Sheahan v. Kansas Power & Light Co., 38290
| Decision Date | 08 March 1952 |
| Docket Number | No. 38290,38290 |
| Citation | 241 P.2d 515,172 Kan. 399 |
| Parties | SHEAHAN v. KANSAS POWER & LIGHT CO. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
An action brought by a widow to recover for the death of her husband, who was working as a plumber at the same plant and who was killed in the same explosion in which the plaintiff in Lessley v. Kansas Power & Light Co., 171 Kan. 197, 231 P.2d 239, was injured, is controlled by what was decided in that appeal.
Clayton E. Kline, M. F. Cosgrove, Balfour S. Jeffrey, Robert E. Russell, Willard N. VanSlyck, Jr., William B. McElhenny, Robert Stone, James A. McClure, Robert L. Webb, Ralph W. Oman and Robert A. McClure, all of Topeka, were on the briefs for appellant.
Roy N. McCue and Howard F. McCue, both of Topeka, were on the briefs for appellee.
This is an action by a widow to recover for the death of her husband. The appeal is from an order of the trial court overruling motions of defendant to compel plaintiff to make her petition more definite and from another order striking certain allegations from defendant's answer.
The action arises out of the same explosion out of which arose Lessley v. Kansas Power & Light Co., 171 Kan. 197, 231 P.2d 239. Plaintiff's husband was a workman at the Tecumseh plant of defendant employed by Sheahan & Degan, Inc., plumbers, which company had a contract with the defendant for the installation of plumbing in connection with the construction of a new addition to the Tecumseh plant of the defendant.
The petition alleged that on December 9, 1948, at about 3:20 p. m. while Sheahan was working at his trade at the plant in connection with the construction of a new building and the installation of new equipment therein, the entire plant being under control of defendant, explosions occurred in the plant exclusively under the control of defendant due to the accumulation of gas thereunder and Sheahan was killed. The petition next alleged that the explosions were the result of the negligence of defendant. The prayer was for damages in the amount of $15,000.
To this petition defendant filed a motion to strike and to compel plaintiff to make more definite and certain. This was overruled.
On April 17, 1950, the defendant filed its answer. It was substantially identical with that filed by the same defendant in Lessley v. Kansas Power & Light Co., supra. To this answer the plaintiff filed a motion to strike and to make definite and certain. This motion was sustained in the main and certain allegations were ordered stricken. We should note here, the same motion was directed at the answer of the defendant in the Lessley case. The only difference is, in this case the trial court, before which the action was pending, sustained the motion to strike and in the Lessley action another trial court overruled it. The plaintiff in the Lessley case appealed and the appeal reached us before this one did.
Actually in each case the plaintiff attempted to allege a cause of action under the common law, pursuant to G.S.1949, 44-503, same being a section of the workmen's compensation act. The defendant in its answer in this case set out its corporate powers, the nature of its busines; that the construction of the new plant was a part of its trade and business; that it was necessary to keep the plant in operation while the construction work was going on, and generally that under all the surrounding facts and circumstances Sheahan was under the workmen's compensation law; that the accident causing his death arose out of and in the course of this employment and hence no cause of action under the common law accrued. The contract between the Missouri Valley Construction Company and Sheahan and Degan, pursuant to which plaintiff's husband was working, was also pleaded and a copy attached. These allegations the trial court ordered stricken from the answer. In the Lessley case the answer contained similar or identical allegations. A similar motion was made in that cases and overruled.
It will be seen the defendant in each case raised and pleaded the defense that the remedy of a workman injured in that particular explosion was to make a claim under the workmen's compensation act rather than by a common law action.
After the motion of plaintiff in the Lessley case to strike was overruled, the plaintiff filed a reply. Thereupon the defendant filed a motion for judgment on the pleadings. This motion was sustained. In the appeal we examined the contract between Lessley's employer, Dougherty Company, Inc., and the general contractor, pursuant to which Lessley was employed and working at this plant, considered all the surrounding facts and circumstances and held that Lessley was under the compensation act and did not have a common law right of action.
We did not have the benefit of a brief on the part of plaintiff when this appeal was submitted. The defendant appellant after stating the...
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