Wegele v. The Ismert-Hincke Milling Company
| Decision Date | 06 December 1919 |
| Docket Number | 22,364 |
| Citation | 186 P. 130,105 Kan. 615 |
| Parties | WILLIAM WEGELE, Appellee, v. THE ISMERT-HINCKE MILLING COMPANY, Appellant |
| Court | Kansas Supreme Court |
Decided July, 1919.
Appeal from Shawnee district court, division No. 2; GEORGE H WHITCOMB, judge.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
WORKMEN'S COMPENSATION ACT--New Election Not to Accept it Necessary after Its Revision. For the reasons set out in the opinion in Railway Co. v. Fuller, ante, p. 608, which was argued and submitted together with this case, it is held that under the law as it now exists all employers of five or more workmen, engaged in industries characterized by the statute as especially dangerous, are subject to the compensation system, except where notice to the contrary has been given subsequent to the adoption of the act of 1917 in relation thereto, irrespective of what may have been done before that time.
Adrian F. Sherman, J. J. Schenck, both of Topeka, and Thad B. Landon, of Kansas City, Mo., for the appellant.
Edwin D. McKeever, Otis E. Hungate, and Paul E. Heinz, all of Topeka, for the appellee.
William Wegele brought an action against the Ismert-Hincke Milling Company, a corporation, on account of an injury received by him in February, 1918, while working in a mill owned and operated by it at Topeka, alleging the injury to have been due to negligence of the defendant. An answer was filed setting out facts relied upon as showing that at the time of the accident the defendant was operating under the workmen's compensation act, and therefore was not amenable to a suit based upon the violation of a common-law duty toward an employee. A demurrer to the answer was sustained on the ground that the facts stated failed to show that the defendant had accepted the provisions of the compensation act, and an appeal is taken from that ruling.
In December, 1915, the defendant's sole business was operating a mill at Kansas City, Kan., which it owned. In that month it filed notice with the secretary of state that it elected not to come under the provisions of the workmen's compensation act, and has never filed any other declaration in relation thereto. In July, 1916, it purchased a mill at Topeka, which at the time was operated under the compensation law. It maintains that the plaintiff's remedy is confined to relief under the compensation statute for two reasons: (1)...
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