Smith v. Bowersock, 19,371

CourtUnited States State Supreme Court of Kansas
Writing for the CourtJOHNSTON, C. J.
Citation95 Kan. 96,147 P. 1118
PartiesADA BURHANS SMITH, as Administratrix, etc., Appellee, v. J. D. BOWERSOCK, doing business as the Lawrence Paper Manufacturing Company, Appellant
Docket Number19,371
Decision Date10 April 1915

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 [147 P. 1119]

[95 Kan. 97] 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 [95 Kan. 98] 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 [95 Kan. 99] 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...

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9 practice notes
  • United States v. Butler, No. 5876.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 17 Abril 1931
    ...of the work performed is no longer a distinguishing mark of an employee. Shields v. Grace, 91 Or. 187, 179 P. 265, 270; Smith v. Bowersock, 95 Kan. 96, 147 P. 1118, 1121; Clark v. New England Tel. Co., 231 Mass. 546, 121 N. E. 497; Burnap v. U. S., 252 U. S. 518, 40 S. Ct. 374, 64 L. Ed. Fo......
  • Heniff v. Clausen, 35393.
    • United States
    • United States State Supreme Court of Kansas
    • 24 Enero 1942
    ...was applied when the time the appeal provided by our statute was six months instead of two months, as at present. See Smith v. Bowersock, 95 Kan. 96, 147 P. 1118. In support of the contention that G.S. 1939 Supp. 60-3314a gives him a right to be heard here, appellant cites Miller v. Whistle......
  • Abernathy v. Loftus, 19,369
    • United States
    • United States State Supreme Court of Kansas
    • 10 Abril 1915
    ...the obligations of a contract. We are of the opinion that the claim of John P. Douglass was a "debt unpaid" within the meaning of [95 Kan. 96] section 1204 of the General Statutes of 1889, and that the right of the plaintiff to proceed against the estate of Matthew Ryan, sr., as a stockhold......
  • Minneapolis Threshing MacHine Company v. Francisco, 22,151
    • United States
    • United States State Supreme Court of Kansas
    • 8 Mayo 1920
    ...this fact was thereby put in issue. (Kimble v. Bunny, 61 Kan. 665, 60 P. 746; Caple v. Drew, 70 Kan. 136, 78 P. 427; Smith v. Bowersock, 95 Kan. 96, 147 P. 1118.) It does not appear that this question was specifically called to the attention of the trial court. It seems that the trial was c......
  • Request a trial to view additional results
9 cases
  • United States v. Butler, No. 5876.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 17 Abril 1931
    ...of the work performed is no longer a distinguishing mark of an employee. Shields v. Grace, 91 Or. 187, 179 P. 265, 270; Smith v. Bowersock, 95 Kan. 96, 147 P. 1118, 1121; Clark v. New England Tel. Co., 231 Mass. 546, 121 N. E. 497; Burnap v. U. S., 252 U. S. 518, 40 S. Ct. 374, 64 L. Ed. Fo......
  • Heniff v. Clausen, 35393.
    • United States
    • United States State Supreme Court of Kansas
    • 24 Enero 1942
    ...was applied when the time the appeal provided by our statute was six months instead of two months, as at present. See Smith v. Bowersock, 95 Kan. 96, 147 P. 1118. In support of the contention that G.S. 1939 Supp. 60-3314a gives him a right to be heard here, appellant cites Miller v. Whistle......
  • Abernathy v. Loftus, 19,369
    • United States
    • United States State Supreme Court of Kansas
    • 10 Abril 1915
    ...the obligations of a contract. We are of the opinion that the claim of John P. Douglass was a "debt unpaid" within the meaning of [95 Kan. 96] section 1204 of the General Statutes of 1889, and that the right of the plaintiff to proceed against the estate of Matthew Ryan, sr., as a stockhold......
  • Minneapolis Threshing MacHine Company v. Francisco, 22,151
    • United States
    • United States State Supreme Court of Kansas
    • 8 Mayo 1920
    ...this fact was thereby put in issue. (Kimble v. Bunny, 61 Kan. 665, 60 P. 746; Caple v. Drew, 70 Kan. 136, 78 P. 427; Smith v. Bowersock, 95 Kan. 96, 147 P. 1118.) It does not appear that this question was specifically called to the attention of the trial court. It seems that the trial was c......
  • Request a trial to view additional results

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