Lessley v. Kansas Power & Light Co.

• Decision Date: 12 May 1951
• Docket Number: No. 38288,38288
• Citation: Lessley v. Kansas Power & Light Co., 231 P.2d 239, 171 Kan. 197 (Kan. 1951)
• Parties: LESSLEY v. KANSAS POWER & LIGHT CO.
• Court: Kansas Supreme Court

Page 239

231 P.2d 239

171 Kan. 197

LESSLEY v. KANSAS POWER & LIGHT CO.

No. 38288.

Supreme Court of Kansas.

May 12, 1951.

Rehearing Denied June 15, 1951.

Syllabus by the Court.

The defendant, authorized, licensed, and operating as a public utility and engaged in the production, sale, and transmission of electric power, contracted for the erection of a new building in addition to buildings already on its premises and the installation of steam boilers, turbines, generators and other equipment necessary and essential to the production, sale, and transmission of electricity. The contractors entered into an agreement with a subcontractor to perform a part of the work. Just as a workman, employed by the subcontractor, had finished cutting a piece of iron for a pipe hanger in a room of the defendant's Tecumseh plant and was ready to leave that room and install the hanger in connection with the construction of the new building and the installation of equipment therein at such plant, he was seriously injured as a result of an explosion which occurred within the plant. The workman brought an action under the common law against the defendant public utility, founded on negligence to recover damages for the injuries he had sustained. Held, (1) the work in which the plaintiff was engaged at the time of the explosion was a part of the defendant's trade or business within the meaning of the subcontracting section of the Workmen's Compensation Act, G.S.1935, 44-503, now G.S.1949, 44-503, and (2) the trial court properly sustained a motion for judgment on the pleadings and rendered judgment against plaintiff on the ground that under the facts disclosed by all the pleadings plaintiff and defendant were subject to the Workmen's Compensation Act and the plaintiff's sole and exclusive remedy was that provided by its terms.

Ward D. Martin, of Topeka, argued the cause, and E. H. Hatcher, Harold E. Jones, A. Harry Crane and Harry Snyder, Jr., all of Topeka, were with him on the brief, for the appellant.

Clayton E. Kline and Ralph W. Oman, both of Topeka, argued the cause, and M. F. Cosgrove, Balfour S. Jeffrey, Robert E. Russell, Philip E. Buzick, Willard N. Van Slyck, Jr., Robert Stone, James A. McClure, Robert L. Webb and Robert A. McClure, all of Topeka, were with them on the brief, for the appellee.

Roy N. McCue and Howard F. McCue, both of Topeka, for Ann Sheahan and Julia A. Dahlene, as amici curiae.

PARKER, Justice.

This was a common law action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. The plaintiff appeals from the trial court's action in sustaining the defendant's motion for judgment on the pleadings.

The pleadings consist of an amended petition, an answer, and a reply. When, as here, such pleadings are tested by a defendant's motion for judgment consideration is limited to well pleaded allegations of the petition and reply, which must be accepted as true, supplemented by any allegations of the answer admitted by the reply, Simmons v. Gill, 161 Kan. 123, 166 P.2d 574; Northington v. Northington, 158 Kan. 641, at page 643, 149 P.2d 622, at page 623, and cases cited, and the motion should not be sustained unless upon the facts as conceded, it clearly appears the party challenging the pleadings is entitled to judgment, Schlemeyer v. Mellencamp, 159 Kan. 544, 156 P.2d 879; Smith v. City of Emporia, 168 Kan. 187, 211 P.2d 101.

From what has just been stated it becomes apparent that in determining whether a motion of the character here in question should be sustained a court is not concerned with conclusions of the plaintiff as to the force and effect to be given the facts pleaded in his petition and reply or with disputed questions of fact raised by the defendant's answer and that allegations pertaining to such matters have no place in a statement outlining the factual picture on which it bases its decision. The instant case is no exception. Consequently we have examined the pleadings and, without attempting to detail their contents or expand specific averments relied on in support of certain arguments advanced by the parties, shall first relate such of the well pleaded and, for purposes of the ruling on the motion, admitted facts as are essential to a proper understanding of the general factual situation. They can be summarized as follows:

On or about March 1, 1947, the defendant, The Kansas Power & Light Company, was, and for a long time prior thereto had been, a corporation organized for profit under the laws of the State of Kansas. It was authorized to do business as a public utility and was engaged in the production, sale, and transmission of electric power, alleged by plaintiff to be its regular trade and business, with its office and principal place of business in the city of Topeka. Under and by virtue of the articles of incorporation issued it by the State of Kansas it was authorized, among numerous other things not here material, to engage in various other lines of business and in addition to do all things necessary for the conduct of a general electric, artificial or natural gas, light, heat, power, water, ice, street railway and stage or bus line business also to build, construct, purchase, own and operate power plants, power houses, dams, works, transmission and distribution lines and systems, mains and services, with all necessary equipment for carrying on such operations. In the transaction of its business it was operating under the Workmen's Compensation Law of Kansas, having filed an election to come under the provisions of such law as a public utility.

In March 1947 defendant owned and operated a large electric generating station at Tecumseh in which were installed four turbines consisting of two 6,000 KW units, one 15,000 KW unit and one 25,000 KW unit, together with boilers and other necessary equipment. On March 4, 1947, due to ghe necessity for increased capacity, defendant entered into a contract with the Missouri Valley Constructors, Inc., and Winston Brothers Company for the installation of an additional 30,000 KW unit, to cost approximately $5,000,000.00, immediately adjacent to and to the west of its then existing plant. The work of installing this unit consisted of the necessary building addition, substructure, foundation, circulating water tunneling, extensions, equipment, supports, entrance and access structures and the other structures and appurtenances required or incidental to the housing and support of the 30,000 KW turbo-generator, together with the steam boiler and other auxiliary equipment incidental or appurtenant thereto and also the installation of such turbo-generator, together with the steam boiler and other auxiliary equipment. It should be noted that this contract was set forth in the answer and that all parties concede its terms and conditions are a part of the pleadings and entitled to consideration in determining the propriety of the trial court's action in sustaining the motion for judgment.

At the time defendant entered into the contract just mentioned, and at all times pertinent to the issues involved, it did not have in its regular employ persons skilled and experienced and regularly engaged in the construction of large buildings and the installation of large and heavy equipment therein. Nor did it have shovel cranes, concrete mixers, concrete bins, concrete towers, hoists, guy derricks, and other equipment necessary and required for the large construction project contemplated by the terms of the contract.

On the 28th day of January, 1948, the two principal contractors, heretofore mentioned, subcontracted to Daugherty Company, Inc., the portion of the work consisting generally of all power piping in connection with the installation of the new turbogenerator with surface condenser and auxiliaries and a new 30,000 pound per hour steam generator and auxiliaries.

Plaintiff was a welder by trade and on the 9th day of December, 1948, he was an employee of Daugherty Company, Inc., working at his trade as a welder and cutting pipe to be installed in the new installation. He was working in what is called the pipe shop located in the original building of the defendant. Two hundred other employees were working on the new addition heretofore described. At approximately 3:20 P.M. of that day an explosion occurred in the pipe shop in the Tecumseh power plant in which plaintiff was working, which was under the exclusive and complete control of the defendant. The explosion broke, smashed, and tore into rubble the reinforced concrete floor of the pipe shop. The smashed and destroyed the floor upon which plaintiff was standing and knocked down brick walls in the room in which he was working. Immediately after the first explosion a second violent explosion occurred in the plant which filled the room in which plaintiff had been working with burning gas and vapor, flying dust, concrete, brick and debris.

At the time of the explosion defendant was the producer of electric power through the use of steam boilers, turbines, generators and other equipment. The boilers used and operated by the defendant were fired with gas, oil, and coal to produce the electric power. Such explosions were of gaseous fumes and vapors, the exact contents of which were unknown, and they, the fire following thereafter, and the injuries received by plaintiff, were the result of defendant's carelessness and negligence in the operation and maintenance of its power plant at a time when such plant, together with all materials used in the producing of electricity, and the pipes, conduits and means of transmission of electric current as well as the pipe shop floor and the cavities thereunder were solely and exclusively under the control, care, and operation of the defendant.

As a result of the explosions and subsequent fire plaintiff was severly injured during the course of his employment as an employee of Daugherty Company, Inc., and thereby...