Shrout v. Lewis
| Decision Date | 09 April 1938 |
| Docket Number | 33768. |
| Citation | 147 Kan. 592,77 P.2d 973 |
| Parties | SHROUT v. LEWIS. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
An employee, who was engaged in work of remodeling duplex apartment, was employed at "building work" within meaning of Compensation Act. Gen.St.1935, 44-508, subd. (f).
Where work is "building work," within meaning of the Compensation Act, the act applies regardless of the number of employees, if the facts otherwise bring the matter within the terms of the act. Gen.St. 1935, 44-507, 44-508, subd. (f).
To bring an employer within the Compensation Act, it is not enough that work at which laborer is employed is covered by the act, but it is also necessary that the work shall be a part of employer's trade or business. Gen.St.1935 44-503, 44-505.
The purpose of the Compensation Act is to place burden of compensation for accidents to employees on industry rather than on individual employer. Gen.St.1935, 44-501 et seq.
That one, who built, remodeled, and rented apartments and houses in city, owned farm and gave about half of his time to farm's supervision, would not relieve him from liability for compensation to employee injured while doing building work in city. Gen.St.1935, 44-501 et seq.
A person may engage in more than one trade or business, and hence, to bring an employer within provisions of Compensation Act, he need not be engaged exclusively in a hazardous employment. Gen.St.1935, 44-501 et seq.
One who purchased buildings for rental, repaired and remodeled them actively engaged in constructing other buildings, and spent about half his time in such operations, was engaged in trade or business of a "builder," within meaning of Compensation Act, so as to entitle employee, who was injured while doing remodeling work, to compensation. Gen.St.1935 44-501 et seq.
1. A person may engage in more than one trade or business, and in order to bring an employer within the provisions of the Workmen's Compensation Act of this state, Gen.St.1935 44-501 et seq., it is not necessary that he be engaged exclusively in a hazardous employment.
2. In order to render an employer liable for compensation to an injured workman, the injury must occur in a trade or business of the employer.
3. The record examined, and held, the extent to which the employer was engaged in the construction of buildings of his own for rental purposes, the remodeling thereof, and the substantial and habitual time and labor devoted to their repair, management, and operation, was of sufficient magnitude to bring the employer within the trade or business of a builder.
Appeal from District Court, Sedgwick County, Division No. 3; Grover Pierpont, Judge.
Proceeding under the Workmen's Compensation Act by J. J. Shrout, claimant, opposed by Shellman Lewis, employer. From a judgment granting an award to the claimant, the employer appeals.
Judgment affirmed.
C. A. Matson, I. H. Stearns, and E. P. Villepigue, all of Wichita, for appellant.
Earl C. Moore, of Wichita, for appellee.
This was an action under the Workmen's Compensation Act. Gen.St.1935, 44-501 et seq. The district court rendered judgment in favor of the claimant, and respondent appeals.
The question presented is whether the activity in which respondent was engage when claimant was injured was of such a nature and extent as to bring respondent within the trade or business of "building work," as that term is defined in the Workmen's Compensation Act.
Claimant suffered the loss of the thumb on his right hand. He also suffered a five percent. disability in the use of his right hand. Respondent had been a farmer. Seventeen years ago he moved to the city of Wichita. At the time of the trial he owned a farm in Oklahoma. About seven years ago he built an apartment house in the city of Wichita, consisting of eight apartments. The apartments were rented. It appears the contract for the construction of this apartment was let to a contractor. In March of 1936 he commenced the erection of a duplex which was completed in the month of June. In July of 1936, he sold his home, and in September of the same year, he started to build a new home. It was completed about January 1, 1937. Claimant started working for respondent on this home in September, 1936. He helped shingle the house, lay the floors, and assisted in the painting of the inside of the house. About the middle of January, 1937, respondent started the remodeling of basement apartments in the duplex. That work was completed about February 1, 1937. It was in the remodeling work of the duplex and on January 20, 1937, that claimant was injured. He had been employed directly by respondent to assist a carpenter who acted in the capacity of a foreman. Claimant was employed to do anything which might be necessary to assist the carpenter in getting the remodeling job completed. A motor-operated saw was in need of adjustment, and plaintiff was injured while assisting the carpenter in the work of adjusting the saw. The work of both the claimant and the carpenter appears to have been performed as day labor. Respondent owned other vacant lots and on April 15, 1937, obtained a permit from the city to build another duplex. This duplex was to consist of a family residence and was to be constructed at a cost of approximately $4,000.
That the remodeling work at which claimant was employed constituted "building work" is clear. G.S.1935, 44-508, subd. (f), provides: "'Building work' means any work in the erection, construction, extension, decoration, alteration, repair or demolition of any building or structural appurtenances." (Italics inserted.)
Where the work is "building work," the act applies regardless of the number of employees, G.S.1935, 44-507, if the facts otherwise bring the matter within the terms of the act. In order to bring an employer within the act it is not enough that the work at which the laborer is employed is covered by the act, but it is also necessary that the work shall be a part of his employer's trade or business. G.S. 1935, 44-503; 44-505; Setter v. Wilson, 140 Kan. 447, 449, 37 P.2d 50. In other words, it is the purpose of Workmen's Compensation Acts to place the burden of compensation for accidents to employees upon the industry rather than upon the individual employer.
What was respondent's trade or business? He insists he was a farmer. Claimant contends respondent's activity in the repair of his various buildings, the alteration and remodeling thereof, and the time and attention involved in the initial construction thereof, was sufficiently extensive to characterize respondent's trade or business as that of a builder. These properties, except his residence, were rental properties. As to the time respondent devoted to repairs, collection of rents after their completion, and whatever might be necessary for their management, his testimony varied. The early part of the record discloses the following:
Later he testified to the effect that the management, operation, and repairs of the city properties did not require one-half of his time, but the exact portion thereof was not definitely fixed. The record, however, discloses that about eight months of the year 1936 were occupied with the actual construction of buildings. The work in 1936 was done by a foreman and day laborers, all of whom were employed directly by respondent. While respondent did not specifically state he was the supervisor of the work, his testimony was subject to that interpretation.
Call it fairly be said respondent's trade or business was that of a farmer and that he was outside of the act, irrespective of his activity in the building trade? Or would it be more nearly in keeping with reason and fairness to say his activity in "building work" was sufficiently extensive to bring him within the act as one who was also engaged in the building trade? Does it follow from the mere fact he owned a farm and gave of his time to its supervision that he was...
To continue reading
Request your trial
-
Green v. Burch
...workmen injured therein and add the cost to the price of the product, thus extending the burden to the consumer.' In Shrout v. Lewis, 147 Kan. 592, at page 594, 77 P.2d 973, at page 974, this court held: '* * * In other words, it is the purpose of workmen's compensation acts to place the bu......
-
Thorp v. Victory Cab Co.
...repair shop? An employer may have various trades or businesses, some of which are within the act and others which are not. Shrout v. Lewis, 147 Kan. 592, 77 P.2d 973; Davis v. Julian, 152 Kan. 749, 107 P.2d G.S.1949, 44-508(b) expressly includes a 'machine or repair shop' under the definiti......
-
Giltner v. Stephens
... ... engaged exclusively in one of the hazardous employments ... covered by the workmen's compensation act. See Shrout ... v. Lewis, 147 Kan. 592, 77 P.2d 973, from which the ... following is quoted: ... '* ... * * In order to bring an employer within ... ...
-
Truhlicka v. Beech Aircraft Corp.
... ... We cited Bittle v. Shell Petroleum ... Corp., 147 Kan. 227, 75 P.2d 829; Setter v ... Wilson, 140 Kan. 447, 37 P.2d 50, and Shrout v ... Lewis, 147 Kan. 592, 77 P.2d 973. We then inquired as to ... what the business of the independent contractor--that of ... moving ... ...