McDonnel v. Swift & Company

• Decision Date: 08 October 1927
• Docket Number: 27,595
• Court: Kansas Supreme Court
• Parties: FERN MCDONNEL, Appellee, v. SWIFT & COMPANY, Appellant

259 P. 695

124 Kan. 327

FERN MCDONNEL, Appellee, v. SWIFT & COMPANY, Appellant

No. 27,595

Supreme Court of Kansas

October 8, 1927

Decided July, 1927.

Appeal from Wyandotte district court, division No. 3; WILLIAM H MCCAMISH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

WORKMEN'S COMPENSATION ACT--Injury Arising Out of and in Course of Employment--Witnesses. In an action for compensation under the workmen's compensation act by the widow and sole dependent of a deceased workman the record is examined and it is held that the injury arose out of and in the course of the employment; and further held, in such an action that plaintiff is not, by virtue of R. S. 60-2804, or 60-2805, incompetent to testify to communications made to her by her husband.

Oliver Q. Claflin, of Kansas City, and Russell Field, of Kansas City, Mo., for the appellant.

Arthur J. Mellott, of Kansas City, Charles M. Bush and Robert M. Murray, both of Kansas City, Mo., for the appellee.

OPINION

HARVEY, J.:

This is an action by the widow and sole dependent of a deceased workman under the workmen's compensation act. Plaintiff recovered, and defendant has appealed. The principal question argued is whether the injury which caused the death of the workman arose out of and in the course of his employment.

The evidence tends to show that the workman, John Byron McDonnell, was employed by defendant as an assistant yardmaster at its meat-packing plant. His duties were to transmit instructions coming into the yardmaster's office from the various departments of the plant to the switching crews of the two railroads serving the industry as to the placing of railway equipment for the loading and unloading of cars, and to keep a check and record of freight cars coming into and leaving the plant. His work ordinarily was at an office or station at what was known as the "north switch shanty," and he went on duty each day at 10 o'clock a. m. He owned a Ford sedan, which he used for his own pleasure and convenience, and which he used in going to his work. Many of the employees of defendant used their automobiles in going to and from their work and were permitted by defendant to park the automobiles on defendant's premises, places for the parking of cars being designated or assigned by defendant in order that they might not be so parked as to interfere with the conduct of the business. McDonnell had been accustomed to park his car in a space often used by one Dolan, when Dolan's car was not occupying the space. On the day in question McDonnell drove his car to work, arriving at defendant's plant about 9:45. He found the space where he usually parked his car occupied by another car, not Dolan's. He reported this to his foreman and was told to find whose car it was and have it removed. He made some inquiry among other employees and was informed that the car belonged to a colored man named Webster, employed in defendant's ice-making department. He went to the third floor of the ice plant, where Webster was employed, and stopped to inquire for him of the first man he met. A Mr. Williams pointed out Webster to him, and he started to walk across the floor of the room to talk to Webster. He had taken only a few steps when he fell into a vat of hot water used by defendant to dip the cans of ice when they were pulled, in order to release the ice from the can. A cover was provided for this vat, but it was then out of repair and was not being used. McDonnell was so badly scalded that death resulted the next day from his injury.

In bringing her cause of action the plaintiff brought it in two counts--one stating a cause of action under the workmen's compensation act, and one at common law for wrongful death. At the close of the evidence the court held that the plaintiff had not made out a case under the cause of action at common law, and declined to submit that to the jury. Plaintiff, by cross appeal, has complained of this ruling. It was not erroneous. The injury was by accident. If it arose out of and in the course of the employment, plaintiff's sole remedy was under the compensation act. ( Shade v. Cement Co., 92 Kan. 146, 139 P. 1193; McRoberts v. Zinc Co., 93 Kan. 364, 144 P. 247; Frere v. Railway Co., 94 Kan. 57, 145 P. 864; Smith v. Cement Co., 94 Kan. 501, 146 P. 1026; Echord v. Rush, 122 Kan. 260, 251 P. 1112.) If it did not occur by reason of the employment the relation of master and servant did not exist, and there would be no liability at common law. Plaintiff argues that McDonnell's position was that of an invitee; that having been directed by his foreman to find who had parked the car at the place in question and have him remove it was equivalent to an invitation to go to the place where Webster was, hence he was in effect invited to go to that place. But any direction given by his foreman and relied upon by him cannot be said to be independent of the relation of master and servant.

Appellant contends that to introduce evidence as to both causes of action was to confuse the issues before the jury and necessarily to result in an unfair trial. When a plaintiff is in doubt as to what the evidence will be as to the theory on which he may recover it is proper for him to plead two or more causes of action, the recovery to be upon the one sustained by the evidence. (McRoberts v. Zinc Co., supra; Hutton v. Oil Co., 108 Kan. 197, 194 P. 925.) The jury was called to...