 act (Laws 1911, c. 218, § 9), defined "employer" as follows: "'Employer' includes any person or body of persons corporate or unincorporate, and the legal representatives of a deceased employer or the receiver or trustee of a person, corporation, association or partnership." This...