Smith v. Bowersock

• Decision Date: 10 April 1915
• Docket Number: 19,371
• Citation: 95 Kan. 96,147 P. 1118
• Parties: ADA BURHANS SMITH, as Administratrix, etc., Appellee, v. J. D. BOWERSOCK, doing business as the Lawrence Paper Manufacturing Company, Appellant
• Court: Kansas Supreme Court

147 P. 1118

95 Kan. 96

ADA BURHANS SMITH, as Administratrix, etc., Appellee, v. J. D. BOWERSOCK, doing business as the Lawrence Paper Manufacturing Company, Appellant

No. 19,371

Supreme Court of Kansas

April 10, 1915

Decided. January, 1915.

Appeal from Douglas district court; CHARLES A. SMART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. APPEAL--From Order Overruling Motion for New Trial--Appeal within Six Months. An appeal may be taken from an order overruling a motion for a new trial within six months after the order is made although more than that time has intervened between the entry of judgment upon the return of the verdict and the taking of the appeal, and all rulings and questions that were open for consideration on the motion for a new trial are open for review on the appeal.

2. PLEADINGS--Appointment of Administratrix Not Put in Issue by Answer. The appointment of the plaintiff as administratrix alleged in a petition, is not put in issue by an answer denying that the plaintiff has capacity to sue and a verification alleging that the facts stated in the answer are true.

3. FACTORY ACT--Personal Injuries--To What Class of Employees Factory Act Applies--Safeguarding Machinery. All persons employed or laboring in a manufacturing establishment are entitled to the protection provided for in the factory act (Laws 1903, ch. 356, Gen. Stat. 1909, §§ 4676-4683) without regard to the nature of their employment, their rank or grade, and it is the duty of the owner or operator to furnish safeguards for dangerous machinery where it is practicable to do so, and if he fails in his duty in this respect he will become liable for the injury and death of any employee, including a superintendent of the factory, which results from the omission of this duty, and this although the superintendent was authorized to direct and control the details of the business under the supervision of the owner and operator and his managers and although the dangerous character of the machinery and the practicability of safeguarding it was open and obvious; and it is further held, under the evidence in this case, that there is nothing in the relations of the parties or the circumstances of the case to absolve the defendant from liability for the death of the superintendent which resulted from his failure to provide safeguards conceded to have been practicable and necessary to the safety of employees.

William B. Brownell, of Lawrence, McCabe Moore, of Kansas City, and C. F. Hutchings, of Kansas City, Mo., for the appellant.

S. D. Bishop, and J. H. Mitchell, both of Lawrence, for the appellee.

OPINION

JOHNSTON, C. J.

Ada Burhans Smith brought this action against J. D. Bowersock, doing business as The Lawrence Paper Manufacturing Company, to recover damages under the factory act (Laws 1903, ch. 356, Gen. Stat. 1909, §§ 4676-4683) for negligently and carelessly causing the death of Sumner I. Smith, her husband. In her petition plaintiff alleged, substantially, that she was the duly appointed and acting administratrix of the estate of Sumner I. Smith, deceased, having been appointed by an Indiana court, which had probate jurisdiction; that defendant was the owner and operator of The Lawrence Paper Manufacturing Company, at Lawrence; that much machinery, including squeeze rolls, dry rolls and dryer felt rolls, was used in the business of the company; that on November 28, 1911, Sumner I. Smith was employed by defendant as superintendent of his manufacturing establishment, and while in the discharge of such duty was ordered by one P. A. Dinsmoor, his superior and assistant manager of the establishment, to adjust the squeeze rolls; and that in attempting to comply with Dinsmoor's order Smith fell and was caught between the dryer and dryer felt rolls, and fatally crushed and killed. Plaintiff further alleged that it was practicable to have provided the squeeze rolls, dry rolls and dryer felt rolls with proper and safe guards or screens; that the lack of such guards or screens directly contributed to and was the proximate cause of Smith's death; that at the time of Smith's death he was in perfect health and earning $ 150 a month; that she was the widow and sole heir at law of Sumner I. Smith; and that because of her husband's death, which resulted from the failure of defendant to properly guard and screen the machinery in the establishment, she was damaged in the sum of $ 10,000. Defendant answered denying plaintiff's capacity to sue, and alleged that on November 28, 1911, Smith was the superintendent of defendant's manufacturing establishment, and had complete direction of it, including the safeguarding of all machinery in it, and that if Smith was injured and died on November 28, 1911, from the injuries it was because of his own carelessness and negligence in putting his hand into the machinery and attempting to adjust certain squeeze rolls. Defendant also denied the practicability of guarding and screening the rolls and machinery, and that the lack of such guards was the proximate or directly contributing cause of the injury to Smith, and alleged, further, that if the machinery was not properly guarded or screened, Smith, as superintendent, was responsible therefor and assumed the risk thereof. This answer of defendant was verified. On the trial of the case plaintiff offered evidence tending to show her capacity to sue, and also that at the time of smith's death he was acting under the orders of his superior, Dinsmoor; that it was practicable to guard and screen the rolls, in fact that a board was put in position to guard the rolls which caught Smith shortly after his injury and death; and that Smith was a kind and affectionate husband, having at the time of his death, an expectancy of life of thirty-two and one-half years and an earning capacity of $ 1800 a year. Defendant's demurrer to plaintiff's evidence was overruled, and he then undertook to prove that it was impracticable to guard and screen the machinery; that it was the duty of Smith to properly guard and protect the machinery for the prevention of accidents to the workmen; and that a general order for the safeguarding of the machinery had been made by defendant at one time, but had been deferred on the advice of Smith. On June 18, 1913, the jury returned a verdict in favor of plaintiff, fixing the amount of her recovery at $ 10,000, and on the same day judgment was entered thereon. Defendant's motion for a new trial, filed on June 21, 1913, was overruled on January 17, 1914, and this appeal was taken on March 17, 1914.

Plaintiff has moved for the dismissal of this appeal on the ground that it was not taken within six months after the rendition of the judgment. Under the recent enactment an appeal must be perfected "within six months from the date of the rendition of the judgment or order appealed from." (Laws 1913, ch. 241, § 1.) The code authorizes an appeal from a final order as well as one which grants or refuses a new trial. (Civ. Code, § 565.) The order appealed from in this case is the one overruling the motion for a new trial, and it has been often held that an appeal may be taken from that order within the time limited although more than that time has intervened between the rendition of the judgment and the taking of the appeal. On such appeals all rulings and questions fairly involved in the motion for a new trial are open for review here. ( Osborne, Ex'r, v. Young, 28 Kan. 769; Thompson v. Wheeler & Wilson Mfg. Co., 29 Kan. 476; Bates v. Lyman, 35 Kan. 634, 12 P. 33; Crawford v. K. C., Ft. S. & G. Rld. Co., 45 Kan. 474, 25 P. 865; Surety Co. v. Ashmore, 74 Kan. 325, 86 P. 453; Benefit Association v. Wood, 78 Kan. 812, 98 P. 219.) The questions discussed appear to have been fairly involved in the motion for a new trial, which was refused, and the appeal having been taken within six months from the time the order denying the motion was made the questions are open for review on this appeal.

It is contended that there was error in the ruling of the court refusing to instruct the jury to return a verdict in favor of the defendant. The contention is based mainly on the claim that the plaintiff was appointed as the administratrix of the estate of Sumner I. Smith by a court of Indiana notwithstanding that the evidence showed that he was a resident of Kansas when he died. In her petition plaintiff alleged that she was duly appointed as administratrix, and the only statement in defendant's answer respecting the appointment was a denial that she "has capacity to sue in said action and demand the relief sought." The verification of the answer was "that the facts therein stated are true." The statement that she had no capacity to sue is a mere conclusion. The facts relating to capacity to sue or showing incapacity to bring and maintain the action were not alleged, and hence no facts were stated and the verification was not such as to put the appointment of the...