McCormick v. The City of Kansas City

• Decision Date: 12 January 1929
• Docket Number: 28,368
• Citation: 127 Kan. 255,273 P. 471
• Parties: HUGH MCCORMICK, Appellant, v. THE CITY OF KANSAS CITY, Appellee
• Court: Kansas Supreme Court

273 P. 471

127 Kan. 255

HUGH MCCORMICK, Appellant, v. THE CITY OF KANSAS CITY, Appellee

No. 28,368

Supreme Court of Kansas

January 12, 1929

Decided January, 1929.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

WORKMEN'S COMPENSATION ACT--Work Incidental to Proprietary Business of City. A city, in the exercise of its proprietary functions through the water and light department of the city, manufactured, furnished and sold to citizens and industrial plants, light, heat and power and received pay for the same. Officers and employees of that department occupied and carried on some of the proprietary business in the city hall which was also occupied by other officers of the city engaged in exercising governmental functions of the city. The city hall was heated from a near-by boiler plant of the city in which plaintiff was working, and where in due course of his employment he accidentally sustained a serious injury which totally incapacitated him. He claimed compensation under the workmen's compensation act. Held, that the work he was doing was so closely related and incidental to the proprietary business carried on by the water and light department of the city as to be a part of it, and that plaintiff is entitled to compensation, although the heat furnished for the city hall was provided in part for the benefit of other officers and employees exercising the governmental functions of the city.

W. W. McCanles, of Kansas City, Mo., for the appellant.

L. S. Harvey, Clyde C. Glandon and John C. O'Brien, all of Kansas City, for the appellee.

OPINION

JOHNSTON, C. J.:

This action was brought under the workmen's compensation act. Hugh McCormick, an employee of Kansas City, a municipal corporation, was accidentally injured on March 19, 1924, while working in a steam-heating plant, which is a part of the water and light department of the city, operated for trade and gain. He was an engineer who assisted in operating the plant which was some distance away from the city hall, and from which steam was furnished to heat the city hall and the fire department. At the close of plaintiff's evidence the defendant filed a demurrer against it upon the ground that the plant in which the plaintiff was working was maintained to furnish heat to the officers and employees occupying the city hall who were there engaged in the governmental functions of the city, and that the case did not come within the compensation act. In considering the demurrer the court reviewed the evidence produced by plaintiff and made the following findings of fact:

"The defendant, Kansas City, Kan., is a municipal corporation, and that as such defendant owns, maintains and operates a water and light department, and is engaged in connection therewith in business trade and gain; that it manufactures, furnishes light and power to the citizens of Kansas City, Kan., and receives pay for said service; that it furnishes heat, light and power to various manufacturing plants and establishments operating in said city and receives pay for said services.

"The court further finds, that on the 19th of March, 1924, the plaintiff was in the employ of the said defendant; that he was running an engine in the boiler room, maintained and operated by the defendant at Sixth street and Armstrong in Kansas City, Kan.; that said boiler room was maintained by said defendant for the purpose of furnishing heat to the city hall in Kansas City, Kan.; that the city water and light department maintained its main office in said city hall; that the water and light bills for water and light service furnished by the defendant are paid at the office in said city hall; that the commissioner of the water and light department is housed in the city hall; that in the basement of the city hall the said water and light department keep a large amount of the supplies of said department, the water meters are kept and repaired there, the light bulbs, wires and supplies are kept at said place and are sold by the city to purchasers at said place; the water and light department keep trouble men in the basement, to make repairs upon various appliances in the water and light department in said place and for the purpose of going out on calls to the various parts of the city to make repairs in connection with said department; that the basement is heated from the boiler room in which the plaintiff was working while in the employ of the defendant.

"The court further finds that on the aforesaid date, to wit: the 19th of March, 1924, the plaintiff while shoveling coal from the upper deck in said boiler room was caused to slip and fall and receive a serious injury, which caused him to be totally incapacitated for all time; that he suffered said injury by accident growing out of and in the due course of his employment.

"The court further finds that after the plaintiff's injury he made all necessary, due and legal demands upon said city for the payment of compensation.

"The court further finds that after the plaintiff was injured as aforesaid that the defendant paid him his full wages from the date of his injury up to the 15th of June, 1924, and thereafter paid him one-half of his wages until the 15th of October, 1925, and paid the plaintiff's hospital bill; in all, the defendant paid him the sum of sixteen hundred seventy-five dollars ($ 1,675).

"The court further finds that prior to the bringing of the aforesaid action the plaintiff consented to an arbitration of his claim, and the defendant refused to arbitrate.

"The court further finds that if plaintiff had been entitled to recover under the workmen's compensation act of Kansas, that he should recover for total incapacity amounting to sixty-two hundred twenty-five dollars ($ 6,225), less the sixteen hundred seventy-five dollars ($ 1,675) already paid him, or the sum of forty-five hundred fifty dollars ($ 4,550), but the court found that at the time plaintiff was injured he was not working under and subject to the terms of the workmen's compensation act of Kansas, and was not entitled to recover compensation for said injuries, and for that reason the plaintiff is denied a recovery."

The demurrer was sustained and judgment was rendered for the city.

The facts fairly raise the legal questions argued by the plaintiff, to wit: That the work in which the plaintiff was engaged was hazardous in its nature and was service for a department of the city engaged in business for trade and gain, which fairly brings the claim of plaintiff within the provisions of the compensation act. He contends that the work was directly and intimately connected with the water and light department so that it became a part of it. There is the further contention that the transactions between the plaintiff and the defendant city amounted to an agreement to be governed by the terms of the workmen's compensation act, the defendant having paid plaintiff for eighteen months under the terms of the act.

Proceeding to the consideration of the question involved in the case, we come first to the concession that the city through the water and light department is engaged in the exercise of its proprietary functions, in that it manufactures and furnishes to its citizens and customers light and power, and receives pay for the services rendered, and also furnishes heat, light and power to various manufacturing plants for compensation. It is therefore conducting employment for business, trade and gain within the meaning of the statute (R. S. 44-505), and is liable for compensation to injured employees if the plaintiff comes within the class protected by the statute. There can be no question, either, that the work being done by the plaintiff when injured was hazardous in its nature, and that he is entitled to the protection of the act if his...