Newman v. Bennett, 46846

• Decision Date: 14 July 1973
• Docket Number: No. 46846,46846
• Parties: Ethel NEWMAN, Appellee, v. A. W. BENNETT et al., Appellants.
• Court: Kansas Supreme Court

Page 497

512 P.2d 497

212 Kan. 562

Ethel NEWMAN, Appellee, v. A. W. BENNETT et al., Appellants.

No. 46846.

Supreme Court of Kansas.

July 14, 1973.

Syllabus by the Court

1. The two phrases, arising 'out of' and 'in the course of' the employment, as used in our workmen's compensation act (K.S.A.1972 Supp. 44-501), have separate and distinct meanings, they are conjunctive and each condition must exist before compensation is allowable. The phrase 'in the course of' employment relates to the time, place and circumstances under which the accident occurred, and means the injury happened while the workman was at work in his employer's service. The phrase 'out of' the employment points to the cause or origin of the accident and requires some causal connection between the accidental injury and the employment. An injury arises 'out of' employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. An injury arises 'out of' employment if it arises out of the nature, conditions, obligations and incidents of the employment.

2. A claim under the workmen's compensation act may be established by circumstantial evidence alone and it is not necessary such evidence should rise to a degree of certainty which will exclude every reasonable conclusion other than that found by the trial court.

3. Whether an accident arises out of and in the course of the workman's employment depends upon the facts peculiar to the particular case.

4. The workmen's compensation act does not require that the accident occur on or about the employer's premises.

5. If an employee is in the service of his employer at the time an accident occurs by reason of risk or hazard inherent in the use of a public road, it follows that the resultant injury or death arose out of the employment. The criterion is not that other persons are exposed to the same risk but that the employment renders the employee peculiarly subject to the danger.

6. The mere fact that an employee, while going to or returning from work, is carrying with him some of the paraphernalia of his work does not, in itself, convert the trip into a part of the employment; however, the presence of such equipment in the employee's vehicle at the time of the accident is a circumstance which may be considered with all other evidence in determining compensability.

7. In a situation of dual or multiple employment where injury occurs while the workman is performing a duty common to all employers, any award of compensation should be borne by all employers in proportion to the wages each has been paying.

8. In a workman's compensation proceeding the decedent was separately employed as a pumper for six separately owned oil and gas leases and was paid a monthly salary in varying amounts by each of the six lessees. He was killed at a rural intersection while driving a pickup truck used by him in his pumping work, as more particularly set forth in the opinion. Compensation was awarded his widow. On appeal by the employers and their insurance carriers it is held: (1) Award of compensation was not precluded by K.S.A. 1972 Supp. 44-508(k); (2) the finding that the accident arose out of and in the course of the decedent's employment with the six respondent employers is supported by substantial competent evidence; and (3) the trial court did not err in ordering apportionment of the award among the six employers according to the percentage of wages each paid to the decedent.

John G. Atherton, of Mellinger, Atherton & Hurt, Emporia, argued the cause and was on the brief for the appellant-holders of the Derbyshire, 53 State Street, Clopton, and Boles leases, and their insurance carrier, Western Casualty and Surety Co.

Harry E. Robbins, Jr., of Gamelson, Hiebsch, Robbins & Tinker, Wichita, argued the cause, and George Forbes, Tulsa, Okl., was with him on the brief for appellants Cloide Hensley, Continental Insurance Co. and Dewey F. Weaver.

Stanley R. Ausemus, Emporia, argued the cause and was on the brief for appellee.

HARMAN, Commissioner:

This is a workman's compensation proceeding brought by the widow of an oil filed pumper who was killed in an automobile intersection collision. The examiner, the director of workmen's compensation upon review, and the trial court upon appeal each awarded compensation.

The issues are whether the death arose out of and in the course of decedent's employment, and if so, which of decedent's six employers are liable, and to what extent.

On February 18, 1970, the date of the fatal accident, the decedent, David W. Newman, resided in Madison, Kansas. He was employed as a pumper upon six separately owned oil and gas leases. His duties included daily checking and servicing of the wells on the six leases, inspecting the pumps, tanks, salt water and lines on each, and keeping the wells in proper operation. He had full authority to do whatever needed to be done. When anything went wrong he was expected to repair it as soon as possible. On occasion it was necessary for him to go into Madison in order to procure repairs. He traveled in his own pickup truck upon which he carried tools, equipment and supplies belonging to his employers, which he used in his work.

The leases which decedent serviced were known as the Derbyshire, Clopton, Weaver, 53 State Street, Hensley and Boles. The first four were west and northwest of Madison, the Hensley lease was about three miles directly north of Madison while the Boles lease was about five miles east of that town. L. B. Campbell was the operating partner in two of the leases and the owner-operator in two others. The working interests were not identical in all of these leases. Dewey F. Weaver and Cloide Hensley each owned the lease bearing his name.

Decedent was hired separately for each lease. He first went to work as a pumper in 1958 on one of Mr. Campbell's leases at which time he lived in a house next to the lease. In subsequent years he was hired to pump the others, the last in about 1966. Meanwhile he had moved into Madison. He was paid a monthly salary by each employer in amounts varying from $50.00 to $275.00. He paid the operating expense of his pickup truck.

Mr. Campbell testified he knew decedent was pumping all six leases but he gave no instructions as to which of his leases were to be pumped first or what route decedent should take and he was not familiar with the route taken; the owner of the Weaver lease testified he knew decedent pumped the Campbell leases but knew nothing about the Hensley lease and was not familiar with the route taken by decedent; the owner of the Hensley lease testified he did not know how many wells decedent pumped, he prescribed no route and was not familiar with the route decedent traveled.

Decedent's widow, his son, a friend and his relief pumper testified as to the route he had taken many times to their knowledge. This testimony indicated decedent followed no set pattern but had discretion as to his route. Generally he first serviced the four wells west and northwest of Madison, visiting in turn the Clopton, Derbyshire, Weaver and the 53 State Street leases. Sometimes he returned to Madison for lunch and completed the remainder of his pumping tasks in the afternoon, but not always. Sometimes he would go first either to the Boles or the Hensley lease and service both of them before going to the other four leases. He had no fixed hours of employment.

On the day in question decedent was seen about 10:00 a. m. leaving the Weaver lease and proceeding north in the direction of the 53 State Street lease (about thirty miles travel is required to go from Madison to the Weaver lease). The accident occurred about thirty minutes later. Decedent was driving his truck from the west, going east on a county road across K 99 highway when it collided with a vehicle northbound on the highway. This intersection is about one and one half miles north of Madison and decedent was apparently on his way either to Madison or to the Hensley or Boles lease. Mr. Newman died two days later as a result of a skull fracture sustained in the collision.

The examiner, the director and the trial court each made extensive findings in awarding compensation to the widow, to be paid by each employer proportionately. Each emphasized the fact decedent was carrying tools and supplies in his pickup truck belonging to various employers, each found he was furthering the interests of all employers and each determined that dual employment, as distinguished from joint employment, existed at the time of the collision. (Initially each respondent denied the employer-employee relationship contending instead that decedent was an independent contractor but this contention has now been dropped.) The examiner found that the going-and-coming-to-work rule expressed in that which is now K.S.A. 1972 Supp. 44-508(k) was not applicable since decedent was following a route, his position being analogous to that of a traveling salesman injured while carrying the goods of more than one employer. Both the examiner and the director indicated that if the accident had occurred upon the premises of one lease then that particular lessee would have been solely responsible. The director found decedent was required by the nature of his work to travel by vehicle and therefore was subject to the hazards of the road while going from lease to lease. The trial court approved the findings made by the examiner and the director and further found:

'2. All respondents claim that the death of Mr. Newman did not arise out of and in the course of his employment. They...