Tierney v. Southwestern Bell Telephone Company

• Decision Date: 10 November 1923
• Docket Number: 25,059
• Citation: 114 Kan. 706,220 P. 190
• Parties: ANNA TIERNEY, as guardian and next friend of THOMAS B. TIERNEY, a minor, Appellee, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant
• Court: Kansas Supreme Court

220 P. 190

114 Kan. 706

ANNA TIERNEY, as guardian and next friend of THOMAS B. TIERNEY, a minor, Appellee, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant

No. 25,059

Supreme Court of Kansas

November 10, 1923

Decided July, 1923.

Appeal from Crawford district court, division No. 2; GEORGE F BEEZLEY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. COMPENSATION ACT--Workman Injured While in Employ of Telephone Company--Accident Arose Out of and in Course of His Employment. A workman employed by a telephone company to go from place to place to charge the batteries at its various telephone exchanges and who was occasionally detailed to assist its telephone linemen in locating interference on its wires on the highway, and who while so engaged broke his arm while cranking an automobile on the public highway, which automobile was being used for hauling telephone repair tools and to transport the plaintiff and another workman, has a valid claim on his employer for compensation, such accident and injury having arisen out of and in the course of his employment within the meaning of the Workmen's Compensation Act.

2. SAME--A Public Highway Along Which Telephone Wires Are Strung is Within the Danger Zone of the Company's Employees. A public highway along which telephone wires are strung is within the zone of danger to the telephone company's employees whose duties require them to travel on such highway to inspect the wires and to hunt for and correct wire interference.

3. SAME--Injury Incidental to Workman's Employment. Where by statute an employment is declared to be hazardous and compensation is allowed for all injuries sustained by workmen engaged in such employment, with or without their fault and with or without any fault of the employer, it does not defeat an injured workman's claim to compensation that his particular injury was not caused by some hazard peculiar to such employment; it is sufficient if it was incidental to such employment.

4. SAME--Arbitration--No Prejudicial Error in Proceedings Before Arbitrator. The scope of an arbitrator's functions, where appointment of an arbitrator was resisted, considered, but no error prejudicial to defendant discerned in the appointment of the arbitrator herein, nor in the matters referred to him.

C. J. Evans, Davis E. Palmer, both of Topeka, and John P. Curran, of Pittsburg, for the appellant. J. W. Gleed, of Topeka, and Claude Nowlin, of St. Louis, Mo., of counsel.

F. B. Wheeler, R. L. Robertson, and Sylvan Bruner, all of Pittsburg, for the appellee.

OPINION

DAWSON, J.:

This is an appeal from a judgment awarding compensation to a workman injured in the service of the defendant telephone company.

The plaintiff, a youth of seventeen years, was employed by the defendant. His ordinary duties were the charging of batteries in defendant's telephone exchanges in the villages of Crawford county. On a few occasions he had been detailed to hang loose wires in an office and to assist a telephone line repair man. He resided at Pittsburg, and in going to the villages nearby in the discharge of his duties he sometimes traveled on the interurban railway and sometimes rode with defendant's linemen in an automobile. One morning in July, 1922, he was directed by his superior officer to go to Weir City to charge the batteries at the central exchange, and was told that a lineman was going to Weir City in defendant's automobile and that plaintiff should ride with him. The lineman was making the journey to examine the telephone lines along the highway to locate some wire interference which was causing trouble in the telephone service. Plaintiff was directed by his superior officer to render assistance to the lineman. On this journey the lineman and plaintiff halted at intervals, and the lineman would climb a telephone pole and make a test connection with some central exchange. Finding the connection satisfactory, they would continue their journey to some point further on and repeat the test. At one of such stops, the lineman made the test and finding the line free of trouble, he decided to make another test some distance away, and said to plaintiff: "You crank the car and turn it around and run it down and I will walk." Plaintiff started to obey and in cranking the car, it "kicked back" and broke his arm.

Compensation was demanded and refused; action was begun; an arbitrator was appointed over defendant's objections; findings and award allowed; and judgment was entered accordingly.

Defendant appeals, its main contention being that plaintiff's accident and injury and defendant's liability thereunder were not governed by the workmen's compensation act.

Defendant begins its argument with an analysis of those features of the act which deal with the appointment of an arbitrator and with the limited scope of the arbitrator's functions except where other matters are referred to him by consent of the parties or by order of court. But it will shorten our task, perhaps, to consider, first, whether the case was governed in any respect by the compensation act. The statute, in part, provides:

"This act shall apply only to employment . . . on, in or about a railway, factory, mine or quarry, electric, building or engineering work, . . ." Laws 1917, ch. 226, § 1.)

"'Electrical work' means any kind of work in or directly connected with the construction, installation, operation, alteration, removal, or repair of wires, cables, switchboards or apparatus used for the transmission of electrical current, or operation of telegraph or telephone lines." (§ 2.)

Did not the plaintiff's employment fall within this classification? His principal duties were the charging of telephone batteries, but occasionally he was detailed to assist linemen in their work. When assisting linemen, his usual task was to hand them their tools, help string wires, and tie wax-pots on a rope. On the day of his injury he was assisting the lineman in locating wire interference on the public highway. The automobile was being used to transport the plaintiff and the lineman in the discharge of their duties and to carry the necessary tools. The car had to be stopped and it had to be cranked and started again as they went from place to place along the highway making telephone tests. So it seems indisputable that when he broke his arm in cranking the car, to start it on the next lap of the journey, plaintiff was in his master's service, and that the accident arose out of and in the course of his employment.

But it is argued that he was not engaged in electrical work, wire repairing, or operating a telephone line, when the accident occurred--that he was merely cranking a Ford car, the hazard of which undertaking is the same in all walks of life, and not related in any way to the hazards of industrial accidents in the telephone business. The compensation act declares certain occupations to be hazardous and imposes a compensatory charge upon such business for injuries sustained by workmen engaged therein, with or without fault of employer or employee, where such injuries arise from the employment and because of it. The compensation thus allowed is not restricted to injuries which flow from the hazardous features of the employment, but to all injuries which are incidentally sustained in such employment, whether the injuries flow from some peculiar hazard of the business or not. Thus it was through no hazard peculiar to the business of a stockyard that a workman was injured by an electrical shock in passing through a door on the stockyard's premises, but compensation was allowed. ( White v. Stock Yards Co., 104 Kan. 90, 177 P. 522.) No hazard peculiar to the business of making boxes in a soap factory caused the injury to a young girl employee--she was hurt during the lunch hour while playing with other young workmates on a small truck, but compensation was...