Rush v. Empire Oil & Refining Co.

• Decision Date: 07 July 1934
• Docket Number: 31853.
• Citation: 34 P.2d 542,140 Kan. 198
• Parties: RUSH v. EMPIRE OIL & REFINING CO.
• Court: Kansas Supreme Court

34 P.2d 542

140 Kan. 198

RUSH v. EMPIRE OIL & REFINING CO.

No. 31853.

Supreme Court of Kansas

July 7, 1934

Syllabus by the Court.

Compensation claimant, to recover compensation, must establish that injury arose out of and in course of employment (Rev. St. Supp 1933, 44--501).

Term "in course of employment," as used in rule that employee cannot recover compensation unless injury arose in course of employment, simply means while employment was in progress and points to time, place, and circumstances under which accident took place (Rev. St. Supp. 1933, 44--501).

Term "out of," as used in rule that employee cannot recover compensation unless injury arose out of employment points to cause or origin of accident and requires that some causal connection exist between accidental injury and employment (Rev. St. Supp. 1933, 44--501).

Where workman gathering trash from alleys of town maintained by employer led team to side of garage to protect himself and team from rain and wind, injury sustained when wind blew garage onto workman arose "in course of," but not "out of," employment (Rev. St. Supp. 1933 44--501).

1. In order for a workman to recover compensation under the Workmen's Compensation Law it is essential, among other things, that he show that the accident which resulted in the injury for which he claimed compensation arose "out of" the employment. These words require a showing of some causal connection between the employment and the accident.

2. Under the facts stated in the opinion, it is held, that the alleged accidental injury to the workman was not shown to have arisen out of the employment.

Appeal from District Court, Butler County; George J. Benson, Judge.

Proceedings under the Workmen's Compensation Act by Charles Ernest Rush, claimant, opposed by the Empire Oil & Refining Company employer and self-insurer. From a judgment, on appeal from the Compensation Commissioner, allowing compensation, the employer appeals.

Judgment reversed, with directions.

James W. Finley, Hayes McCoy, and Chas. C. Julien, all of Bartlesville, Okl., for appellant.

K. M. Geddes and Stanley Taylor, both of El Dorado, for appellee.

HARVEY Justice.

This is a workmen's compensation case in which claimant was allowed compensation for total permanent disability. Respondent has appealed. The legal questions presented are: (1) Whether the accident for which compensation was allowed arose out of the employment; and (2) if it did, the extent of plaintiff's injury and the amount of compensation due him.

The facts are not seriously controverted and may be stated as follows: Respondent produces oil from leases and operates under the Workmen's Compensation Act as a self-insurer. It had an extensive business in Butler county, and for the more advantageous conduct of its business laid out, built, and maintained the town of Oil Hill. In addition to offices, warehouses, shops, yards, and barns of respondent, the town consisted of several hundred dwelling houses owned by respondent, nearly all of which were occupied by its employees and their families. Streets and alleys had been laid out. On April 4, 1928, claimant was working for respondent, taking care of its horse barns and also in the department that looked after the cleaning of the alleys and the sanitation of the town. He was provided with a team and wagon, and with these he followed a regular route laid out for him, going through the alleys and about town gathering waste paper and trash. At about 1:30 in the afternoon on that date he was working in an alley with a team and wagon when a rain and wind storm came up from the south. For protection to himself and team from the rain and wind he led the team to the north side of a two-stall garage constructed of heavy timbers (2x12's) located next to the alley. While standing there holding the team, the wind blew the garage over onto or against him. When he became conscious he was lying about a block north of where he was holding the team and the garage had rolled about a half block farther north from where he lay. The femur of his right leg was broken about a third of the way down, the radius of his right arm was fractured near the wrist, and he suffered other severe bruises. The wind and storm in question blew down about fifty oil derricks in the adjoining oil fields, and a portion of the porch roof of a warehouse in Oil Hill, but did no other damage.

Claimant was taken to a hospital. The bruises appear to have healed without serious lasting effect, also the fractured radius; but the injury to the right leg caused a great deal of trouble. The femur was broken in such a way that it was difficult to set. The wound became infected, osteomyelitis developed, and several operations were performed, the last one in September, 1930. There was drainage from the leg bone for about three years, during which time claimant was in the hospital, or out on crutches. At the time of the hearing of this claim by the commissioner, in July, 1932, the wound had healed and he had no further need of medical attention. He had perhaps 25 percent. use of the leg. He could walk without a cane. There was a slight outward bowing of the femur, the right leg was about three inches shorter than the other, which gave a tilting of the pelvis to the right, and a slight curvature of the spine. The muscles of the right leg, and to a lesser degree of the right side of the back, were weak and shrunken. There was some pain in the hip joint, back, right side, and groin.

Respondent paid for all hospital, surgical, and medical attention, in the aggregate $3,662.44; also, without any claim for compensation having been made, and without any agreement with reference thereto, respondent after the first week began paying compensation at the rate of $15.22 per week, and continued such payment for two hundred weeks, which amounted to full payment under the Compensation Law for the loss of the leg. Rev. St. 1933 Supp. 44--510 (3), (c) (14). Respondent then ceased paying, and within ninety days thereafter, and on April 22, 1932, claimant made written claim of respondent for compensation for total permanent disability, which claim, as previously stated, was allowed.

Taking up the legal questions presented: Did the accident which caused plaintiff's injury arise "out of" his employment? Even when other conditions exist, authorizing the award of compensation, it is essential that the accident which causes injury to the employee arise "out of" and "in the course of" his employment. Rev. St 1933 Supp. 44--501. These terms are used in the conjunctive. Both conditions must exist. Bevard v. Coal Co., 101 Kan. 207, 208, 165 P. 657; Haas v....