Woods v. Cessna Aircraft Co.

• Citation: 220 Kan. 479,553 P.2d 900
• Decision Date: 23 July 1976
• Docket Number: No. 48061,48061
• Parties: Warren G. WOODS, Appellant, v. CESSNA AIRCRAFT COMPANY et al., Appellees.
• Court: Kansas Supreme Court

Page 900

553 P.2d 900

220 Kan. 479

Warren G. WOODS, Appellant, v. CESSNA AIRCRAFT COMPANY et al., Appellees.

No. 48061.

Supreme Court of Kansas.

July 23, 1976.

Syllabus by the Court

1. Before summary judgment may be granted under K.S.A. 60-256(c) the record must show that there remains no genuine issue as to a material fact; that when ruling on a motion for summary judgment, the district court must overrule the motion when any doubt exists whether there remains a genuine issue of material fact, and that the evidentiary material presented by the party opposing the motion must be taken as true and given the benefit of all reasonable inferences.

2. In connection with K.S.A. 44-503(a) under the Workmen's Compensation Act, this court has laid down two rather definite tests by which to determine whether the work covered by a contract is part of the principal's trade or business, i. e.: (1) Is the work being performed by the independent contractor and the injured employee necessarily inherent in and an integral part of the principal's trade or business? (2) Is the work being performed by the independent contractor and the injured employee such as would ordinarily have been done by the employees of the principal? If either of the foregoing questions is answered in the affirmative the work being done is part of the principal's 'trade or business,' and the injured employee's sole remedy against the principal is under the Workmen's Compensation Act.

3. The record on appeal in an action by a father to recover against a principal for the wrongful death of his son, an employee of an independent contractor, is examined and it is held: The trial court erred in granting the principal's motion for summary judgment when factual questions were unresolved as to whether the contractor and its employees were engaged in work which was a part of the principal's trade or business as that term is used in K.S.A. 44-503(a).

Otto J. Koerner, Randall H. Elam, Wichita, of Koerner & Elam, Wichita, argued the cause and were on the brief for appellant.

Alvin D. Herrington of McDonald, Tinker, skaer, Quinn & Herrington, Wichita, argued the cause, and Norman I. Cooley, Wichita, was with him on the brief for appellees.

SCHROEDER, Judge:

This is an appeal in an action brought by Warren G. Woods (plaintiff-appellant) to recover damages for the wrongful death of his son, Steven Marsh Woods, an employee of Coonrod & Walz Construction Company, Inc. Steven's death resulted from injuries when he was struck by an aircraft owned by Cessna Aircraft Company and operated by two Cessna employees, Ronnie D. Lowe and Joe G. Couch. The Sedgwick County District Court granted summary judgment in favor of Cessna Aircraft Company, Ronnie D. Lowe and Joe G. Couch (defendants-appellees) finding the Kansas Workmen's Compensation Act provided the exclusive remedy for the appellant.

The question presented is whether the work of Coonrod & Walz Construction Company, Inc., an independent contractor, was necessarily inherent in and an integral part of Cessna Aircraft Company's trade or business so as to make Steven Woods, who was an employee of Coonrod, a statutory employee of Cessna under K.S.A. 44-503(a) (now K.S.A.1975 Supp. 44-503(a)) and thereby preclude his father from recovering in a wrongful death action against Cessna and the two Cessna employees.

Cessna Aircraft Company (hereafter Cessna) is a large airplane manufacturer in Wichita. Ronnie G. Lowe and Joe G. Couch were Cessna employees at all times involved herein. Coonrod & Walz Construction Company, Inc., (hereafter Coonrod) is a large construction company in Wichita which employs union men in the various construction trades. Steven Woods was a college student employed part time by Coonrod as a timekeeper. His duties consisted of keeping track of Coonrod employees' work hours, bringing paychecks to workers on the construction sites and running errands.

Coonrod has often won bids to do construction work for Cessna. Over the years fifteen to twenty per cent of Coonrod's construction work was performed at Cessna. On January 23, 1973, Coonrod had four construction contracts with Cessna. One contract was for the construction of a hangar with a 150 foot clear span for the Wallace Division of Cessna, manufacturer of Citation jet aircraft. Pertinent to this appeal, the contract provided Coonrod would maintain workmen's compensation and employer's liability insurance.

Steven Woods spent most of his time working at the Coonrod projects on Cessna's premises. On January 23, 1973, Steven brought payroll checks from Coonrod's downtown office to the Cessna construction site trailer. He then went outside. While standing on a Cessna taxiway Steven was struck by a Cessna airplane being taxied by Ronnie D. Lowe and Joe G. Couch. He died on January 25, 1973.

Steven left neither widow nor surviving children. Warren G. Woods, Steven's father, is the sole surviving heir-at-law of the decedent. Warren sued Cessna, its employees, and the manufacturer and supplier of aircraft brake components for $50,000 for the wrongful death of Steven and for $4,218 for medical, hospital and funeral expenses and costs.

Cessna filed a motion for summary judgment after the issues were joined by the pleadings. The trial court considered deposition testimony, the contracts between Cessna and Coonrod and affidavits of Cessna's employees and sustained the motion for summary judgment. It found Coonrod's construction work was necessarily inherent in and an integral part of Cessna's business; that Steven was engaged in the execution of the work under Cessna's contract with Coonrod at the time of his death; that Ronnie D. Lowe and Joe G. Couch were employees of Cessna; and that Steven was a statutory employee of Cessna by virtue of K.S.A. 44-503(a). Since Steven was a statutory employee of Cessna, the trial court held a wrongful death action could not be maintained. Appeal has been duly perfected.

The relative positions of the parties are apparent by noting the effect of the trial court's ruling. Because the decedent had no dependents, if the trial court is correct, K.S.A. 44-510b(a) (now K.S.A.1975 Supp. 44-510b(i)) limits the recovery of a workman who dies without leaving any dependents to $750. Had the decedent left dependents, it is not inconceivable the parties may have taken legal positions directly opposite to those taken here. Nevertheless the same rule must govern a given set of facts whether invoked for the benefit of an employer or an employee. (Shuck v. Hendershot,185 Kan. 673, 347 P.2d 362; and Schafer v. Kansas Soya Products Co., 187 Kan. 590, 358 P.2d 737.)

The trial court granted the appellees' motion for summary judgment. We have held that before summary judgment may be granted under K.S.A. 60-256(c) the record must show that there remains no genuine issue as to a material fact; that when ruling on a motion for summary judgment, the district court must overrule the motion when any doubt exists whether there remains a genuine issue of material fact, and that the evidentiary material presented by the party opposing the motion must be taken as true and given the benefit of all reasonable inferences. (Thompson v. Anderson, 209 Kan. 547, 555, 498 P.2d 1, 55 A.L.R.3d 710.)

With this background we now examine the appellant's claims, looking first to the exclusive remedy provided by the Workmen's Compensation Act. K.S.A. 44-501 (now K.S.A.1975 Supp. 44-501) states in part:

'. . . Save as herein provided, no such employer, or other employee of such employer, shall be liable for any injury for which compensation is recoverable under this act . . ..'

It is well settled that 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 upon negligence against a party from whom he could have recovered compensation under the Act. (Anderson v. Beardmore, 210 Kan. 343, 345, 502 P.2d 799; Hanna v. CRA, Inc., 196 Kan. 156, 158, 409 P.2d 786; Lessley v. Kansas Power & Light Co., 171 Kan. 197, 203, 231 P.2d 239 and authorities cited therein.)

The appellant attacks the constitutionality of this rule. He contends taking away a statutory remedy for wrongful death without providing some substitute remedy and benefit would be a denial of due process of law.

The appellant's brief argument cites no authority to support his position. Suffice it to say the Workmen's Compensation Acts of Kansas and other states have been upheld against similar due process attacks. (Shade v. Cement Co., 93 Kan. 257, 144 P. 249; 81 Am.Jur.2d, Workmen's Compensation, § 21, pp. 715-716; and 99 C.J.S. Workmen's Compensation § 19e(1), pp. 74-75.)

In Spade v. VanSickle, 175 Kan. 557, 265 P.2d 860, a workman died without dependents. The court held his mother, who filed a common law action for negligence against the employer, was not entitled to maintain that action. Recovery was limited to the Workmen's Compensation Act. (See also Stonecipher v. Winn-Rau Corporation, 218 Kan. 617, 545 P.2d 317.)

The Workmen's Compensation Act is designed to provide broad coverage by covering employees of certain contractors and subcontractors. K.S.A. 44-503(a) provides:

'Where any person (in this section referred to as principal) undertakes to execute any work which is a part of his trade or business or which he has contracted to perform and contracts with any other person (in the section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him . . ..'

Since Cessna, as principal in this case, had undertaken by contract to have the construction work on its premises...