Tilton v. Riley County
| Decision Date | 23 January 1965 |
| Docket Number | No. 44007,44007 |
| Citation | 398 P.2d 287,194 Kan. 250 |
| Parties | Maxine H. TILTON, Widow of Freddie Tilton, Deceased, Appellant, v. RILEY COUNTY and Riley County Board of Commissioners, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A county, in reconstructing a township road, is not engaged in a trade or
business within the meaning of G.S.1961 Supp., 44-505 of the Workmen's Compensation Act.
2. An election by a county to operate under the provisions of the Workmen's Compensation Act, made prior to legislative authorization, is without any valid force or effect.
C. K. Sayler, Topeka, argued the cause, Richard Wells, Manhattan and E. Dudley, Smith, Topeka, with him on the briefs, for appellant.
Donn J. Everett, County Atty., argued the cause and was on the briefs, for appellee.
This workmen's compensation case was instituted by Maxine H. Tilton (hereinafter referred to as the claimant or appellant), as the widow of Freddie Tilton, deceased, against The Board of County Commissioners of the County of Riley (hereinafter referred to as the respondent or appellee). The appeal is from a judgment rendered by the district court of Riley County in favor of appellee.
The facts are not in dispute.
Freddie Tilton had worked for the Riley County Road and Bridge Department for about twenty years. On February 18, 1963, he and five or six other road and bridge employees had been engaged in reconstructing an old township road. The reconstruction of the road involved cutting and pulling down trees, some of which were thirty feet high, so that the road could be graded and resurfaced. Tilton was killed when a branch came off one of the trees, that was being pulled over by a bulldozer, and struck him in the chest.
The parties stipulated that Tilton was employed by Riley County, which regularly employed more than five employees in the road and bridge department; that his death resulted from an accident arising out of and in the course of his employment; that at the time of such accident claimant (Maxine) was the lawful wife of Freddie; that she was wholly dependent upon him for support; and that there were no other dependents.
The Workmen's Compensation Examiner found:
The award was made against the claimant and in favor of the respondent, 'Riley County and Riley County Board of Commissioners.'
Claimant appealed to the district court which approved the award. She then appealed to this court from the judgment of the district court.
Appellant contends that, as the work being performed was dangerous, the Riley County Road and Bridge Department was under the Workmen's Compensation Act by virtue of the term 'county and municipal work' as used in G.S.1961 Supp., 44-505 which, so far as here pertinent, provides:
'This act shall apply only to employment in the course of the employer's trade or business in the following hazardous employments: Railway, motor transportation line, factor, mine or quarry, electric, building or engineering work, laundry, natural-gas plant, county and municipal work, and all employments wherein a process requiring the use of any dangerous explosive or inflammable materials is carried on, each of which employments is hereby determined to be especially dangerous, in which from the nature, conditions or means of prosecution of the work therein, extraordinary risk to the life and limb of the workmen engaged therein is inherent, necessary, or substantially unavoidable, and as to each of which employments it is deemed necessary to establish a new system of compensation for injuries to workmen. * * *'
Determination of the question thus raised by appellant requires consideration of the language of the original enactment, its amendments and this court's interpretative opinions. The section of the statute now under consideration was first enacted in 1911 (Laws of 1911, Chapter 218, Section 6.). It was amended in 1913 (Laws of 1913, Chapter 216, Section 2.). So far as here material the 1913 amendment, which first received consideration by this court, provided as follows:
'This act shall apply only to employment in the course of the employer's trade or business on, in or about a railway, factory, mine or quarry, electric, building or engineering work, laundry, natural gas plant, county and municipal work, and all employments wherein a process requiring the use of any dangerous explosive or inflammable materials is carried on, which is conducted for the purpose of business, trade or gain; each of which employments is hereby determined to be especially dangerous, in which from the nature, conditions or means of prosecution of the work therein, extraordinary risk to the life and limb of the workman engaged therein are inherent, necessary, or substantially unavoidable, and as to each of which employments it is deemed necessary to establish a new system of compensation for injuries to workmen. * * *' (Emphasis supplied.)
In Gray v. Board of County Com'rs of Sedgwick County, 101 Kan. 195, 165 P. 867, L.R.A.1918F, 182, an employee of Sedgwick County was injured while working on a county road which was being resurfaced. He sued the county under the Workmen's Compensation Act. A demurrer to the petition was overruled and the county appealed contending that it was not an employer engaged in a trade or business within the terms of the statute. This court held:
'The general purpose of the workmen's compensation act is to provide for compensation to workmen injured in hazardous employments carried on for the purpose of business, trade or gain.
'A county in resurfacing a county road is not engaged in trade or business within the terms or operation of the workmen's compensation act.' (Syl. pp1 and 2.)
And in the opinion said:
'This section seems to cover first employment in the course of the employer's trade or business in certain places or kinds of work, and, second, all employments dangerous in the way mentioned and conducted for the purpose of business, trade or gain. The words 'county and municipal work' were added by the Legislature of 1913, and if applied only to the case of one who contracts to do county or municipal work and employs workmen therein, are clear enough. But running through the entire language are the two ideas not only of an employment in certain classes of work, but an employment therein by an employer in the course of his trade or business conducted for a profit. The provisions of the statute of various other states are quoted showing that in many of them the clear use of terms has left the matter as to municipalities free from doubt, but they do not aid much in the construction of the statute before us.
'As applied to this case the amended provision may be thus read:
"This act shall apply only to employment in the course of the employer's trade or business on, in or about * * * county and municipal work, and all employments wherein a process * * * is carried on, which [employment] is conducted for the purpose of business, trade or gain: each of which employments [all those previously mentioned] is hereby determined to be especially dangerous * * * and as to each of which employments it is deemed necessary to establish a new system of compensation for injuries to workmen." (pp. 196, 197, 165 P. p. 867.)
The statutory section, now under consideration, was again considered in Robertson v. Board of Com'rs of Labette County, 122 Kan. 486, 252 P. 196, and it was held:
'A county, in constructing a hardsurface road, is not engaged in trade or business within the meaning of the workmen's compensation law.' (Syl. p1.)
The appellee lays great stress on the fact that in 1927 (Laws of 1927, Chapter 232, Section 5) the legislature eliminated the phrase 'which is conducted for the purpose of business, trade or gain.' The amendment did nothing more than to eliminate a nonsensical phrase. As the act stood before the 1927 amendment it read in substance:
'That this act shall apply only to employment in the course of the employer's trade or business * * * which is conducted for the purpose of business, trade or gain; * * *.'
After the elimination of the last quoted phrase the act still applied only to 'employment in the course of the employer's trade or business,' a phrase which eliminates 'county and municipal work' performed in a governmental capacity.
This court had the section under consideration after the 1927 amendment in Simpson v. Kansas City, 137 Kan. 915, 22 P.2d 955 (decided June 10, 1933) where it said and held:
'The principal question raised by the appeal is whether the city, in performing its governmental functions, is operating under the Workmen's Compensation Act without having filed with the compensation commissioner its election to do so. Prior to the rewriting of our Compensation Act in 1927 (chapter 232, Laws 1927 R.S.1931 Supp. 44-501 et seq.), it had become the settled law of this state that counties and municipalities of the state, in performing their normal functions, were not engaged in 'trade or business' for profit, and were not within the provisions of the Workmen's...
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