Thoman v. Farmers & Bankers Life Ins. Co.

• Decision Date: 07 November 1942
• Docket Number: 35539.
• Citation: 130 P.2d 551,155 Kan. 806
• Parties: THOMAN v. FARMERS & BANKERS LIFE INS. CO.
• Court: Kansas Supreme Court

130 P.2d 551

155 Kan. 806

THOMAN v. FARMERS & BANKERS LIFE INS. CO.

No. 35539.

Supreme Court of Kansas

November 7, 1942

Syllabus by the Court.

In absence of express statutory language to the contrary, a statute is to be construed as a whole, and one section cannot be excised from its context and a right or liability predicated thereon, while remainder of statute is ignored.

All statutes in "pari materia" are to be construed together as if they formed parts of same statute, and were enacted at same time.

Statutes relating to same substance, although enacted at different times, are in "pari materia" and should be construed together.

An action against an employer for injuries sustained by woman employee for impairment of health due to working in an air-conditioned office was not maintainable under a single isolated section of the Industrial Welfare Act which created an official state board and clothed it with authority to prescribe standard conditions of labor for women in industries to which employers must conform. Gen.St.1935 44-639 to 44-650, 44-640.

The statute which created an official board and vested it with authority to prescribe standard conditions of labor for women in industry, and the amendatory statute thereafter enacted were in "pari materia", and would be construed and given the force of a single enactment. Gen.St. 1935, 44-639 to 44-650.

Where an employer violates expressly prescribed standards of a statute, common law defenses of contributory negligence and assumption of risk are not available in an employee's action for injuries.

An action could not be maintained by a woman employee against employer for injuries based on an alleged breach of a single section of Industrial Welfare Act, until state board created by the Act prescribed standard conditions of labor for women in industry. Gen.St.1935, 44-639 et seq., 44-601a.

An action against an employer for impairment of health of female employee who was compelled to work in an air conditioned office, if any, was one at common law for damages, against which employer was entitled to plead the defenses of contributory negligence and assumption of risk.

In action against employer for impairment of health of female employee who was compelled to work in an air conditioned office, where employee disclaimed common law right of action and relied exclusively on a single section of the Industrial Welfare Act as a basis of her claim for damages, and it was determined that the action was not maintainable on such section, employer was entitled to judgment. Gen.St.1935 44-639 et seq., 44-640.

1. In an action against an employer for damages for injuries sustained by its employe by compelling her to work for several months in an air-conditioned office room which was too cold, which conditions of labor were detrimental to her health and welfare, it is held that the action was not maintainable under a single isolated section of the industrial welfare act which created an official state board and clothed it with authority to prescribe standard conditions of labor for women in industry to which employers must conform.

2. The statute of 1915 which created an official board and vested it with authority to prescribe standard conditions of labor for women in industry, and the amendatory statute thereto of 1921, G.S. 1935, 44-639 to 44-650, are in pari materia, and must be read, construed, and given the force of a single enactment, following Wren & Clawson v. Com'rs of Nemaha County, 24 Kan. 301, 305, and Wenger v Taylor, 39 Kan. 754, 18 P. 911, Syl. 1.

3. Until the state board created by the industrial welfare act, G.S.1935, 44-639 et seq., and 44-601a, prescribes standard conditions of labor for women in industry, to which employers of women in office buildings must conform, no action for damages based on an alleged breach of a single section of that statute is maintainable.

4. In an action for damages against an employer for injuries sustained by an employe who was compelled to work from June, 1939, until February, 1940, in an airconditioned office room which was too cold and where the air current blew on her, it is held that her action, if any, was one at common law for damages, against which the defendant employer was entitled to plead the defenses of contributory negligence and assumption of risk; and held also that since plaintiff disclaimed such a right of action and relied exclusively on a single section of the industrial welfare act as a basis of her claim for damages, the defendant was entitled to judgment.

Appeal from District Court, Sedgwick County, Division No. 2; Robert L. NeSmith, Judge.

Action by Myrtle Thoman against the Farmers & Bankers Life Insurance Company for permanent injuries alleged to have been sustained by plaintiff while she was employed as a clerk and stenographer in defendant's air conditioned office building. From a judgment for plaintiff, the defendant appeals.

Reversed with directions.

W. D. Jochems, of Wichita (J. Wirth Sargent, Emmet A. Blaes, and Roetzel Jochems, all of Wichita, on the brief), for appellant.

Glenn Porter, Getto McDonald, Dwight S. Wallace, William Tinker, and Arthur W. Skaer, all of Wichita, for appellee.

DAWSON Chief Justice.

Plaintiff brought this action for damages for permanent injuries alleged to have been sustained while she was employed as a clerk and stenographer in defendant's air-conditioned office building in Wichita.

Plaintiff alleged that for several months during 1939 and 1940 she was compelled to work in an office room where the temperature was so low that she had to wear woolen clothes and jackets; that she repeatedly complained about the cold to defendant's officials and those in charge of the office where she worked; that her desk was so placed that she was subjected to a draft of cold air which eventually caused her to be afflicted with arthritis which affected her arms, hands, limbs, feet, neck, shoulders and back, and necessitated her going to a hospital where she was confined for 25 days and incurred large expenses for hospital and medical care; that her arthritic condition was permanent, and that she is and will continue to be permanently disabled from carrying on her occupation or any gainful employment.

Defendant filed a motion to require her petition to be made more definite and certain by stating how low the air-conditioning made the temperatures where she worked, and the dates when such alleged low temperatures were maintained, and by stating the names of the officials and persons to whom she complained about the cold, and that she be required to state how cold was the air which she alleged was thrown "past the plaintiff and past the back of the plaintiff" and what there was about the installation and operation of the air-conditioning which was detrimental to her health and welfare as she alleged.

This motion was overruled and defendant filed an answer which contained a general denial, and alleged that plaintiff had an operation for the removal of a kidney stone and other ailments which caused her to be off duty on many occasions.

Defendant also specifically denied that the conditions under which plaintiff worked were detrimental to her health and welfare; that the air-conditioning of defendant's office building was the best system available and had been installed at a cost of $22,000 shortly before the times mentioned in plaintiff's petition, and that defendant had incurred that expense for the particular purpose of adding to the comfort of its employes and to make the working conditions ideal for them. Defendant also alleged that its place of business was and is a safe and comfortable place in which to work. Other paragraphs of defendant's answer continued thus:

"5. Defendant further denies that the plaintiff was compelled to work under conditions which were detrimental to her health and alleges that the health of the plaintiff was such that it was detrimental for her to work, and that notwithstanding such condition of plaintiff's health the plaintiff without regard for her health continued working and thereby assumed the risk of working in a place which plaintiff alleges was detrimental to her health.

"6. Defendant alleges that the risk, if any, of being injured as complained of by plaintiff in her petition was a risk necessarily incident to her employment with defendant; that plaintiff knew the conditions existing in the office in which she worked, or by the exercise of reasonable care could have known of the conditions which she alleges were present, and to which she was exposed as complained of in her petition (but which alleged conditions plaintiff does not admit), but notwithstanding these facts plaintiff continued to work in said office and thereby assumed the risk, if any, incident to her employment with defendant."

Plaintiff filed a motion to strike out various allegations of the answer. This motion was overruled in part, but sustained as to paragraphs 5 and 6 quoted above. Defendant filed an amended answer to conform to the trial court's ruling, and the issues thus made were tried before a jury which failed to agree and were discharged.

Defendant brings the record here for review of what ever errors may be presently appealable, particularly the order striking out paragraphs 5 and 6 of defendant's answer; overruling defendant's demurrer to the evidence, and overruling its motion for a directed verdict.

To justify the trial court's order striking out paragraphs 5 and 6 of defendant's answer, appellee cites the case of Caspar v. Lewin, 82 Kan. 604, 109 P. 657, 49 L.R.A.,N.S., 526, where it was held that the common law defenses of contributory negligence and assumption of risk are not available in an action between employe and employer...