Quillen v. The Wichita Gas Company

• Decision Date: 06 April 1929
• Docket Number: 28,374
• Citation: 275 P. 1075,128 Kan. 9
• Parties: J. I. QUILLEN, Appellee, v. THE WICHITA GAS COMPANY, Appellant
• Court: Kansas Supreme Court

275 P. 1075

128 Kan. 9

J. I. QUILLEN, Appellee, v. THE WICHITA GAS COMPANY, Appellant

No. 28,374

Supreme Court of Kansas

April 6, 1929

Decided January, 1929.

Appeal from Sedgwick district court, division No. 2; THORNTON W SARGENT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

WORKMEN'S COMPENSATION ACT--Partial Temporary Disability. In an action under the workmen's compensation act (R. S. 44-501 et seq.) the record is examined, and it is held that there was evidence to justify a finding of partial disability temporary in character.

H. A. Russell, of Topeka, and Robert D. Garver, of Kansas City, Mo., for the appellant.

C. A. Matson, I. H. Stearns, E. P. Villepigue and Jesse D. Wall, all of Wichita, for the appellee.

OPINION

HARVEY, J.:

This is an action for workmen's compensation under R. S. 44-501 et seq. The only contested question in the case is the extent of plaintiff's injury. He sustained an accident in which his hand was cut in such a way as to injure the thumb. The jury found a total disability for a period of four weeks and three days, and as to that there is no serious controversy. Plaintiff contended there was a permanent partial disability, while defendant contended that there was no partial disability compensable under the statute. On the evidence the jury found that there was a partial disability, but that the same was temporary in character and would exist for four years. Compensation was allowed accordingly. The defendant has appealed.

Appellant contends that the evidence did not justify any award for the reason that it disclosed that plaintiff, notwithstanding the condition of his hand and thumb, was able to do his work as well, and did in fact receive the same pay, as before the injury, and it is argued that under the compensation act an injury which is so slight as not to interfere with earning capacity is not compensable, citing Zwaduk v. Morris & Co., 109 Kan. 186, 197 P. 868, and allied cases. But it has been held that the amount a workman received as wages is not necessarily an accurate test of his earning capacity. (Hood v. Transit Co., 106 Kan. 76, 186 P. 977.) There was evidence in this case tending to show that after the injury plaintiff was able to perform labor of the character which he had previously performed only with the aid of specially designed tools, or by pain and inconvenience, or the aid of his fellow workmen. Under such circumstances it has been repeatedly held that the fact that the workman received as much wages for his labor after his injury as...