Wise v. The Central Dairy Company

• Decision Date: 12 June 1926
• Docket Number: 26,722
• Citation: 246 P. 501,121 Kan. 258
• Parties: HOBART M. WISE, Appellee, v. THE CENTRAL DAIRY COMPANY, Appellant
• Court: Kansas Supreme Court

246 P. 501

121 Kan. 258

HOBART M. WISE, Appellee, v. THE CENTRAL DAIRY COMPANY, Appellant

No. 26,722

Supreme Court of Kansas

June 12, 1926

Decided January, 1926.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WORKMEN'S COMPENSATION ACT--Hearing--Necessity for Request or Objection to Predicate Error. In a workman's compensation case, when a party is given a hearing upon every question he requests a hearing upon, and is given the kind of a hearing he requests, the judgment will not be reversed for lack of a proper hearing.

2. SAME--Injuries Within Act--"In, On or About Factory." Defendant conducted a wholesale dairy business, in which it used a number of auto trucks. Plaintiff was employed by defendant to keep the trucks in repair. Defendant's foreman directed plaintiff and other employees to push a truck into a street, down a grade, to loosen the starter which had stuck, and repair it. This was done. While plaintiff was working on the truck, on the street, about 200 feet from the factory, he was struck and injured by a passing automobile. Held, the injury occurred "in, on or about the factory" of defendant within the meaning of R. S. 44-505.

Arthur J. Mellott, of Kansas City, Homer A. Cope and Austin D. Hadsell, both of Kansas City, Mo., for the appellant.

William E. Carson, of Kansas City, for the appellee.

OPINION

HARVEY, J.:

This is a workman's compensation case. There were findings and judgment for plaintiff, the workman. Defendant, the employer, has appealed.

Defendant is engaged in the wholesale dairy business and has a plant where it receives milk, manufactures butter, etc., and from which it distributes its products. Its building is in the shape of an L, the base being near the alley. The part of the lot toward the front not occupied by the building is used as a loading and unloading place for its trucks, a number of which are used by defendant in its business. Plaintiff, an automobile machinist, was employed to keep the trucks in repair. He went to work every afternoon at two o'clock and put in whatever time was necessary to see that the trucks were in proper running condition, sometimes working only a few hours a day and sometimes working far into the night. On the day the injury of which he complains occurred he had just completed work on one truck and was told that the starter on a certain Ford truck was stuck and was asked to repair it. Near the plant there is quite a grade in the street. The foreman directed plaintiff, the driver of the truck and another employee to push the Ford truck out into the street and down this grade and try to force the starter loose, and that was done. The starter was forced loose by this method. The car was then stopped on the street about 200 feet from defendant's plant. Plaintiff raised the hood of the truck and was examining to see what caused the starter to stick, and to repair it, and while thus working on the truck a Ford coupe, driven by some one who was not an employee of defendant, was driven so that it struck him, breaking his leg and otherwise causing injury. There is no controversy here over the extent of the injury, nor the amount of compensation allowed, if plaintiff is entitled to compensation.

A request for arbitration was made and refused. An application for the appointment of an arbitrator was filed and notice given to defendant. Defendant filed a written objection to the appointment of an arbitrator "for the reason that said employee, the plaintiff herein, was not injured by reason of an accident in, on or about the factory of employer, or defendant's place of business," and filed affidavits in support of this contention. Plaintiff also filed affidavits. These affidavits covered fully the nature of the employment and the circumstances under which the accident occurred. Upon a hearing of the matter and consideration of the affidavits, the court overruled the objection of defendant and appointed an arbitrator, and directed him to find and determine whether the relation of employer and employee existed between the parties; whether the parties were subject to the terms of the compensation act; whether plaintiff received personal injury by accident arising out of and in the course of his employment; whether notice of injury was given and claim for damages made; what was the nature and extent of the injury; what were the average annual earnings of plaintiff; the period of permanent total disability, if any, and of partial disability, and the character thereof; the amount of compensation due plaintiff, if any, and the mode of payment of same; what should be paid, if anything, for medical and hospital fees; and all other findings necessary, requested by either party, fully to carry out the provisions of the compensation act.

At the hearing before the arbitrator defendant objected to any proceedings, for the reason that the plaintiff was not injured by "an accident in, on or about the factory of the employer, or at the defendant's place of business," and further objected to the arbitrator "passing on any questions other than the amount of compensation, the character and quality of the disability, and the period for which compensation shall be made, and objects further to the arbitrator finding on any of the other questions submitted." These objections were overruled. The arbitrator took the testimony and...