Setter v. Wilson
| Decision Date | 03 November 1934 |
| Docket Number | 31971. |
| Citation | 140 Kan. 447,37 P.2d 50 |
| Parties | SETTER et al. v. WILSON. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Workmen's Compensation Act held applicable only to employment in "trade" or "business" of employer (Rev St. Supp. 1933, 44--501 et seq.).
Mere owning of building, maintaining it, and keeping it in repair so that it may produce income, is not sufficient to constitute "trade" or "business" within compensation act (Rev. St. Supp. 1933, 44--501 et seq.).
Owner of building having two stories and basement, first story of which was divided into two stores occupied by tenants, and second story being vacant held not engaged in "trade" or "business" of building within compensation act, so as to render owner liable for death of one engaged to make repairs, in absence of evidence that owner engaged in business of acquiring, improving, or holding realty as means of livelihood (Rev. St. Supp. 1933, 44--501 et seq.).
1. The Workmen's Compensation Act was intended to apply only to employment in the trade or business of the employer and, if the trade or business of the employer does not bring him within the terms of the act, he has no liability thereunder.
2. The mere owning of a house or building, maintaining it and keeping it in repair so that it may produce an income, is not sufficient to constitute a trade or business, but such transactions, at most, only amount to a trade or business within the meaning of the Workmen's Compensation Act when they are carried on to such an extent as to require a substantial and habitual devotion of time and labor to their management and operation.
Appeal from District Court, Allen County; Frank R. Forrest, Judge.
Proceeding under the Workmen's Compensation Act by Genevieve K Setter and others to recover compensation for the death of Boniface Setter, opposed by Mary Wilson. From a judgment of the district court on the award made by the compensation commissioner, the respondent appeals.
Judgment reversed and cause remanded, with instructions.
Kenneth H. Foust, Wallace H. Anderson, and G. M. Lamer, all of Iola, for appellant.
G. R. Gard and Stanley E. Toland, both of Iola, for apellees.
This appeal arises from a proceeding under the Workmen's Compensation Act (Rev. St. Supp. 1933, 44--501 et seq).
Mary Wilson, in Humboldt, Kan., owned a building in that city having two stories and a basement, the first story being divided into two stores which were occupied by tenants, and the second story being vacant at the time of the accident herein mentioned. Mrs. Wilson derived a part of her income from the rents. In August, 1931, she employed one Louis Eckhart to make some repairs on the building, paying him an hourly wage therefor. He was authorized to hire a helper and for the major portion of the work hired an assistant who had to leave the job before its completion. Eckhart then employed one Boniface Setter to assist him. On the day Setter started to work it became necessary to do some work in the basement which was dark. Mrs. Wilson furnished Eckhart an extension cord which she had used in her home so that it might be used from an electrical connection in an electric shop which occupied one of the rooms on the first floor. The wife of the tenant connected the extension cord to an electric light socket. Setter took the other end of the cord and went into the basement. Shortly thereafter it was discovered that he was lying dead on the floor of the basement and medical and other testimony was that the cord had a defective fixture at the end held by Setter and that he had been, electrocuted.
Thereafter, the widow and minor children of Setter brought an action in the district court to recover on a common-law liability, and later instituted proceedings under the Workmen's Compensation Act.
When the proceedings under the Workmen's Compensation Act came on for hearing before the commissioner, the respondent, Mrs Wilson, moved for a dismissal for reasons summarized as follows: That an action for relief growing out of the same facts was pending in the district court; that Setter was not an employee of respondent; that she did not have five employees in her employment and the commissioner had no jurisdiction; and that the respondent was not an employer within the purview of the Workmen's Compensation Act. The motion was denied, and, as a result of the hearing before the compensation commissioner, there was a finding in favor of the claimants and an award to them. The respondent appealed to the district court, where she renewed her objections with reference to an election of remedies by motions which were denied. In the district court the principal contention was whether the facts, about which there is...
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...Industrial Acc. Comm., 129 Cal.App. 447, 18 P.2d 979; Oliphant v. Hawkinson, 192 Iowa, 1259, 183 N.W. 805, 33 A.L.R. 1433; Setter v. Wilson, 140 Kan. 447, 37 P.2d 50; Kaplan v. Gaskill, 108 Neb. 455, 187 N.W. 943; Fedak v. Dzialdowski, 113 Pa.Super.Ct. 104, 172 A. 187; Quick v. E. B. Kintne......
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...shown to have been devoting a substantial amount of his time and labor to the work as a part of his trade or business. In Setter v. Wilson, 140 Kan. 447, 37 P.2d 50, we '* * * There can be no question that the work being done was 'building work' as defined by the statute (R.S.1933 Supp. 44-......
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