Laffery v. The United States Gypsum Company

• Decision Date: 06 June 1914
• Docket Number: 18,436
• Citation: 141 P. 241,92 Kan. 475
• Parties: MINNIE M. LAFFERY, Appellee, v. THE UNITED STATES GYPSUM COMPANY et al., Appellants
• Court: Kansas Supreme Court

141 P. 241

92 Kan. 475

MINNIE M. LAFFERY, Appellee, v. THE UNITED STATES GYPSUM COMPANY et al., Appellants

No. 18,436

Supreme Court of Kansas

June 6, 1914

Decided January, 1914.

Appeal from Marshall district court; SAM KIMBLE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

MINES AND MINING--Negligence--Falling Rock--Death of Employee--Liability of Mine Owner--Independent Contractor. The syllabus in Laffery v. Gypsum Co., 83 Kan. 349, 111 P. 498, except paragraph six thereof, is adopted as the syllabus in this case.

O. C. Mosman, John E. MacLeish, and W. W. Redmond, all of Marysville, for the appellants; Scott, Bancroft & Stevens, of counsel.

E. A. Berry, of Waterville, W. J. Gregg, and J. D. Gregg, both of Frankfort, for the appellee.

OPINION

SMITH, J.

This action has been tried three times in the district court. On the first trial the jury failed to arrive at a verdict; on the second trial verdict and judgment were for the plaintiff, and an appeal was taken to this court and the judgment was reversed. (Laffery v. Gypsum Co., 83 Kan. 349, 111 P. 498). The questions there presented are practically the same as are now involved. The judgment was then reversed for the failure of the trial court to submit a disputed question of fact, viz., whether a person who employed the workmen and superintended the operation of a gypsum mine was an independent contractor or the superintendent for the owner. On the third trial the question was submitted to the jury upon the evidence, and it was found that Drake was the superintendent and not an independent contractor, and judgment was rendered against the owner as well as the superintendent. From this judgment both Drake and the gypsum company appeal.

The general statement of the facts in controversy is the same now as before, and is sufficiently stated in the former opinion, supra, to give an understanding of the issues involved; also, the several propositions of law stated in the first, second, third, fourth, fifth, seventh and eighth paragraphs are pertinent to this decision and are adopted as the law of this case. The sixth paragraph now becomes immaterial, because the question of fact was submitted to and passed upon by the jury. The eighth paragraph, relating to the sufficiency of the evidence, still coincides with the views of the court, although the evidence is somewhat different than it was on the former trial.

The appellant makes several assignments of error, the first and second of which are based upon the propositions that the mine was operated by Drake as an independent contractor of the appellant company, and that the company did not assume control of the mine, and hence was not responsible for the injury and death of appellee's husband. By the pleadings the issue was fairly presented.

The appellee desired to prove that the appellant company had accident insurance in the Travelers Insurance Company upon the workmen employed at the time of Laffery's death; as bearing upon this fact the appellee introduced a written and printed report which was signed by "J. E. Drake, Supt. United States Gypsum Co. Mines." This report was mailed by Drake to the appellant company and by the appellant company to the insurance company. It is contended that Drake, whatever his relationship was, could not by any declaration or act subsequent to the accident bind the company. The report does not purport to bind the company, but does purport to show that the accident occurred through the fault of the deceased. In connection with the other evidence, especially the use made of the report by the appellant company, it was properly admitted as tending to prove that Drake was such superintendent and not an independent contractor. The appellee also introduced various correspondence between the appellant company and the insurance company and the policy of insurance issued to the appellant. The question of its relevancy is determined by the seventh paragraph of the syllabus of the former opinion.

The first and second assignments of error constitute, in effect, a demurrer to appellee's evidence and a request for an instruction for appellant. There was no error in the ruling involved.

As indicated in the former opinion, if Drake was an independent contractor and the company retained no control over the work or workmen, the relation of master and servant did not exist between the appellant company and the deceased and the company would not be responsible in damages for the accident. This, however, is subject to the exception that if the contract between the company and the contractor required the...