Swift v. Kelso Feed Co.

168 P.2d 512, 161 Kan. 383, 1946 Kan. LEXIS 247

• Court: Supreme Court of Kansas
• Decided: May 4, 1946
• Docket: No. 36,530
• Status: Published

Opinions

The opinion of the court was delivered by

Harvey, C.. J.:

This was a workmen’s compensation case. There were two respondents; Ted Johnson, who was claimant’s employer. He did not operate under the workmen’s compensation act, hence' no award waa made against him. The other respondent was the Kelso Feed Company, Inc., and its insurance carrier. It operated under'the workmen’s compensation act. The court made an award for claimant against the feed company and its insurance carrier and.they have appealed.

No question is raised about the amount of the award if claimant is entitled to any award against the feed company. The legal question involved is the construction of our statute (G. S. 1935, 44-503) as applied to the facts, It was stipulated that the relation of employer and employee existed between Johnson and claimant; that plaintiff received personal injury by accident arising out of and in the course of his employment; that respondents had due notice of the injury, and that the claim- for compensation was made in time. Respecting the business of the feed company and the relation of Johnson and the claimant to it the court found:

“That said Kelso Feed Company, Inc., is engaged in the business of selling at wholesale, hay, grains and feeds, particularly cattle feed and poultry feed; that said merchandise is sold at a nondelivery price, and at a price which includes delivery, and said prices are paid to the Kelso Feed Company; that when merchandise is sold for a delivery price, the Kelso Feed Company, Inc., collects the entire price, including costs of the delivery, which is added on to the sale price.

“That prior to 1943, the Kelso Feed Company, Inc., owned its own fleet of trucks and delivered its own merchandise by means of said trucks, manned by its own employees; that in 1943 it made an arrangement with the respondent Ted Johnson, whereby the latter furnished his own trucks and his own employees for the delivery of such merchandise for the Kelso Feed Company, Inc., and that a verbal arrangement was made between the said respondents whereby the said Ted Johnson was paid by the said Kelso Feed Company, Inc., so much per ton for the delivery in Kansas City of the merchandise which Kelso Feed Company, Inc., had sold on a delivery price;

. . . that said Ted Johnson kept his trucks in the garages owned by the Kelso Feed Company, Inc., without charge. . . .

“That the Kelso Feed Company, Inc., is liable to the claimant for workmen’s compensation under the provisions of Section 44-503, G. S. 1935, for the reason that Ted Johnson, in making the deliveries of merchandise sold by the respondent Kelso Feed Company, Inc., at a delivery price, had undertaken to execute work which was a part of the business of the Kelso Feed Company, Inc., and which the Kelso Feed Company, Inc., had contracted to perform.

“That the claimant met with personal injuries by accident on or about the 27th day of October, 1944, when he fell from the top of a load of hay which was being delivered by Ted Johnson for the Kelso Feed Company, Inc., at the docks of Armour and Company at Kansas City, Kansas, which caused the claimant to fall to the ground about fifteen feet and caused him to be rendered unconscious and required him to be hospitalized. . . .”

The remainder of the court’s findings pertains to the extent of claimant’s injury, his wages, and to the award, and need not be further noticed, since no question is raised concerning them.

The claimant’s case rests upon that portion of our statute (G. S. 1935, 44-503) which reads:

“(a) 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 this 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; and where compensation is claimed from or proceedings are taken against the principal, then in the application of this act, references to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed.”

Counsel for appellants contend that Johnson was an independent contractor, and in support thereof rely heavily upon the opinion of this court in Lehman v. Grace Oil Co., 151 Kan. 145, 98 P. 2d 430, and the authorities cited therein. In the Lehman case it was held:

“In order to render a person liable as a principal for compensation to a workman under G. S. 1935, 44-503 (a), it is necessary that the principal shall have undertaken to execute work which is a part of his trade or business or that he shall have contracted to perform work for another.” (Syl. fl 2.)

And the opinion makes it clear that the real distinction is whether the contractor (or subcontractor) was undertaking to do work which was a part of the trade or business of his principal. There it was held that the moving of a house was not a part of the trade or business of an oil company operating a lease, hence that it was not liable. Here the court found that the delivery of feed by the feed company, at a price which included expense of delivery, was a part of the business of the feed company. Appellants do not contend that the finding of the trial court was not supported by substantial, competent evidence, hence it is clear that the ultimate holding in the Lehman case is not controlling here. The Lehman case, and practically all of our earlier decisions involving the statute in question, were examined in our more recent case of Bailey v. Mosby Hotel Co., 160 Kan. 258, 160 P. 2d 701, where again the test applied was whether the work contracted to be done was a part of the trade or business of the principal. In view of the thorough analysis of our earlier decisions made in the Bailey case and the conclusion there reached we déem it unnecessary to again reexamine them. We are satisfied with the interpretation of the statute there made and that the same is controlling here.

Appellants cite subdivision (d) of G. S. 1935, 44-503, and contend it is a provision which must be satisfied before plaintiff can recover. This subdivision reads:

“(d) This section shall not apply to any case where the accident occurred elsewhere than on, in' or about the premises on which the principal has undertaken to execute work or which are otherwise under his control or management, or on, in of about the execution of such work under his control or management.” ' .

Under the facts found by the trial court we think subdivision (d) does not relieve appellants from liability. The business of the feed company was not only selling but was delivering feed. In this case the place where iff'was delivering feed was the premises of Armour & Co., a place where it had “undertaken to execute work” which was a part of its trade or business.

Counsel for appellants attempt to draw some analogy of the statute in question and R. S. 1923, 44-505, prior to its amendment in 1927, as it how appears in G. S. 1935, 44-505. The earlier section, R. S. 1923,-'44-*505, was worded differently than the one'Under consideration and applied to a different' matter. The attempted analogy is not impressive.. We have considered all that was said by counsel on this point and. think it would be neither helpful to appellants nor enlightening to the bar to discuss the matter in detail. We'áre dealing hére with the statute before us.. If the court’s findings sustain an'award under it for claimant against the feed company, as we hold, we need not bother with the analogy suggested.

We find no error in the record. The judgment of the trial court is affirmed.