Madison v. Key Work Clothes, Inc.

• Citation: 318 P.2d 991,182 Kan. 186
• Decision Date: 07 December 1957
• Docket Number: No. 40776,40776
• Parties: Nettie MADISON, Appellant, v. KEY WORK CLOTHES, Inc., Respondent, Appellee, Employers Mutual Liability Insurance Company, Insurance Carrier, Appellee.
• Court: Kansas Supreme Court

Page 991

318 P.2d 991

182 Kan. 186

Nettie MADISON, Appellant, v. KEY WORK CLOTHES, Inc., Respondent, Appellee Employers Mutual Liability Insurance Company, Insurance Carrier, Appellee.

No. 40776.

Supreme Court of Kansas.

Dec. 7, 1957.

Syllabus by the Court.

1. Where an employee falls and receives injuries while she is on her way to assume the duties of her employment, the proximate cause of which is not the employer's negligence, it is held, the injuries do not arise out of and in the course of employment and the district court properly denied an award of compensation--applying G.S.1949, 44-508(k).

2. Where ice and snow accumulate on a public sidewalk abutting the employer's premises and an employee falls on such public sidewalk by reason thereof in the middle of a big snow storm near the main entrance to the employer's premises on her way to work, the finding of the district court that the employer is not negligent is supported by substantial competent evidence and will not be disturbed on appeal.

3. As a general rule there is no absolute duty to keep public sidewalks free from ice or snow at all times. Where the precipitation is recent or continuous the duty to remove such obstruction as it forms cannot be imposed, and the dangers arising therefrom are viewed as the normal hazards of life, for which no owner or person in possession of property is held responsible.

4. Sound public policy requires that the voluntary payment of medical expenses or other benefits by a respondent to an employee who has sustained an injury, should never constitute an admission of liability under the workmen's compensation act to the detriment of such payor, where from the very beginning of the occurrence of such injury to an employee, the respondent questioned liability under the workmen's compensation act.

Walter B. Patterson, Fort Scott, argued the cause, and Sylvan Bruner and Charles J. Rondelli, Pittsburg, were with him on the briefs, for appellant.

Paul L. Wilbert, Pittsburg, argued the cause, and A. B. Keller, and Randall D. Palmer, Pittsburg, were with him on the briefs, for appellees.

SCHROEDER, Justice.

This is a workmen's compensation case. The trial court entered judgment denying an award of compensation, thereby affirming the ruling of the workmen's compensation commissioner, and the claimant appeals.

Claimant was an employee of respondent and had been continuously so employed for about five years. Claimant operated a sewing machine in the making of clothing in respondent's factory located in Fort Scott. She was required to check in between 7:15 and 7:30 in the morning. On the morning of January 24, 1956, when she walked to respondent's factory from her home, a block and a half away, it was snowing. It had snowed in the night and the snow continued, causing the ground to be covered with ice and snow.

Respondent's factory faces south on Wall Street in Fort Scott. In order to enter the factory on her way to work, claimant had to cross Wall Street. The proper route for claimant to cross Wall Street was at the intersection on a crosswalk, but claimant crossed Wall Street on the morning of January 24, 1956, on her way to work diagonally in a northwesterly direction. After crossing the street in this manner she had to cross a sidwalk abutting on the south side of the factory. At the time of crossing Wall Street claimant was in the company of another employee. While crossing the sidewalk claimant slipped and fell and suffered broken bones in her leg and hip. A number of other employees saw her fall. She was taken in a taxi to the hospital where her bones were set. After about three weeks an infection or deterioration of the bones developed and she has not recovered. She had been in the hospital continuously to the date of hearing before the examiner, February 20, 1957.

The south wall of respondent's factory building is adjacent to the sidewalk which is 11 feet 5 3/4 inches wide, from the curb of the street to the wall. The door in the wall through which employees entered the factory was the main entrance and is approximately 20 feet west of the corner of the factory building which is situated on the northwest corner of the intersection. The door is recessed 2 feet and 10 inches from the sidewalk. Wall Street is paved with brick.

There was some conflict in the testimony concerning the exact spot in which claimant fell, she testified that she had fallen with her hand on the entrance door handle. All other witnesses who saw claimant fall testified that she had fallen near the curb. The trial court's findings of fact numbered 5 and 6 state:

'5. The Claimant, wearing boots, proceeded with another employee from a southeasterly direction across the street and at the north curb and south edge of the sidewalk she fell. Evidence is not clear whether she slipped as her foot was leaving street level or when she stepped on the walk, but she was down some 3 feet north of the south edge of the sidewalk and 6 or 7 feet south of the doorway.

'6. There was an accumulation of several inches of snow and ice on the landscape including the sidewalk and there was no clearing or other treatment of the walk in front of the door. It was snowing at the time and continued some hours thereafter. The snow was cleared at this point the next morning.'

On February 27, 1956, K. W. Pollock, president of respondent company, dictated a letter which was sent to claimant. The pertinent portion of this letter reads:

'P.S. I think we can make some arrangements to help you with your financial problems while you are completing recovery after you get out of the hospital. It appears probable that the accident will not be covered by the compensation insurance. However, as I told you, we will pay for the medical and hospital expenses above the blue cross and blue shield coverage. I have some hopes that we might be able to get this from the insurance company, but will consult my lawyer regarding this in more detail when I get a chance.'

On March 29, 1956, Mr. Pollock again sent a letter to claimant, the pertinent portion of which reads:

'I went up to see Walter Patterson, and he showed me an agreement signed by you, appointing him as your attorney to make a claim on us for workmen's compensation * * * since you are apparently taking this kind of legal action, no doubt, I had better cease any other form of assistance to you, * * * on this matter the insurance man seemed to be fairly confident that compensation would not be due in a case of this nature * * * it certainly appears that we should do nothing further pending this compensation action which Patterson is bringing. I had also guaranteed Mercy Hospital that I would take care of the bill in excess of your Blue Cross and Blue Shield benefits, but in view of this development, I am terminating this agreement with them. I will, of course, expect any compensation you receive to cover your hospitalization costs and so forth to be applied against any portion of the bill which we might otherwise have to pay.'

The foregoing statement represents a substantial portion of the facts summarized from the findings made by the trial court in this action. Upon the record before us, we do not hesitate to say that such findings are supported by substantial evidence. Other findings of the trial court will be indicated as the opinion progresses.

The jurisdiction of the supreme court on appeal in a workmen's compensation case is specifically limited to the determination of questions of law. As to questions of fact this court reviews the record only to determine whether it contains substantial evidence to support the trial court's finding, and in so doing, all the evidence is reviewed in the light most favorable to the prevailing party below. If substantial evidence appears such finding is conclusive and will not be disturbed on review. Fitzwater v. Boeing Airplane Co., 181 Kan. 158, 309 P.2d 681. The latest application of the rule is found in Wilbeck v. Grain Belt Transportation Co., 181 Kan. 512, 313 P.2d 725, and Murray v. Ludowici-Celadon Co., 181 Kan. 556, 313 P.2d 728.

The principal question presented for review is whether claimant's injuries arose out of and in the course of her employment. Appellant argues that this case comes within the 'on the premises' rule and cites many cases holding that where an injury occurs to an employee while on the premises of the employer it is compensable under the workmen's compensation act. Sedlock v. Carr Coal Min. & Mfg. Co., 98 Kan. 680, 159 P. 9, L.R.A.1917B, 372, and Corpora v. Kansas City Public Service Co., 129 Kan. 690, 284 P. 818.

The question presented for review to this court brings into direct focus the provisions of G.S.1949, 44-508(k), which reads:

'The words 'arising out of and in the course of employment' as used in this act shall not be construed to include injuries to the employee occurring while he is on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which injury is not the employer's negligence.'

The most recent case decided by this court where an employee was injured 'off the premises' and in which compensation was denied is Murray v. Ludowici-Celadon Co., supra. This case is directly in point and controls the decision herein with respect to the place where claimant was injured. In the Murray case claimant, after he had cased working and was on his way home, fell on ice and snow covering an alley on both sides of which the respondent maintained a parking lot for the employees. This court there held that the injury did not arise out of and in the course of employment, where the proximate cause of his injuries was not due to the respondent's negligence, and the respondent had assumed no responsibility over or duty to maintain the alley free from snow and ice.

The only distinction between the Murray case and this is that there the employee was on his way home from work and here the claimant was on...