Simpson v. Kansas City

• Citation: 137 Kan. 915,22 P.2d 955
• Decision Date: 10 June 1933
• Docket Number: 31204.
• Parties: SIMPSON v. KANSAS CITY.
• Court: United States State Supreme Court of Kansas

22 P.2d 955

137 Kan. 915

SIMPSON v. KANSAS CITY.

No. 31204.

Supreme Court of Kansas

June 10, 1933

Syllabus by the Court.

Municipalities in exercise of their normal functions and not engaged in trade or business do not operate under Compensation Act (Rev St. Supp. 1931, 44--501 et seq.).

City workman held not within Compensation Act where injured while repairing pavement, since city in repairing street was not engaged in "trade or business" (Rev. St. Supp 1931, 44--501 et seq.).

Municipalities in the exercise of their normal functions, and not engaged in trade or business, do not operate under the Workmen's Compensation Act.

Appeal from District Court, Wyandotte County, Division No. 1; E. L Fischer, Judge.

Judgment reversed, with directions.

Alton H. Skinner, City Atty., and George H. West, John C. O'Brien, James K. Cubbison, and William H. Towers, Asst. City Attys., all of Kansas City, for appellant.

James M. Meek and A. M. Etchen, both of Kansas City, for appellee.

HARVEY Justice.

This is a workmen's compensation case. Claimant was employed by the city in its street department. While breaking cement in repairing a pavement a small particle of cement struck him in the eye, resulting in impaired vision. He made claim for compensation. The commissioner of compensation heard the evidence in order to make a record which could be reviewed, but held the parties were not subject to the provisions of the Workmen's Compensation Act, and denied compensation. Claimant appealed to the district court. The court reviewed the record, held the parties were operating under the Workmen's Compensation Act, and computed and allowed compensation under the evidence. The respondent has appealed.

The principal question raised by the appeal is whether the city, in performing its governmental functions, is operating under the Workmen's Compensation Act without having filed with the compensation commissioner its election to do so. Prior to the rewriting of our Compensation Act in 1927 (chapter 232, Laws 1927, R. S. 1931 Supp. 44--501 et seq.), it had become the settled law of this state that counties and municipalities of the state, in performing their normal functions, were not engaged in "trade or business" for profit, and were not within the provisions of the Workmen's Compensation Act. Udey v. City of Winfield, 97 Kan. 279, 155 P. 43; Griswold v. City of Wichita, 99 Kan. 502, 162 P. 276, L.R.A. 1918F, 187, Ann.Cas. 1917D, 31; Gray v. Board of Com'rs of Sedgwick County, 101 Kan. 195, 196, 165 P. 867, L.R.A. 1918F, 182; Roberts v. City of Ottawa, 101 Kan. 228, 229, 165 P. 869; Redfern v. City of Anthony, 102 Kan. 484, 485, 170 P. 800; Robertson v. Labette County Com'rs, 122 Kan. 486, 252 P. 196.

But if the municipality, exercising its proprietary capacity through the water and light department, produced water or electric energy which it sold to consumers, its employees in that department were within the act, for with respect to such functions the city was engaged in trade or business for a financial return or profit. McCormick v. Kansas City, 127 Kan. 255, 273 P. 471. In Early v. Burt, 134 Kan. 445, 453, 7 P.2d 95, it was pointed out that these decisions were under the statute before it was changed in 1927, but it was not there held that the new act makes any change with respect to municipalities operating under the act.

It is contended by appellee here that the section of the former act (R. S. 44--505) was so amended by the later act (section 5, ch. 232, Laws 1927, R. S. 1931 Supp. 44--505) as to bring cities and other subdivisions of the state within the provisions of the act. The pertinent provisions of the earlier act read as follows: "That this act shall apply only to employment in the course of the employer's trade or business on, in or about a railway, factory, mine or quarry, electric, building or engineering work, laundry, natural gas plant, county and municipal work, and all employments wherein a process requiring the use of any dangerous explosive or inflammable materials is carried on, which is conducted for the purpose of business, trade or gain; each of which employments are hereby determined to be especially dangerous, in which from the nature, conditions or means of prosecution of the work therein, extraordinary risk to the life and limb of the workmen engaged therein are inherent, necessary or substantially unavoidable, and as to each of which employment it is deemed necessary to establish a new system of compensation for injuries to workmen."

The later act reads: "That this act shall apply only to employment in the course of the employer's trade or business in the following hazardous employments: railway, motor transportation line, factory, mine or quarry, electric, building or engineering work, laundry, natural gas plant, county and municipal work, and all employments wherein a process requiring the use of any dangerous explosive or inflammable materials is carried on, each of which employments are hereby determined to be especially dangerous, in which from the nature, conditions or means of prosecution of the work therein, extraordinary risk to the life and limb of the workmen engaged therein are inherent, necessary, or substantially unavoidable, and as to each of which employments it is deemed necessary to establish a new system of compensation for injuries to workmen."

Under the earlier act much litigation arose over the words "on, in or about." See Bevard v Skidmore-Patterson Coal Co., 101 Kan. 207, 165 P. 657; Hicks v. Swift & Co., 101 Kan. 760, 168 P. 905; Alvarodo v. Flower Bros. Rock Crusher Co., 109 Kan. 192, 197 P. 1091; Tierney v. Southwestern Bell Telephone Co., 114 Kan. 706, 708, 220 P. 190; Hoops...