199 P.2d 796 | Kan. | 1948
The opinion of the court was delivered by
This was a common-law action for damages for personal injuries alleged to have resulted from the negligence of defendants. The appeal is from an order of the court overruling the motion of the defendant, L. C. Smitherman, for judgment on the pleadings. Although notified of the setting of this case and its submission to the court upon the abstract, brief and argument of appellant, counsel for appellee have made no appearance in this court.
The pleadings may be summarized as follows: The petition al
The defendant L. C. Smitherman filed a separate answer in which he alleged that at all times mentioned in the petition he had on file with the workmen’s compensation commission an election to come within the provisions of the workmen’s compensation law, a copy of which was attached to his answer; that the work in which he was engaged at the time of plaintiff’s injury was engineering work, as that term is used in G. S. 1935, 44-508, and that by reason thereof any cause of action which plaintiff might have against this defendant arising out of the collision mentioned in the petition was one arising under the workmen’s compensation act, and that the court had no jurisdiction of the subject matter of plaintiff’s action against
To this answer plaintiff filed a reply in which it was said that: “He admits that the defendant, L. C. Smitherman, on or about March 14, 1944, filed with the commissioner of workmen’s compensation of the state of Kansas his election to come within the provisions of the workmen’s compensation law of the state of Kansas, and that on the 14th day of June, 1945, said election was in full force and effect.” The reply contains a general denial to other allegations of the answer and specifically denied that L. C. Smitherman was engaged in engineering work on June 14, 1945.
The motion of L. C. Smitherman for judgment on the pleadings was argued to the court, taken under advisement and denied. The appeal is from that ruling.
We think appellant’s motion for judgment should have been sustained. The work to be done, as outlined in plaintiff’s petition, was engineering work as defined by our statute (G. S. 1935, 44-508 [gr]). Irrespective of that, appellant was privileged to file an election to come under the workmen’s compensation act (G. S. 1935, 44-505) without regard to the number of his employees. (G. S. 1935, 44-507.) Since plaintiff’s employment commenced from the time he left home the accident resulting in his injury happened in the course of his employment, and there is no suggestion that it did not arise out of the employment. Highway accidents have been held to be compensable when the work of the employee requires use of the highway. (See Kennedy v. Hull & Dillon Packing Co., 130 Kan. 191, 285 Pac. 536; Woods v. Jacob Dold Packing Co., 141 Kan. 363, 41 P. 2d 748, and cases there cited.) Where the injury is compensable under the workmen’s compensation law a common-law action for damages will not lie. (See G. S. 1935, 44-501; Hoffman v. Cudahy Packing Co., 161 Kan. 345, 167 P. 2d 613; Duncan v. Perry Packing Co., 162 Kan. 79, 174 P. 2d 78, and authorities there cited.)
The judgment of the trial court should be reversed with directions to sustain appellant’s motion for judgment on the pleadings. It is so ordered.