Robertson v. The Board of County Commissioners of The County of Labette

• Decision Date: 08 January 1927
• Docket Number: 27,256
• Citation: 252 P. 196,122 Kan. 486
• Parties: BEN ROBERTSON, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF LABETTE, and THE FEDERAL SURETY COMPANY, Appellees
• Court: Kansas Supreme Court

252 P. 196

122 Kan. 486

BEN ROBERTSON, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF LABETTE, and THE FEDERAL SURETY COMPANY, Appellees

No. 27,256

Supreme Court of Kansas

January 8, 1927

Decided January, 1927.

Appeal from Labette district court; WILLIAM D. ATKINSON, judge.

Judgment affirmed and reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WORKMEN'S COMPENSATION ACT -- Employers Within Act -- County Constructing Road. A county, in constructing a hard-surface road, is not engaged in trade or business within the meaning of the workmen's compensation law.

2. LIABILITY INSURANCE--Provision for Benefit of Insured--Effect of Legal Incapacity of Contracting Party. An insurance policy, issued to a county for the benefit of its employees in road work, is examined and held to contain a contract between the insurance company and such employees, obligating the company to such employee (or his dependents) to pay compensation for injuries sustained in such employment compensable under the workmen's compensation law, and the amount of such payments to be measured by such law, and this obligation does not depend upon the legal capacity of the board of county commissioners to apply for such policy and to pay the premium thereon.

Carl V Rice, of Parsons, for the appellant.

Payne H. Ratner, county attorney, and Charles H. Cory, assistant county attorney, for appellee The Board of County Commissioners; L. E. Goodrich, of Parsons, John T. Harding, David A. Murphy and R. C. Tucker, all of Kansas City, Mo., for appellee The Federal Surety Company.

OPINION

HARVEY, J.:

In this action Ben Robertson, a workman employed by the county in the construction of a hard-surface road, sued the county and the insurance company for injuries sustained by him in such work, measured by the workmen's compensation act. Defendants separately demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action. The demurrers were sustained. Plaintiff has appealed.

The petition alleged, in substance, among other things, that the board of county commissioners of Labette county proposed the construction of about eight miles of hard-surface road and applied for federal aid, which was granted. Bids for the work were received, considered and rejected, and the county proceeded to construct the road, employing labor and purchasing equipment for that purpose, and under the federal statute one-half of the cost thereof, including the premium on the insurance policy in question, was paid by federal aid. The county made application and received a policy of insurance from the defendant, Federal Surety Company, providing for payments to the employees of the county on such work for injuries sustained by such employees under the schedule of payments as fixed by the workmen's compensation act of the state of Kansas. While employed by the county on such work, and operating a stone crusher, plaintiff received an injury arising out of and in the course of his employment. The injury was reported to the county and to the surety company and claim for compensation made. The defendant surety company investigated the claim, admitted its liability thereon, and that plaintiff was entitled to $ 15 per week, and paid the same for four weeks, the total payment being $ 60, when further payments were refused.

It is contended in this appeal that the county is not liable to employees such as plaintiff in this case under the workmen's compensation act. This contention must be sustained. The workmen's compensation act applies "only to employment in the course of the employer's trade or business." (R. S. 44-505.) A county doing road work is not engaged in "trade or business" within the meaning of the statute. (Gray v. Sedgwick County, 101 Kan. 195, 165 P. 867.) This action is not founded in tort, but if it were the county would be liable only to the extent it is made so by statute (Silver v. Clay County, 76 Kan. 228, 91 P. 55; Woolis v. Montgomery County, 116 Kan. 96, 226 P. 244; Bohm v. Racette, 118 Kan. 670, 236 P. 811, and cases there cited), and there is no statute making the county liable for injuries such as are claimed in this case. There was no error in sustaining the demurrer on behalf of the county.

The demurrer on behalf of the insurance company is not so easily determined. It requires first an examination of the policy. Such examination discloses that the obligations of the policy are two-fold. A number of its provisions relate to indemnifying the employer, which is the county in this case, against loss by reason of liability imposed upon it by law for damages for injuries sustained by its employees. Since there is no such liability imposed by law upon the employer in this case, we need give no further consideration to these provisions of the policy. A number of the provisions of the policy relate to the liability of the insurance company direct to the employee. It will be necessary to quote some of these provisions, which are as follows (italics and explanatory remarks in parentheses are ours):

"Federal Surety Company . . . does hereby agree with this employer," (the board of county commissioners of Labette county) . . . "as respects personal injuries sustained by employees, . . . as follows:

"One (a) to pay promptly to any person entitled thereto," (persons entitled thereto are employees of the county whose remuneration was included in computing the premium on the policy) "under the workmen's compensation law and in the manner therein provided, the entire amount of any sum due, and all installments thereof as they become due,

"(1) To such person because of the obligation for any such injury imposed upon or accepted by this employer under such of certain statutes, as may be applicable thereto, cited and described in an indorsement attached to this policy, each of which statutes is herein referred to as the workmen's compensation law, and

"(2) For the benefit of such person the proper cost of whatever medical, surgical, nurse, or hospital services, medical or surgical apparatus or appliances and medicines, . . . are required by the provisions of such workmen's compensation law.

"It is agreed that all of the provisions of each workmen's compensation law covered hereby shall be and remain a part of this contract as fully and completely as if written herein, so far as they apply to compensation or other benefits for any personal injury or death covered by this policy, while this policy shall remain in force. . . .

"This agreement is subject to the following conditions: . . .

"D. The obligations of paragraph one (a) foregoing are hereby declared to be the direct obligations and promises of the company to any injured employee covered hereby, or in the event of his death, to his dependents; and to each such employee or such dependent the company is hereby made directly and primarily liable under said obligations and promises. This contract is made for the benefit of such employees or such dependents and is enforceable against the company, by any such employee or such dependents in his name or on his behalf, at any time and in any manner permitted by law, whether claims or proceedings are brought against the company alone or jointly with this employer. . . . The obligations and promises of the company as set forth in this paragraph shall not be affected by the failure of this employer to do or refrain from doing any act required by the policy; nor by any default of this employer after the accident in the payment of premiums or in the giving of any notice required by the policy or otherwise; nor by the death, insolvency, bankruptcy, legal incapacity or inability of this employer, nor by any proceeding against him as a result of which the conduct of this employer's business may be and continue to be in charge of any executor, administrator, receiver, trustee, assignee, or other person."

The policy contains provisions (five and six) which appear to extend its provision to a class of...