Workman v. Kansas City Bridge Co.

• Decision Date: 06 June 1936
• Docket Number: 32920.
• Citation: 58 P.2d 90,144 Kan. 139
• Parties: WORKMAN et al. v. KANSAS CITY BRIDGE CO.
• Court: Kansas Supreme Court

58 P.2d 90

144 Kan. 139

WORKMAN et al. v. KANSAS CITY BRIDGE CO.

No. 32920.

Supreme Court of Kansas

June 6, 1936

Syllabus by the Court.

Extent of liability of employer to employee for compensation is based on contract of employment, including provisions of Workmen's Compensation Act (Laws 1927, c. 232, as amended).

Ordinarily in determining amount of compensation to be awarded, injured employee's wage must be computed in accordance with terms of contract of hiring and statutes in force at time of accident (Laws 1927, c. 232, as amended).

Amount of recovery of compensation for death of employee caused by accident held controlled by provisions of Workmen's Compensation Act in force at time of injury and not provisions which subsequently became effective (Rev.St.Supp.1933, 44--535; Laws 1927, c. 232, § 10(2), as amended by Laws 1931, c. 217).

Compensation for death of unskilled pile driver whose services were obtained through Federal Emergency Relief office in construction of bridge under contract with state highway commission limiting maximum hours of labor to 30 hours per week and fixing minimum wage for unskilled labor at 50 cents per hour held properly based on weekly wage of $15 notwithstanding amount of wages received by employee from other employers during preceding year or statute relating to hours of labor of employees of state or municipalities (Laws 1927, c. 232, § 10(2), as amended by Laws 1931, c. 217; Rev.St.Supp.1933, 44-- 201; 40 U.S.C.A. § 406).

1. The extent of the liability of an employer to his employee is based upon the contract of employment, which includes the provisions of the Workmen's Compensation Act (Laws 1927 c. 232, as amended). Under the facts narrated in the opinion held, the contract for labor under the federal relief project involved was limited to 30 hours per week at 50 cents per hour.

2. In determining the amount of compensation awarded, injured employee's wage must ordinarily be computed in accordance with the terms of the contract of hiring, and the statutes in force at time of accident.

Appeal from District Court, Wyandotte County, Division No. 4; Charles A. Miller, Judge.

Action under the Workmen's Compensation Act by Myrtle Workman, individually and as guardian of Herbert Edward Martin, against the Kansas City Bridge Company. From an adverse judgment, the plaintiff appeals.

Paul H. Ditzen, of Kansas City, for appellants.

E. S. McAnany, T. M. Van Cleave, W. L. Phillips, and B. W. Alden, all of Kansas City, for appellee.

WEDELL Justice.

This is a workmen's compensation case. The workman was killed and the claim was filed on behalf of his widow and minor child.

The sole question is the amount of compensation to which appellants are entitled. They appeal from the judgment of the district court affirming the award of the commissioner. The contention is they are entitled to a larger award. In December, 1932, appellee, the employer, entered into a contract with the state highway commission, to construct a bridge over the Kansas river at Seventh street, in Kansas City, Kan. The entire structure is located in this state. The funds for the project were obtained by the highway commission from an appropriation under an act of Congress. The pertinent portion of that act (40 U.S.C.A. § 406) provided: "No individual directly employed on any such project shall be permitted to work more than thirty hours in any one week." The contract between appellee and the highway commission provided that skilled and unskilled labor should not be permitted to work more than 30 hours per week. The minimum wage for unskilled labor was 50 cents per hour; the maximum wage for skilled labor was 65 cents per hour. The services of the workman were obtained through the county unit of the Federal Emergency Relief office in Kansas City, Kan. He was employed on January 5, 1933, as a pile driver; which work was classified by the highway commission as unskilled labor. During his employment with appellee, the workman's rate of pay was 50 cents an hour. The maximum of 30 hours per week was divided on the basis of a 5-hour day and a 6-day week. The workman's weekly wage was therefore $15. Deceased had been employed during the year preceding the accident only from January 5, 1933, to February 9, 1933, the date of his accident and death.

Evidence was further introduced on behalf of appellants, that: Deceased had worked for other employers on structural iron work in the year preceding his death and had received from such other employers $9 for an 8-hour day; 8 hours was a customary day for all classes of labor in the year preceding the workman's death; 5 days was a standard working week for both skilled and unskilled labor; pile drivers on the project were given an examination relative to their qualifications as iron workers; with appellee the customary day was one of 8 hours and the customary week was one of 5 or 5 1/2 days; the only place it had worked 6 days a week was on river improvement work; on this project some men at times worked more than 5 hours on some days, due to weather conditions preventing their working 5 hours on certain other days; in no event could the total number of hours which the deceased worked exceed 30 hours per week.

Appellants contend the wages received by deceased as an iron worker, from other employers, during the preceding year should be taken into account in determining proper compensation. It is also urged the 48-hour week would be a proper basis for determining weekly compensation or that at least the award should be fixed on a 40-hour week. They contend the provisions of 1933 Supp.R.S. 44--201, approve and recognize an 8-hour day. The intent and purpose of that statute is to prevent the state or municipalities, except in extraordinary emergencies, from compelling labor in excess of 8 hours per day. It prescribes for the parties designated only a maximum number of hours per day in excess of which they may not contract. In no other sense does that statute attempt to regulate the right of contract.

Two questions require our attention: First, what was the contract? Second, what compensation does the statute provide for the death of the workman? Under the Workmen's Compensation Act, the liability of an employer to his employee is a liability arising out of contract, and the terms of the statute are embodied in the contract. The injured employee must therefore recover upon the contract with his employer. Moeser v. Shunk, 116 Kan. 247, 226 P. 784; Johnson, Guardian, v. Ismert-Hincke Milling Co., 116 Kan. 731, 229 P. 359; Ross v. Austin Drilling Co., 131 Kan. 824, 293 P. 757.

It follows appellants cannot recover from this employer upon the basis of a former contract deceased had with another employer. His contract with appellee was definite. It was limited to 30 hours per week. The pay at which he was employed and which he accepted was...