Moore v. Peet Bros. Mfg. Co.

• Court: Kansas Supreme Court
• Writing for the Court: MASON, J.
• Citation: Moore v. Peet Bros. Mfg. Co., 99 Kan. 443, 162 P. 295 (Kan. 1917)
• Decision Date: 06 January 1917
• Docket Number: 20501
• Parties: MOORE v. PEET BROS. MFG. CO.

162 P. 295

99 Kan. 443

MOORE v. PEET BROS. MFG. CO.

No. 20501

Supreme Court of Kansas

January 6, 1917

Syllabus by the Court.

A lump sum judgment under the Workmen’s Compensation Act (Laws 1911, c. 218, as amended by Laws 1913, c. 216), based on a finding of permanent total disability, cannot be set aside as being against equity and conscience, nor is a case established for the granting of a new trial upon the ground of newly discovered evidence, upon a showing that the injured workman is conducting a cleaning, pressing, and tailoring business out of which he is making $12 to $15 a week, where it is not shown that any of the physical labor in connection therewith is done by himself.

Additional Syllabus by Editorial Staff.

The phrase “total incapacity for work,” as used in Workmen’s Compensation Act, does not imply an absolute disability to perform any kind of labor, but a person disqualified from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment is ordinarily regarded as “totally incapacitated.”

Appeal from District Court, Wyandotte County.

Action by Warren L. Moore, under the Workmen’s Compensation Act, against the Peet Bros. Manufacturing Company. From the denial of a motion for the enjoining and modification of a judgment for plaintiff, defendant appeals. Affirmed.

Sherman & Landon, of Kansas City, Mo., and McAnany & Alden, of Kansas City, Kan., for appellant.

Douglas & Worline, of Kansas City, Kan., for appellee.

OPINION

MASON, J.

On October 27, 1914, Warren L. Moore recovered a lump sum judgment for $2,710, under the Workmen’s Compensation Act, against the Peet Bros. Manufacturing Company, on account of an injury received while in its employ, which was found to have resulted in permanent total disability, compensation being allowed for the full period of eight years--the statutory maximum. On October 27, 1915, the defendant filed a motion asking that the enforcement of the judgment be enjoined, and that it be modified, on the ground that the period of the plaintiff’s total incapacity had ceased, and that he was then earning from $12 to $15 a week. The motion was denied, and the defendant appeals.

The vacation of the judgment is asked on the ground that it should not be enforced, because it is shown to be against equity and conscience by facts which could not have been developed before its rendition. A similar application was denied in Roberts v. Packing Co., 98 Kan. 750, 160 P. 221, for the specific reason that it sought the same relief as a statutory petition for a new trial on the ground of newly discovered evidence, and could not be entertained because not made within a year from the date of the judgment. Here the motion was filed on the corresponding day of the following year--just within the limitation period. Com’rs of Smith Co. v. Labore, 37 Kan. 480, 15 P. 577.

The affidavit by which the motion was supported sets out that:

"The plaintiff herein, Warren L. Moore, is now conducting a cleaning, pressing, and tailoring business in the basement of the building wherein he lives, ... and that the said Warren L. Moore is making from twelve ($12.00) dollars to fifteen ($15.00) dollars a week out of said business."

The question is presented whether the fact that an injured workman is able to, and does, conduct a business of his own, which returns him an income, is inconsistent with a finding that his injury resulted in his permanent "total incapacity for work" within the meaning of the compensation act.

The phrase quoted does not imply an absolute disability to perform any kind of labor. It requires a practical and reasonable interpretation, as is illustrated by the familiar rule that inability to obtain work, caused by an injury, is classed as total incapacity. Gorrell v. Battelle, 93 Kan. 370, 144 P. 244; Knowles’ The Law Relating to Workmen’s Compensation (3d Ed.) p. 218; note, 5 N.C. C. A. 735. One who is disqualified from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment is ordinarily regarded as totally incapacitated. In case of partial incapacity the statute provides for compensation approximating half the difference between the workman’s former average earnings and what he is able to earn after the accident "in some suitable employment or business." The words quoted are also found in the English statute, and are said to have been inserted therein "in order to settle the question whether a workman, who has partially recovered from his injury, is bound to accept any work that may be offered to him, however unsuitable or distasteful, on pain of having to submit to a reduction in his weekly compensation." Knowles’ The Law Relating to Workmen’s Compensation (3d Ed.) p. 228. The Scotch Court of Session has held that the profits of a business owned by the injured workman are not to be classed as earnings, the Lord President saying:

"It seems to me that the man’s wage-earning capacity is a perfectly different thing from the question of what profit he makes in a business; and the learned sheriff, upon the statement of the case, has considered nothing else. He has taken the business which this man ran. He has taken the net drawings, then he has deducted the expenses; he has allowed for interest upon capital at a fixed sum, and has deducted wages which he paid to other persons, and then the remainder he has taken as the wage-earning capacity. That seems to me a perfectly different thing. The amount remaining may be his wage-earning capacity, or it may not. But you cannot get at the man’s wage-earning capacity by finding out what he is making in business. I agree that the question of what he is earning, or able to earn, is not to be so rigidly interpreted as it is when you are to look at nothing except the wages which he gets...