Leslie v. Reynolds
| Decision Date | 07 April 1956 |
| Docket Number | 40138,Nos. 40139,s. 40139 |
| Citation | 295 P.2d 1076,179 Kan. 422 |
| Parties | Milton O. LESLIE, Appellee, v. Eugene C. REYNOLDS and Commercial Standard Insurance Company, Appellants. Hazel Marie LESLIE, Appellee, v. Eugene C. REYNOLDS and Commercial Standard Insurance Company, Appellants. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. One of the purposes intended by Ch. 74, § 1, L.1933 Special Session, G.S.1949, 44-511(1), in amending Ch. 232, § 11, L.1927, was to define 'wages' and to prescribe with definiteness what the term includes; another was to make the right of contract paramount in the relationship between an employer and an employee in determining wages under the Workmen's Compensation Act, and to place the statutory definition of wages on the same basis as the decisions of this court with respect to liability of the employer to the employee under the Act.
2. The term 'money rate' as used in G.S.1949, 44-511(1) construed, and held: To mean all items of compensation agreed upon by an employer and an employee in a contract of hiring which are measurable in money and are recompense under the contract of hiring in force at the time of the accident, whether in the form of money paid or as a real and definite economic gain to the employee, except when such contract of hiring includes 'board and lodging' and the money rate of such advantages is not fixed at the time of hiring.
3. The term 'board and lodging' as used in G.S.1949, 44-511(1) may be used in the disjunctive or conjunctive sense. The word 'board' as used in this term may be separately applied in a sense limiting it to food in the form of meals; the word 'lodging' as used in this term may be separately applied in a sense limiting it to a place of abode or habitation.
4. A bonus is not a gift or gratuity but is a sum fixed for services, or upon a consideration in addition to or in excess of that which would ordinarily be given.
5. In a workmen's compensation case the record examined, considered, and held: (1) The district court did not err when, in determining the average weekly wage, it ascertained and included therein (a) the money rate of the use of an automobile furnished by an employer to an employee under a contract of hiring as recompense thereunder when its money rate was not fixed by the contract of hiring; (b) the money rate of foodstuff including meat, eggs, milk, butter and garden produce furnished by an employer to an employee under a contract of hiring as recompense thereunder when its money rate was not fixed by the contract of hiring, such item of foodstuff not constituting 'board' within the meaning of the term 'board and lodging' as used in G.S.1949, 44-511(1); and (c) a money payment by an employer to an employee in addition to a stated monthly draw as a bonus for services rendered under a contract of hiring, such money payment not constituting a 'gratuity.' (2) The district court erred when, in determining such wage rate it included therein the money rate of the use of a house with all utilities paid furnished by an employer to an employee as recompense under a contract of hiring when its money rate was not fixed therein. The use of the house under the facts and circumstances set forth in the opinion is 'lodging' within the meaning of the term 'board and lodging' as used in G.S.1949, 44-511(1).
Donald R. Newkirk, Wichita, argued the cause, and Howard T. Fleeson, Homer V. Gooing, Wayne Coulson, Paul R. Kitch, Dale M. Stucky, Robert J. Hill, Gerrit H. Wormhoudt and Theodore C. Geisert, Wichita, were with him on the briefs, for appellants.
John Callahan, Wichita, argued the cause, and Dale Kidwell, George W. Ball, Jack H. Greene and Kenneth M. Nohe, Wichita, were with him on the briefs, for appellees.
These appeals arise out of proceedings under the Workmen's Compensation Act G.S.1949, 44-501 et seq. Both respondent employer and his insurance carrier have appealed from judgments allowing recovery to each claimant. Since each appeal involves the same question, they were ordered consolidated in this court.
The record discloses without dispute that respondent Eugene C. Reynolds is the owner of an 850-acre beef and dairy ranch located near Fall River, Kansas; that the claimants, Milton O. Leslie and Hazel Marie Leslie, are husband and wife; that claimant Hazel Marie Leslie is the sister of respondent Reynolds; that during the month of October, 1953, respondent Reynolds entered into an oral contract of hiring with claimants whereby they were jointly employed to operate his ranch. The terms of the contract of hiring were that respondent Reynolds was to pay the claimants jointly a monthly draw of $200, which was subject to being increased during any month if the claimants needed it; to furnish the use of a completely modern house on the ranch, with all utilities paid; to furnish the use of a new automobile for ranch and personal use, with all expenses of operation paid including gas, oil, repairs, insurance and taxes; to furnish all foodstuff grown on the ranch and needed for the preparation of claimants' family meals, including beef, pork, milk, butter, eggs and garden produce; and to further compensate them at the end of each year's operation of the ranch in cash bonuses or in livestock for the work they would do in operating the ranch.
Although the ranch was primarily operated as a Grade-A Dairy, there were pigs, calves, chickens, horses and a large herd of whiteface cows, which the claimants cared for. In addition, the claimants put up hay from the grass land and farmed the tillable land of the ranch.
Pursuant to the contract of hiring, claimants and their family moved to the ranch during October, 1953, and operated it in a manner satisfactory to respondent Reynolds and in accordance with the contract of hiring. On November 6, 1954, claimants were going to Wichita on ranch business when both were severely injured in an automobile accident.
At a hearing before the Workmen's Compensation Commissioner on April 26, 1955, the Commissioner found, in addition to the admission of the parties, that the claimants were injured by accident arising out of and in the course of their employment, and that both claimants received as wages under the contract of hiring with respondent Reynolds, the following items: $200 per month cash; $85 per month house rent, with utilities paid; $26.25 per month for automobile operations, all of which totaled $311.25 per month, or $71.82 per week. In addition to this amount, and under the contract of hiring, claimants received foodstuff (meat and other items) in a sum equal to $25 per week, and a bonus at the end of 1954, which figured at the rate of $15.38 per week, for a total weekly wage of $112.20, of which one-half belonged to each claimant, and that the average weekly wages of each claimant was $56.10.
The Commissioner further found that Milton O. Leslie was totally and permanently disabled; that he was entitled to receive compensation at the rate of $28 per week for a period not to exceed 415 weeks commencing November 13, 1954; that compensation was due and owing from November 13, 1954, to May 28, 1955, a period of 28 weeks at $28 per week, totaling in the sum of $784, which should be paid in one lump sum and that the balance of compensation awarded Milton O. Leslie should be paid at the rate of $28 per seek until fully paid, or until the further order of the Commissioner. On the basis of such findings the Commissioner awarded compensation in favor of Milton O. Leslie and against respondent Reynolds and his insurance carrier in the amounts and for the period indicated.
With respect to the claim of Hazel Marie Leslie, the Commissioner found that, by reason of the amputation of her lower left leg as a result of the accident, she was entitled to receive compensation at the rate of $28 per week for 175 weeks, plus 15 weeks healing period, a total of 190 weeks; that compensation was due and owing to May 28, 1955, a period of 29 weeks, totaling in the sum of $812, which should be paid in one lump sum, and the balance of compensation awarded Hazel Marie Leslie should be paid at the rate of $28 per week until fully paid. An award was made in favor of Hazel Marie Leslie and against respondent Reynolds and his insurance carrier on the basis of such findings in the amount and for the period indicated.
The Commissioner further found that respondent Reynolds and his insurance carrier should pay the sum of $1,500 to each claimant for medical, hospital and nursing expenses incurred for their care and treatment.
On appeal, the district court found that the findings of the Commissioner were supported by competent evidence and the award to each claimant entered by the Commissioner on such findings and the stipulation was proper, and that judgment should be rendered in favor of each claimant in accordance therewith. Based upon such findings, the district court entered judgment in favor of each claimant and against respondent Reynolds and his insurance carrier in the same amount as awarded by the Commissioner with the exception of total lump-sum payments ordered to be paid each claimant, not here material. Following the entry of the judgments, respondent Reynolds and his insurance carrier, Commercial Standard Insurance Company, perfected their appeals to this court.
For the purpose of identifying the parties in this court, respondent Reynolds and his insurance carrier will be referred to as appellants, and claimants Milton O. Leslie and Hazel Marie Leslie will be referred to as appellees.
In a preliminary way we note there is no claim that the findings of the district court are not supported by competent evidence. On the contrary the questions of the employment of Hazel Marie Leslie and the equal division of earnings between the appellees are not now urged, although specified as error. We shall consider them as having been abandoned. When these appeals...
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