Romerez v. Swift & Company

• Decision Date: 08 May 1920
• Docket Number: 22,684
• Citation: 189 P. 923,106 Kan. 844
• Court: Kansas Supreme Court
• Parties: CRESENCIA ROMEREZ, Appellee, v. SWIFT & COMPANY, Appellant

189 P. 923

106 Kan. 844

CRESENCIA ROMEREZ, Appellee, v. SWIFT & COMPANY, Appellant

No. 22,684

Supreme Court of Kansas

May 8, 1920

Decided January, 1920.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

COMPENSATION ACT--Death of Workman--Injury Did Not Arise Out of the Employment. The deceased, with another Mexican, was engaged in trucking livers in the defendant's packing house. An altercation occurred between him and a colored ox-tail trucker resulting in a fight which was reported to the foreman. Shortly after this the colored man and another workman were engaged in trucking ox tails, when the deceased and his partner coming along within ten or twelve feet of them were abused and called names by the colored workmen. The two Mexicans left their truck and approached the colored men and engaged in an altercation with them, during which one of the colored men stabbed and killed the deceased. Held, that the injury did not arise out of the employment, and, therefore, the defendant is not liable.

Russell Field, of Kansas City, Mo., for the appellant.

A. J. Herrod, and H. S. Roberts, both of Kansas City, for the appellee.

OPINION

WEST, J.:

Cresencia Romerez brought this action to recover for the death of her son, Juan Romerez, at the defendant's packing house, and recovered. The defendant appeals. Juan Romerez and Jose Lopez were meat truckers, as was also a fellow worker, Basil Sims. The duty of Juan and Jose was to truck beef livers and hang them on racks. A quarrel arose between Sims, a trucker of ox tails, and Juan, resulting in an injury to the latter and some loss of blood, which caused the foreman to send him to the doctor's office. Jose did not wish to continue the work of trucking alone and was told to wait until his partner, Juan, returned. Sims got behind with his work, and another employee named Hall was sent to assist him. When Juan and Jose passed these two it is claimed that Hall made insulting remarks which caused a quarrel between him and Juan. Hall ran to another part of the building, secured a knife, returned and stabbed Juan, who died almost instantly. The claim of the defendant was and is that the death was not an injury by accident arising out of and in the course of his employment.

It is argued that in entering upon a quarrel with Hall, and stopping at the rack where Hall and Sims were working, Romerez departed from his employment and was not engaged in the duty he was employed to perform, but, on the contrary, was interfering with the employer's business. One witness testified:

"When we came in Sims was up on this keg hanging tails and Hall was standing on one side. We were passing Sims and Hall to take our truck about ten or twelve feet beyond them, when Hall started calling us names. We stopped there because be began saying things. Juan and Sims began to argue and Hall went after the knife."

Another witness testified:

"The Mexicans left the truck in the alley and come back to the negroes. The negroes started hollering. Told the Mexicans to 'get out.' I was about 30 feet away. The Mexicans and the negroes were jumping back and forth. I saw the negro hit the Mexican and he turned around and fell."

Another workman:

"Sims was hanging tails; Mexican say to Sims, 'I say I get you; you got me.' Mexican stopped pushing truck and take knife and jump for Sims. Sims was on a tierce. Hollis Hall say 'get out of the way Mexican--get out of the way Mexican,' and Mexican jumps for Sims and Sims holler and was scared and this Mexican jumping all the time for Sims, and Hall holler 'get out of the way, Mexicano; I hit you.' . . . I was within five feet of them when the Mexican was stabbed. . . . He (the Mexican) called Sims a , and jumped for Sims with a knife."

Quite an attempt was made to show that Hall was sent down as a peacemaker, but objections were sustained and the attempt failed. Offers were made to prove that the foreman instructed Hall to go down and work with Sims, and if there Was any trouble between the Mexicans and Sims to stop it; also, to prove that Hall had stated that the foreman sent him down to work with Sims, and if there was any trouble down there he was instructed to stop it. Lopez testified that the foreman told Sims to go back to work, and Sims said he was afraid of the Mexicans; that the foreman told him not to worry, he would get him another partner "so they won't jump on you." Sims himself testified that after...