Duncan v. Perry Packing Co.

174 P.2d 78, 162 Kan. 79, 1946 Kan. LEXIS 209

• Court: Supreme Court of Kansas
• Decided: November 9, 1946
• Docket: No. 36,640
• Status: Published

Opinions

The opinion of the court was delivered by

Hoci-i, J.:

This was a common-law action against an employer to recover damages for the wrongful death of an employee, the wife of the plaintiff. The case is here on appeal by the plaintiff from an order sustaining the defendants’ demurrer to the petition. The demurrer was sustained on the ground that the injury resulting in death was within the workmen’s compénsation act and that therefore a common-law action for damages would not lie. The controlling question is whether the injury was a “personal injury by accident-arising out of and in the course of employment” within the meaning of the workmen’s compensation act (G. S. 1935, 44-501).

The case being here on demurrer, all facts well pleaded in the petition must be taken as true. The pertinent facts, disclosed by the allegations, may be summarized as follows: The defendant company, the Perry Packing Company, is a Kansas corporation which has for many years been engaged in the poultry and cold-storage business in Manhattan, Kan.; the three individual defendants named were the general manager, the superintendent of the poultry department, who was in general charge of the picking room where the injury occurred, and the foreman of the picking room who was subject only to the order and direction of the superintendent and general manager; the company was operating under the Kansas workmen’s compensation act and the employee whose wrongful death is alleged had not elected not to come within the workmen’s compensation act; at all times in question there wás in force in Manhattan an ordinance entitled Electrical Ordinance, which ordinance was referred to and made a part of the petition; said ordinance provided that all electric light, heat or power wires or apparatus should be installed in accordance with the requirements of the national electric code, provided that in certain cases deviation from such rules and requirements might be authorized by the electrical inspector; under the ordinance permits for electrical construction work may be issued only to master electricians who have complied with the provisions of the ordinance, and every person entering upon any electrical construction or erection of any light, heat or power wires in any new building in Manhattan — with certain exceptions not here material — is required to make application on forms furnished by the city to the electrical inspector for a construction permit before proceeding with such construction; the ordinance further provides that “all service wires shall be in conduit, and all main switches shall be enclosed in an approved steel cabinet of a safety enclosed type, and operated from the outside of the enclosure, and so marked as to indicate plainly, without opening the enclosure, whether the switch is in the ‘on’ or ‘off’ position. All service wires to be not less than No. 10 B. & S. gauge”; the ordinance further provides that “approved metallic conduit, armored cable or metal moulding shall be required . . ¡ in any installation requiring more than three feet of conductor in old buildings or additions thereto . . . and all such conduit, armored cable or metal moulding shall be installed according to the rules of the national electric code”; the defendants failed to comply with section 10 and with the provisions of the national electric code because they did not install the machine referred to, or the wires or apparatus connected with the machine, in accordance with the rules and requirements of section 10 or of said national electric code; the electrical inspector did not authorize any deviation from the rules and requirements, nor did the defendants apply for or obtain any permit for installation of the machine here involved and did not install it in accordance with above recited provisions of the ordinance, and “did not maintain said electrical apparatus in accordance with said ordinance in that the service wires were not placed in conduits, or metallic conduits, armored cables, or metal moulding, or comply with any other similar provisions of said ordinance, but maintained the said machine in an unsafe and dangerous condition”; for more than four years prior to July 17, 1944, the date of the fatal injufy involved, the defendant company had maintained an electrically operated machine in the picking room of its plhnt, which machine — being called a buffer — had a large cylindrical shaped part about two feet in diameter and six feet in circumference and about three or four feet long and equipped with rubber teeth; near one end of the machine was a steel 'platform large enough for one person to stand upon while applying scalded chickens recently killed to the buffer in a manner which would cause the feathers to be removed rapidly;- in performing this operation, the employee standing upon the platform would take hold of the scalded-chickens which were being transported above the buffer by a chain upon which said chickens were hung immediately after being scalded; the machine was located on a cement floor and the buffer was turned rapidly by an electric motor carrying 440 volts of electricity.

At the time when the injury to the employee occurred, and for about four years prior thereto, this electrically propelled machine was not grounded and all of the electric current was transmitted to the machine in what is known as “B’X wiring.”

On many occasions over a period of four years prior to July 17, 1944, and “by reason of the conditions obtaining and the faulty installation and handling of said electric current, sundry employees had received severe shocks through said machine and on many occasions flashes of fire resembling lightning had been observed by employees within said picking room and especially in and about said machine and buffer.”

Isabel Duncan, wife of the plaintiff and mother of his six minor children, had been employed by the defendant company during the months of May, June and until the 17th day of July, 1944, and at no time during that period had any such incidents occurred and she “had no knowledge whatever regarding the uncontrolled electric current and the shocking of persons and activities of said electric current in said picking room” and the plaintiff in the action had no knowledge thereof; other employees knew about these electric shocks suffered by persons and about flashes of electricity in the room and during all of the four years prior to July 17, 1944, the foreman and the superintendent had full knowledge thereof and at all times knew that the machine was not grounded and during all of the same period the general manager had intimate knowledge concerning the installation, shorting, the ungrounded condition and the flashes of fire as they appeared in the picking room; “all of said officers knew that said machine was dangerous to the life and limb of persons employed in said picking room” but notwithstanding this knowledge of these dangers they “willfully neglected and refused to mend said machine or correct or eliminate said dangers.”

On July 17, 1944, “Isabel Duncan, while in the performance of her assigned duties on said machine was suddenly electrocuted and killed in said picking room”; she was then thirty-eight years of age and in fine health; the defendants knew at all times that the uncontrolled 440 volts of electricity was inherently dangerous to the life and safety of every employee and especially to Isabel Duncan who had been' assigned to stand upon the platform heretofore mentioned, but notwithstanding that fact- they selfishly and willfully neglected and refused to eliminate the danger or do anything about it; defendants knew that Isabel Duncan had spent most of her life upon a farm, had had no experience with electric current, knew nothing about the dangers and hazards of electric current installed in the faulty manner heretofore stated, but “notwithstanding their full knowledge in that respect, they willfully neglected to tell her anything about that which she should know regarding the faulty installation, the ungrounded condition and the dangers obtaining in said picking room . . . and selfishly and willfully neglected and refused to advise or tell her anything about it”; the defendants knew that the electric current was ungrounded in the room which had a cement floor “and with the lavish use of water necessary in the scalding operation and handling of said chickens with 440 volts of electricity used in the propelling of said machine as faultily installed as herein alleged was a constant threat to any life which was working in and about said picking room and es^ pecially where Isabel Duncan was forced to stand while so employed,” but that notwithstanding such knowledge they selfishly and willfully neglected and refused to eliminate the danger or do anything about it; defendants knew that a heavy rubber mat should be placed upon the steel platform in question in order to protect the body of the 'employee against the electric current that might find its way into the platform but they selfishly and willfully neglected and refused to install such mat upon the platform; defendants knew that in the picking room a great amount of water was used in scalding the chickens, that the floor was constantly wet.and that water was constantly dropping from the chain transporting the chickens above the buffer to the floor and on the machine, and they knew that “the electric installation in and all about said picking room was made of what is known as ‘B’X’ installation, or insulation, and that said ‘B’X’ insulation absorbs water, and that under no circumstances should such ‘B’X’ insulation be used to conduct said electricity into said room and its use about said machine; that notwithstanding said knowledge, said defendants selfishly and willfully neglected and refused to install lead insulation which is a nonabsorbent of water and which .is the only proper insulation to be used in said picking room.” The injury to and death of said Isabel Duncan was “an event which should have been foreseen and anticipated” by the defendants, “and could have been easily guarded against and would not have occurred had the defendants complied with the provisions of said ordinance, or had installed said machine in a proper manner and had kept it properly grounded, and had used service wires that were properly insulated, and had taken usual and ordinary means for the proper protection of the said Isabel Duncan while operating the said machine.”-

Allegations substantially the same as those that have been recited, are repeated a number of times in the petition.

The general principles or purposes upon which workmen’s compensation acts rest are so well recognized as to require no elaboration' here. It is important, however, to bear them in mind in any approach to a question such as the one here presented. These acts are largely the outgrowth of modern industrial life. They give recognition to a broad social obligation, in furtherance of sound public policy. The public has come to realize that in many cases an injured employee engaged in a hazardous employment will be unable to establish actionable negligence on the part of the employer, but that it is unjust to deny relief to the employee on that account. For this and similar reasons, workmen’s compensation acts have shifted from the employee to the industry and indirectly to the general public certain burdens incidental to modern industrial operations (71 C. J. 242-249). Compensation is thus provided for injuries by accident arising out of and in the course of the employment, regardless of any showing of negligence on the part of the employer. On the other hand, the amount of compensation so provided is in many cases substantially less than might be secured by the injured employee in a common-law action, where the employer’s negligence is established. There is thus a sort of balancing of benefits in the common interest. Some employees may receive less compensation for injuries received than they would have been able to receive in a common-law action, while many other employees will receive benefits which they otherwise would not be able to receive because of inability to establish the employer’s negligence. In harmony with this general principle, the negligence of the employer is not a matter at issue in a workmen’s compensation case. Furthermore, it is provided in our statute and in such statutes generally that it shall not be a defense to the employer that the employee assumed the risk of the hazard resulting in the injury, that the injury or death was caused by the want of due care by a fellow servant or that the employee was guilty of contributory negligence (G. S. 1935, 44-544).

Our workmen’s compensation act (G. S. 1935, 44-501 to 44-565, ch. 44, art. 5, as amended) thus establishes a broad system covering all injuries by accident within its purview. And the act specifically provides that “save as herein provided no such employer shall be liable for any injury for which compensation is recoverable under this act” (G. S. 1935, 44-501). Consonant with this specific provision and in harmony with the whole purpose and tenor of the-act, we have repeatedly held that “the workmen’s compensation act establishes its own procedure and furnishes a remedy which is substantial, complete and exclusive, from the inception of the claim to final judgment thereon” (Taylor v. Taylor, 156 Kan. 763, syl. ¶ 1, 137 P. 2d 147; see, also, cases cited in late case of Hoffman v. Cudahy Packing Co., 161 Kan. 345,166 P. 2d 613).

Was the injury resulting in the death of Isabel Duncan compensable under the act? It is conceded that the employer was under the act and that the employee had not elected not to come under the act. Clearly the injury occurred “in the course of” the employment. It occurred directly in connection with the work to which she had been assigned in operating the machine, and we cannot say it was not also one “arising out of” the employment.

Appellant urges, however, that while the injury may have been an injury “by accident” as far as the employee was concerned, it was not in reality an “accident” as far as the employer was concerned, being readily foreseeable' by him, in the light of the preventable peril to the. employee which he knew existed, but of whose existence the employee had no knowledge or warning. We find no support in the act or in the authorities to support this restricted definition of “accident.” The word “accident” has been frequently defined in our cases (Echord v. Rush, 124 Kan. 521, 261 Pac. 820; Gilliland v. Cement Co., 104 Kan. 771,180 Pac. 793; Barker v. Shell Petroleum Co., 132 Kan. 776, 297 Pac. 418; Kearnes v. Reed, 136 Kan. 36,12 P. 2d 820; McMillan v. Kansas Power & Light Co., 157 Kan. 385, 139 P. 2d 854). It has been said that the necessary elements of an accident are: (1) undesigned; (2) sudden; (3) unexpected; (4) usually of an afflictive or unfortunate character; (5) often accompanied by a manifestation of force; and (6) referrable to a definite time, place and circumstance. The injury here clearly falls within the definition. It is stated in 71 C. J. 571 that in determining the statutory meaning of the word “accident” as used in workmen’s compensation laws “it is the expectation, intention, or design of the workman that is to be regarded.” In Gilliland v. Cement Co., supra, it was said:

“The word ‘undesigned’ must not be taken too literally in this connection, because a person may suffer injury accidental to him, under circumstances which include the design of another. The same warning may be extended regarding other elements of the definition.” (Italics supplied.) (p. 773.)

Furthermore, it should be noted that the plaintiff did not allege that the employer intended to injure the employee or that he knew that an injury to an employee was certain to result, or that any of the defendants harbored any ill will 'toward her.

Whether the facts alleged in the petition show negligence only or whether they show wantonness on the part of the employer may be debatable. But even if the acts or conduct alleged do' show wantonness, we find no authority either in the statute or in our decisions construing the statute that would justify us in saying that the injury was not compensable under the workmen’s compensation act. Considering the whole subject broadly, the legislature has made certain exceptions such as agricultural pursuits (G. S. 1935, 44-505), interstate commerce (G. S. 1935, 44-506) and others, but has not included “willful misconduct” or “wantonness” of the employer among the exceptions. Nor is there any distinction between “gross negligence” and any other degree of negligence, as far as applicability of the act is concerned (see 71 C. J. 1485). If so compensable, an action at common law will not lie. To hold otherwise would open a by-pass around the act and permit attempted recovery in common-law actions which the act was intended to supersede. If the plaintiff here had established the same facts in a proceeding to secure compensation under the act, can there be any doubt that he would have been entitled to an award? If so entitled, it follows, under our decisions, that such relief is exclusive.

The workmen’s compensation acts of some of the states — such as those of California, Massachusetts and Ohio — provide for increased compensation in the case of “willful misconduct” on the part of the employer. Decisions under such statutes are not in point here since our statute contains no such provision. But the fact that such a provision is omitted from our statute is in itself an indication that the legislature did not intend when it enacted the workmen’s compensation act, broad in its scope and provisions, to permit the injection of the question of wantonness or of willful misconduct of the employer into cases otherwise under the act.

Appellant stresses the case of Boek v. Wong Hing, 180 Minn. 470, 231 N. W. 233, 72 A. L. R. 108, in which the plaintiff was permitted to maintain a common-law action for damages notwithstanding the fact that defendant was operating under the act. In that case the defendant had intentionally struck the plaintiff, inflicting serious injury. In that case it was said (pp. 2 and 3, appellant’s brief):

“No ease has been cited where it has been held that one who wilfully assaults and injures a workman while in the course of his employment, be he an employee, employer, or a stranger, when sued for the tort*can successfully interpose as a defense that the plaintiff and his employer are under the Workmen’s Compensation Act and his sole remedy is thereunder. . . . An employer who intentionally and maliciously inflicts bodily injuries on his servant should occupy no better position than would a third party not under a Compensation Act and should not be heard to say, when sued at law for damages, either that the injury was accidental or that it arose out of the employment.”

(p. 471.)

We find no analogy between that case and the one before us. It is clear that injury inflicted upon an employee by an employer’s assault is not an injury arising by accident out of and in the course of the employment. No such situation exists in this cáse. It is not alleged that the employer intentionally injured the employee. There are many cases similar to the Minnesota case involving assault or other acts by the employer clearly unconnected with the employment, but no purpose would be served by reviewing them since the distinction between these cases and the instant one is obvious.

Considerable analogy to the case here is to be found in cases involving failure of the employer to comply with laws or regulations as to installation of safety appliances or proper safeguards, especially in the case of dangerous machinery. The general rule is that in the absence of specific statutory provision therefor,. such failure does not affect the rule as to exclusive remedy (71 C. J. 1484, 1485)i Our statute contains no such provision.

It follows from what has been said that the demurrer was properly sustained.

The judgment is affirmed.