Watson v. W. S. Dickey Clay Mfg. Co.

• Decision Date: 25 January 1969
• Docket Number: No. 45186,45186
• Citation: 202 Kan. 366,450 P.2d 10
• Parties: Clarence WATSON, Appellee, v. W. S. DICKEY CLAY MANUFACTURING COMPANY, Inc. and William Schartz, Appellants.
• Court: Kansas Supreme Court

Page 10

450 P.2d 10

202 Kan. 366

Clarence WATSON, Appellee, v. W. S. DICKEY CLAY MANUFACTURING COMPANY, Inc. and William Schartz, Appellants.

No. 45186.

Supreme Court of Kansas.

Jan. 25, 1969.

Syllabus by the Court

1. In a common law action for damages resulting from personal injuries against a manufacturing company and its negligent employee, the manufacturing company defended on the ground that the plaintiff was its statutory employee under K.S.A. 44-503(a) and entitled to workmen's compensation. The trial court determined on the basis of deposition testimony and exhibits attached thereto at pretrial that the plaintiff was an independent contractor and entitled to maintain the action. Issues as to negligence and the amount of damages were thereafter tried to a jury and resulted in a verdict for the plaintiff against both defendants. On appellate review of the record it is held: (a) The plaintiff was a statutory employee of the manufacturing company under K.S.A. 44-503 and was not entitled to maintain his common law action against the manufacturing company; and (b) the plaintiff was entitled to maintain his action against the negligent employee of the manufacturing company as a fellow employee, and the judgment against such defendant on the record presented must be affirmed.

2. Where the controlling facts as to whether a workman is an independent contractor or a statutory employee under the provisions of K.S.A. 44-503(a) have not been conceded or admitted by the parties, a question of fact is presented which must be determined from the evidence.

3. Under certain circumstances when the evidence before a trial court is written, documentary in character, or in the form of depositions or transcripts, it is the duty of the appellate court to decide for itself what the facts establish, substantially as it does in an original case.

4. If a workman can recover workmen's compensation under the workmen's compensation act for an injury, the remedy is exclusive, and he cannot maintain a common law action for damages founded on negligence against a party from whom he could have recoved compensation under the act.

5. The prime purpose of K.S.A. 44-503(a) of the workmen's compensation act is to give the employees of a contractor who has undertaken to do work which is a part of the trade or business of the principal, such remedy against the principal as would have been available if they had been employed directly by the principal, and to prevent employers from evading liability under the act by the device of contracting with outsiders to do work which they have undertaken to do as a part of their trade or business.

6. Whether the relationship of employer-employee exists is to be determined in workmen's compensation cases by an application of master-servant rules. The general rule is that a master is a principal who employs another to perform services in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service. It is not the exercise of direction, supervision or control over a workman which determines whether he is a servant or an independent contractor, but the right to exercise such direction, supervision or control.

7. A fundamental premise upon which liability is predicated in the workmen's compensation act under K.S.A. 44-503(a) is the existence of a contract between the principal and the contractor.

8. Where the status of a workman is held to be that of a statutory employee of the principal under the provisions of K.S.A. 44-503(a) of the workmen's compensation act, the workmen's relationship to a negligent employee of the principal is that of a fellow employee.

9. At common law, fellow employees mutually owed to each other the duty of exercising ordinary care and each was liable for a failure in that respect which resulted in an injury to a fellow employee, following Roda v. Williams, 195 Kan. 507, 407 P.2d 471.

10. A fellow employee is to be considered as 'some person other than the employer' as contemplated in K.S.A. 44-504.

R. L. White, Pittsburg, argued the cause, and J. Curtis Nettels and D. J. Gutteridge, Jr., Pittsburg, were with him on the brief for appellants.

Russell Cranmer, Wichita, argued the cause, and J. John Marshall, Pittsburg, Gerald L. Michaud, Orval L. Fisher, M. William Syrios, Kenneth Ingham and Bradley Post, Wichita, were with him on the brief for appellee.

SCHROEDER, Justice.

This action was filed in the district court of Crawford County as a common law action to recover damages for personal injuries sustained by the plaintiff. The jury awarded damages of $10,000 against the defendants, W. S. Dickey Clay Manufacturing Company, Inc. and William Schartz. Appeal has been duly perfected by the defendants.

The basic question presented is whether the plaintiff was a statutory employee under K.S.A. 44-503(a) and is thereby precluded from recovering in a common law action against the Dickey Clay Manufacturing Company, Inc. Other questions are presented as to the defendant Schartz.

Clarence Watson (plaintiff-appellee) is a truck owner and driver who came upon the premises of W. S. Dickey Clay Manufacturing Company Inc. (defendant-appellant), hereafter referred to as Dickey Clay, for a load of sewer tile. The premises concerned is a manufacturing plant owned and operated by Dickey Clay. William Schartz (defendant-appellant) is an employee of Dickey Clay and was operating the fork lift loader on the 16th day of December, 1963, at the time of Watson's injury. The injury occurred while the truck owned by Watson was being loaded by Schartz with tile manufactured and owned by Dickey Clay. The tile was delivered to a customer of Dickey Clay. Watson was standing on the front rail of the grain box of his truck, holding a large rack in an upright position, when a load of tile bumped the rack and caused Watson to fall to the ground, thereby causing the alleged injuries.

Dickey Clay contends that it is one of the class of employers covered by the workmen's compensation act, and by reason of purchasing workmen's compensation insurance, all of its employees are entitled to and do come within the provisions of the act; that at the time and place of the accident Watson was performing work which was an integral part of the business of Dickey Clay, and by reason thereof Watson was an 'employee' of Dickey Clay and thus barred from filing the common law action herein. Dickey Clay contends Watson's sole remedy as to Dickey Clay is under the workmen's compensation act of Kansas.

In the trial court Dickey Clay filed a motion for summary judgment after issues were joined by the pleadings. Thereafter, on motion the trial court admitted deposition testimony and exhibits in connection therewith.

The record does not establish that the trial court made its pretrial order on the basis of Dickey Clay's motion for summary judgment. The pretrial order reads in part:

'The above case is before the court for pretrial conference this 19th day of September, 1966, and the following action is taken:

'1. Plaintiff states that his cause of action is based upon negligence of Schartz, an employee of Dickey Company, in the following particulars: In operating a fork lift without keeping a proper lookout; in operating a fork lift at an excessive speed, and in not keeping the same under proper control; in failing to sound any warning to plaintiff. That the negligence of defendants was a proximate cause of his injuries and damages.

'2. Defendants both deny generally plaintiff's allegations and deny any negligence. Defendants allege that plaintiff, Watson, was an employee of defendant Dickey Company, and that his exclusive remedy is under the Workmen's Compensation Act of Kansas. Defendants raise the defense of fellow servant and assumption of risk if plaintiff is in the status of an employee of Dickey Company; if not, the defense of contributory negligence is alleged, in that plaintiff placed himself in a position of peril.

'3. There are no amendments to pleadings.

'4. The issue of plaintiff's status as an employee of Dickey Company under the Workmen's Compensation Act, or an independent contractor is to be submitted to the court as a question of law.

'5. Defendant Dickey Company admits that William Schartz was an employee, acting within the scope of his employment at all times material.

'On the 12th day of October, 1966, the following additional action is taken:

'1. The parties are present by counsel and present evidence consisting of the depositions of William Schartz, Grace Teter, James Kilroy, Clarence Hallberg, Clarence Watson, John Resnar, Kenneth Akers and attached exhibits, on the question of law of the status of plaintiff as an employee of Dickey Company, or an independent contractor. The court, after considering the evidence and arguments of counsel, rules as follows: The plaintiff, while on defendant Dickey Company premises under the circumstances disclosed by the evidence is an independent contractor, the plaintiff occupying the status of a business visitor.

'2. The issues of fact to be tried are:

1. Were defendants negligent?

2. If so, was the negligence a proximate cause of injury to plaintiff?

3. The amount of any damages sustained by plaintiff.

4. Was plaintiff contributorily negligent?

'The above order shall control unless modified to prevent undue hardship or injustice.' (Emphasis added.)

The evidence submitted at the trial of the action was on the factual issues, and the instructions of the court pertain to the factual issues set out in the pretrial order.

The jury returned a verdict in favor of Watson and against both defendants in the sum of $10,000, from which judgment appeal has been duly perfected.

On the basic issue determined by the trial court in its pretrial order, as to whether Watson was an 'employee' of Dickey Clay under the provisions of K.S.A. 44-503(a) of the workmen's compensation act, we are confronted with a...