Shade v. The Ash Grove Lime and Portland Cement Company
| Decision Date | 11 April 1914 |
| Docket Number | 18,793 |
| Citation | 139 P. 1193,92 Kan. 146 |
| Parties | FRANK D. SHADE, Appellant, v. THE ASH GROVE LIME AND PORTLAND CEMENT COMPANY, Appellee |
| Court | Kansas Supreme Court |
Decided January, 1914.
Appeal from Neosho district court; JAMES W. FINLEY, judge.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
1. "WORKMEN'S COMPENSATION ACT"--Both Appellant and Appellee within its Purview. The original workmen's compensation act (Laws 1911, ch. 218, Laws 1913, ch. 216) leaves an employee in industries within its purview no other remedy than the one provided by the act, where neither the employer nor employee has filed a statement of his election not to accept thereunder.
2. SAME--Petition Drawn under Factory Act--May be Amended to Claim under "Workmen's Compensation Act." Where a petition stating a cause of action under the factory act charges negligence, but discloses a situation in which a recovery can only be allowed under the workmen's compensation acts, the district court having jurisdiction of the parties and subject matter should not dismiss the action but should retain it for the remedy to which the plaintiff may prove his right.
T. F. Morrison, of Chanute, for the appellant.
H. P. Farrelly, and T. R. Evans, both of Chanute, for the appellee.
This is an appeal from an order dismissing an action to recover damages for personal injuries on the ground that the plaintiff's right to recover was governed solely by the workmen's compensation act. (Laws 1911, ch. 218, Laws 1913, ch. 216.)
The petition contained averments sufficient for a cause of action under the factory act (Gen. Stat. 1909, §§ 4676-4683) under which it was obviously drawn, but it also contained charges of negligence sufficient to state a cause of action independent of the act.
The motion to dismiss was urged on the ground that both the employer and the employee at the time of the injury were within the provisions of the workmen's compensation act, because neither had filed a written declaration of an election not to come within its provisions or not to accept thereunder.
The original act of 1911 declared in section 1 that "save as herein provided, no such employer shall be liable for any injury for which compensation is recoverable under this act." In section 2 it was provided that the employee might elect to rely upon a right of action for negligence or the right of compensation under the act. The provisions of section 1 of the first act are not changed, but section 2 of that act is repealed by chapter 216 of the Laws of 1913. This leaves no provision in the later statute to which the clause above quoted can apply, and when both parties are under the compensation act the remedy prescribed by it is exclusive.
The first act applied to employers in the industries within its purview who elected to come under its provisions and to accept thereunder, but by the later statute which took effect March 12, 1913, it is declared that the employer shall be deemed entitled to come...
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Sayles v. Foley
...See, also, State ex rel. Yaple v. Creamer, 85 Ohio St. 349, 404, 97 N. E. 602, 39 L. R. A. (N. S.) 694; Shade v. Ash Grove, etc., Cement Co., 92 Kan. 146, 139 Pac. 1193; State v. Evans, 130 Wis. 381, 110 N. W. 241. The exclusion of the employés receiving more than $1,800 a year is not unrea......
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...v. Natl. Zinc Co., 93 Kan. 364, 365, 144 Pac. 247, 248; Echord v. Rush, 124 Kan. 521, 523, 261 Pac. 820, 124; Shade v. Cement Co., 92 Kan. 146, 147, 139 Pac. 1193, 144 Pac. 249; Jennings v. Kan. P. & L. Co., 152 Kan. 469, 471, 105 Pac. (2d) 882; Phoenix Indemnity Co. v. Barton Torpedo Co., ......
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...substitute remedy for the abrogation of the employees' common-law right to sue an employer for negligence. Shade v. Ash Grove Lime & Portland Cement Co., 92 Kan. 146, 139 Pac. 1193, aff'd on rehearing 93 Kan. 257, 144 Pac. 249 Now, the legislature has made the Act's notice of claim statute ......
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CHAPTER 6
...within its scope. Bitnoff v. Sw. Rendering, 223 Kan. 334, 336, 573 P.2d 1033 (1978); Shade v. Ash Grove Lime & Portland Cement Co., 92 Kan. 146, 148, 139 Pac. 1193, aff’d 93 Kan. 257 (1914). The logical extension of this rule is that where a remedy exists under the statute, the injured work......