Thorp v. Victory Cab Co.

• Decision Date: 26 January 1952
• Docket Number: No. 38590,38590
• Citation: 240 P.2d 128,172 Kan. 384
• Parties: THORP v. VICTORY CAB CO.
• Court: Kansas Supreme Court

Page 128

240 P.2d 128

172 Kan. 384

THORP v. VICTORY CAB CO.

No. 38590.

Supreme Court of Kansas.

Jan. 26, 1952.

Syllabus by the Court

1. An ordinary taxicab business without fixed routes or time schedules is not covered by the words, 'motor transportation line' as used in the Workmen's Compensation Act. Following Tuggle v. Parker, 159 Kan. 572, 156 P.2d 533.

2. A trade or business expressly denominated hazardous in G.S.1949, 44-505, is automatically subject to provisions of the Workmen's Compensation Act irrespective of the wishes of the employer provided it has the requisite number of employees and for the period of time required in G.S.1949, 44-507.

3. Neither a nonhazardous trade or business nor a hazardous trade or business, with fewer than five workmen, is within the purview of the workmen's compensation act unless there is an affirmative election to bring it within the act. Such election is voluntary, not compulsory, and is never presumed.

4. A person may be engaged in various trades or businesses, some of which are within and others outside the purview of the compensation act.

5. An employer may be engaged in a trade or business which embraces both hazardous and nonhazardous departments.

6. A taxicab company which employs workmen in a repair shop wherein it repairs its taxicabs other vehicles belonging to the business and cars of persons to whom the company has damage liability conducts a factory and a hazardous employment within the provisions of G.S.1949, 44-505 and 44-508(b).

7. A taxicab company which maintains a repair shop such as that described in the preceding paragraph is not relieved of liability for workmen's compensation merely by reason of the fact the hazardous department of the business, the repair shop, is not operated as an entirely separate and distinct business entity for gain 'therein'.

8. A workman who suffers an accidental injury arising out of and in the course of the hazardous employment in a repair shop operated by a taxicab company is entitled to recover compensation provided five or more workmen have been continuously employed in the work of such hazardous department for more than one month at the time of the accident. G.S.1949, 44-507.

9. Neither clerical employees of the taxicab company nor mere administrative officers of the latter, who do not have supervision or control over work in the repair shop, may be counted in determining whether five persons are employed in the hazardous work.

10. It is not the function of this court to make original findings of fact essential to a decision in a workmen's compensation case. Its jurisdiction and power is limited to a review of the record for the purpose of determining whether such findings when made by the district court are supported by substantial competent evidence.

11. The record in a workmen's compensation case examined and the case remanded to the district court with directions to make a finding, on the record before it, on an undetermined essential issue of fact designated in the opinion.

Joseph Cohen, of Kansas City (Charles S. Schnider and Joseph P. Jenkins, both of Kansas City, on the briefs), for appellant.

James K. Cubbison, of Kansas City (Blake A. Williamson and Lee Vaughan, both of Kansas City, on the briefs), for appellee.

WEDELL, Justice.

This was a workmen's compensation case. The workman recovered an award and the employer appeals.

The material facts are quite simple. In substance, they are:

The employer was the Victory Cab Company; it operated a fleet of taxicabs in the city of Kansas City and its surrounding territory; in connection with its taxicab business it operated a shop for the repair and servicing of its taxicabs, the company's trucks, the cars of its officers and cars of others to whom the company had liability for damages; it did no repair work on any other cars; the shop was equiped with power machinery and other tools and devices suitable for the purpose mentioned; it operated a spray gun for painting cars; the mechanics in the repair shop also went out to service taxicabs in case they ran out of gasoline or needed repairs while on trips; the work of the mechanics, of which claimant was one, was to keep the taxicabs in operating condition; the taxicab company had no fixed routes or fixed termini over which it operated; it merely transported passengers from and to places designated by them; claimant was injured during the early morning of December 21, 1950, while on a trip to deliver gasoline to a taxicab that needed servicing; after stopping his truck on the opposite side of the street from which the cab was located he was struck in the street by an appoaching motor car and severely injured.

Exclusive of facts pertaining to claimant's injuries, not involved on appeal, the district court found: 'The court finds the parties are governed by the Kansas Workmen's Compensation Act; that there were five or more employed in the business of respondent, employed within the state of Kansas continuously for more than one month at the time of the accident; that under G.S.1949, 44-508(b) of the Workmen's Compensation Law that machine or repair shops are specifically listed as coming under the Act, under the definition of 'factory'; that under Section 44-505 that said Act applies to the employer's trade or business in a 'factory'; that Section 44-542 prescribes that every employer entitled to come within the provisions of the Act shall be presumed to have done so and that Section 44-507 states the action shall apply to employers by whom five or more workmen have been employed within the State of Kansas continuously for more than one month at the time of the accident; that the repair shop in which claimant was employed at the time of the accident was a part of the business and helpful in producing a profit and gain on the whole for respondent.'

Respondent, appellant, is the Victory Cab Company. We have held a taxicab company operating a fleet of cabs is not covered by the words 'motor transportation line' as used in the workmen's compensation act and, therefore, is not within the act. Tuggle v. Parker, 159 Kan. 572, 156 P.2d 533.

One of the above quoted findings of the district court is G.S.1949, 44-542 prescribes 'that every employer entitled to come within the provisions of the Act shall be presumed to have done so.' (Our italics.) We are obliged to differ with the district court on that point. We concede a statement to that effect may be found in perhaps a few of our opinions including the one in Kirkpatrick v. Yeamans Motor Co., 143 Kan. 510, 54 P.2d 960, relied on by appellee. This is not a correct statement of the law and it is overruled. In the Tuggle case, supra, we repeated what frequently has been said as follows: 'It is well established, however, by our authorities that unless a business is named in the act it is not covered by the Workmen's Compensation Act. See Southern Surety Co. v. Parsons, 132 Kan. 355, 295 P. 727; also Thayer v. Bowler, 144 Kan. 136, 58 P.2d 59.' 159 Kan. at page 573, 156 P.2d at page 534.

In G.S.1949, 44-505 the Legislature expressly listed the trades or businesses it regarded as constituting hazardous employments. Such employments were thereby automatically placed under the act irrespective of the wishes of the employer. The same statute further expressly provides employers not within the purview of the act may elect to come under it by filing a written election to do so. The same statute also provides the employee of an employer who voluntarily elects to come within the act, shall be included under the act unless such employee elects not to come within it as provided by G.S.1949, 44-543. G.S.1949, 44-542 provides: 'Every employer entitled to come within the provisions of this act, as defined and provided by this act, shall be presumed to have done so, except such employers privileged to elect to come within the provisions of this act, as hereinbefore provided, unless such employer shall file with the commissioner a written statement that he elects not to accept hereunder, and thereafter any such employer desiring to change his election shall only do so by filing a written declaration thereof with the commissioner. Notice of such election shall forthwith be posted by such employer in conspicuous places in and about his place of business.'

The above quoted section is not happily phrased and confusion at times has arisen concerning its proper interpretation. Its meaning, however, is no longer open to debate. It has been held to mean employers in nonhazardous trades or businesses, that is, those not expressly listed as hazardous under the act, are not subject to its provisions unless they affirmatively elect to operate under it. Their election is not compulsory but optional. If the election were compulsory it would be futile to provide for an election. By the same token if their election to operate under the act is presumed it was a useles thing to require an election. Absent an affirmative election they are not amenable to the act. Chicago, R. I. & P. Ry. Co. v. Fuller, 105 Kan. 608, 612-614, 186 P. 127; Southern Surety Co. v. Parsons, 132 Kan. 355, 357, 295 P. 727; Schmeling v. F. W. Woolworth Co., 137 Kan. 573, 575-577, 21 P.2d 337; Baker v. St. Louis Smelting & Refining Co., 145 Kan. 273, 279-280, 65 P.2d 284, 109 A.L.R. 591; Crawford v. Atchison, Topeka & S. F. Ry. Co., 166 Kan. 163, 199 P.2d 796.

Here there was no such election by appellant. Manifestly the act can have no effect on parties not operating under it. Echord v. Rush, 124 Kan. 521, 261 P. 820....