Otta v. Johnson, 45753
| Citation | 204 Kan. 366,461 P.2d 758 |
| Decision Date | 06 December 1969 |
| Docket Number | No. 45753,45753 |
| Parties | Jo Ann Janice OTTA, Widow; and Larry Dean, Gary Lynn, Debra Jo Ann and Danny Ray Otta, Minor Dependents of Lionel Dean Otta, Deceased, Appellants, v. Leslie JOHNSON, d/b/a Johnson Truck Lines, Appellee, and State Automobile and Casualty Under-writers, Appellee. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court
1. An appeal from a decision of the workmen's compensation director is to the district court of the county in which the accident occurred.
2. With exceptions not here material, it is incumbent upon a claimant in a workmen's compensation proceeding to show that five workmen were employed at the time of the alleged accident.
3. In a proceeding under the workmen's compensation act brought by a widow and the minor children for the death of a workman allegedly resulting from accidental injury arising out of and in the course of the employment, the record is examined, and it is held, the trial court did not err in finding the respondent did not have five workmen employed at the time of the accident, and its judgment denying compensation is affirmed.
Kenneth Clark, Hill City, argued the cause, and Hans R. Hansen, Hill City, was with him on the brief for appellants.
Gary Cooper, Colby, argued the cause, and Keith Willoughby, Colby, was with him on the brief for appellee Leslie Johnson.
H. Lee Turner, Great Bend, argued the cause, and J. Eugene Balloun, Max E. Eberhart, and Thomas C. Kelley, Great Bend, were with him on the brief for appellee insurance carrier.
HARMAN, Commissioner.
This is a workmen's compensation case arising out of the death of Lionel D. Otta. Claimants, his widow and minor children, have appealed to this court from the trial court's order denying compensation.
During a rainstorm on June 9, 1965, Otta and one Walter R. Buehler were killed on the Kansas Turnpike near Wichita when the truck they were driving in a southwesterly direction struck a bridge abutment. The truck was owned by respondent Leslie L. Johnson of Colby, Kansas, and was en route between Scandia, Kansas, and either Altus or Alva, Oklahoma. The accident occurred approximately two and one half miles northeast of the South Wichita turnpike interchange.
Following the death claimants filed their application for hearing and claim for workmen's compensation, alleging Otta was an employee of respondent Johnson and that the State Automobile and Casualty Underwriters, a corporation, was Johnson's insurance carrier for workmen's compensation.
From the inception of the litigation the respondent Johnson and his alleged insurance carrier have taken contrary positions on most issues. Generally, Johnson has agreed with claimants' contentions and the insurance company has opposed them. The latter has also denied it was in fact a carrier of workmen's compensation insurance on Johnson's behalf.
After the stipulations of the parties at the hearing before the workmen's compensation examiner, the issues remaining included the following: Whether or not the relationship of employer and workman existed at the time of decedent's accidental injury; whether decedent's death arose out of and in the course of his employment; whether the parties were governed by the Kansas workmen's compensation law, and whether State Automobile and Casualty Underwriters had workmen's compensation insurance coverage on Johnson's business.
After extended hearings the examiner made findings of fact favorable to claimants on the disputed issues and awarded them compensation accordingly. No review of the award by the workmen's compensation director was requested and it was automatically approved by the director. The award was then appealed by State Automobile to the district court of Sedgwick county. That court made extensive findings of fact adverse to claimants and denied compensation. Included in these findings was one that there was no contract of insurance coverage between Johnson and the insurance company on June 9, 1965. Claimants have now appealed to this court.
The only matter urged in the brief filed in this court by appellee Johnson is that the trial court erred in its finding on insurance coverage; however, he took no cross-appeal upon this ruling and it is not reviewable at his behest. Claimants do raise the issue in their appeal.
Appellants present a procedural point which should be dealt with first. They assert the district court of Sedgwick county was the wrong forum for the appeal, arguing it should have gone to and been decided by the district court of Thomas county because Otta and Johnson resided in that county and the alleged contract of employment was made there. The point is not well taken. In russell v. Lamoreaux Homes, Inc., 198 Kan. 447, 424 P.2d 561, the applicable statute, then K.S.A. 44-556, was construed and it was held an appeal from the director's decision is to the district court of the county in which the accident occurred. This accident occurred in Sedgwick county.
The trial court found Johnson was not operating a 'motor transportation line' as contemplated by K.S.A. 44-505; that prior to June 9, 1965, he had not filed an election to come under the workmen's compensation act and had not qualified as a self-insurer; that certain named individuals (not including Otta or his companion Buehler) were not employees of Johnson on June 9, 1965; that on June 9, 1965, Johnson did not have five workmen employed by him in the trucking business, and that at the time of Otta's accidental injury and death he had substantially deviated from the normal route of travel for no reason connected with his employment. The trial court made numerous findings on the question of insurance coverage for workmen's compensation and concluded none existed on June 9, 1965. The court also concluded Otta's accidental injury and death did not arise out of and in the course of his employment, and that Otta and Johnson were not covered by the provisions of the workmen's compensation act.
Several propositions are embraced in the trial court's conclusion the...
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...incident to the proceedings continues." The legal proceedings referred to were previous litigation reported in Otta v. Johnson, 204 Kan. 366, 461 P.2d 758 (1969), a workers compensation action against the employer and his alleged insurance carrier by the widow and children of Lionel Otta, w......
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