Robinson v. Muller

• Decision Date: 06 April 1957
• Docket Number: No. 40468,40468
• Parties: Charles E. ROBINSON, Appellee, v. George MULLER, Appellant.
• Court: Kansas Supreme Court

Page 651

309 P.2d 651

181 Kan. 150

Charles E. ROBINSON, Appellee, v. George MULLER, Appellant.

No. 40468.

Supreme Court of Kansas.

April 6, 1957.

Syllabus by the Court

1. The existence of an employer-employee relationship, whether it be general or special, ultimately depends upon the existence of express or implied contractual relations between the parties.

2. A demurrer to a pleading is considered entirely upon the allegations contained therein and the proper exhibits attached thereto.

3. Petition examined in a common-law action to recover damages for personal injuries sustained by plaintiff which were alleged to have been caused by the negligence of defendant, and held, to state a cause of action, and the defendant's demurrer thereto was properly overruled.

Aubrey Neale, Coffeyville, argued the cause, and was on the briefs, for appellant.

Paul L. Wilbert and Morris Matuska, Pittsburg, argued the cause, and A. B. Keller and Randall D. Palmer, Pittsburg, were with them on the brief, for appellee.

WERTZ, Justice.

This was a common law action to recover damages for personal injuries sustained by plaintiff (appellee) which were alleged to have been caused by the negligence of defendant (appellant.)

Both the original and the amended petition alleged that the action was brought by plaintiff's employer and its insurance carrier in the name of the plaintiff for the benefit of the employer, its insurance carrier and the injured workman (plaintiff) as their interests may appear as provided by G.S.1955 Supp. 44-504.

The injuries in question occurred November 20, 1953. The original petition for damages was filed October 13, 1955. Defendant filed a motion asking that the petition be made more definite and certain in several particulars. Plaintiff did not appear at the hearing and the motion was sustained by the trial court. Plaintiff complied with the trial court's ruling by filing an amended petition on January 24, 1956, to which defendant filed still another motion to make more definite and certain, which was very properly overruled by the court. Inasmuch as the amended petition shows a restatement of the same cause of action between the same parties for the same injury due to the same identical, specific negligent acts of the defendant as did the original petition, we will narrate such pertinent allegations thereof as are necessary to determine the questions presented.

It is alleged plaintiff was injured while he was working for the Evans Electrical Construction Company in Coffeyville as a foreman of a line crew; that at the time his employer Evans was engaged in rebuilding and maintaining electrical equipment for the city of Coffeyville; that just prior to the time plaintiff was injured he had helped to secure and attach chains to a switch gear, which chains were then attached to a cable extending from the boom of a crane; that as a result of the injuries to plaintiff his employer and his insurance carrier paid certain medical expenses and compensation and were subrogated to the amount against defendant; that the trade or business of defendant at the time in question was the moving of a five-ton switch gear by the use of a crane from a flat-top railroad car to a flat-top trailer truck, which crane and truck were owned by defendant. Paragraph 6 of the amended petition reads:

'6. Plaintiff further states that on or about the 20th day of November, 1953, the defendant, through his said agent, servant and employee, William Boan, under oral contract with the City of Coffeyville, Kansas, was engaged in moving a heavy five ton switch gear from a flat top railroad car to a flat top trailer truck by means of a motor crane which was mounted on a truck which said crane and flat top trailer truck were both owned by said defendant George Muller; that the terms of said oral contract provided that the defendant was to move a five ton switch gear from a railroad car to a point at the electric plant in Coffeyville, Kansas, and the defendant was to and did bring the necessary heavy equipment, including a crane and a flat top trailer truck and the necessary men to operate said heavy equipment and move said switch gear; that the defendant through his said agent, servant, and employee, William Boan, was in charge of and directed the moving of said switch gear which was being done for the defendant; that plaintiff and his line crew had been instructed by the Evans Electrical Construction Company to do and only did the work of securing and attaching the chains to the switch gear; that the moving of the said switch gear from the flat top railroad car to the flat top trailer truck was a part of the work which the defendant had contracted to do and was doing through the defendant's agent, servant, and employee William Boan; that Charles E. Robinson and members of his crew as a part of their work for Evans Electrical Construction Company attached chains to the switch gear which were then attached to a cable extending from a boom of the said crane mounted on the defendant's truck, and the said employee of the...