*1 40,776 No. Key Appellant, v. Madison, Nettie Respond Clothes, Inc., Work Employers Liability Company, ent, Appellee, Mutual Insurance Carrier, urance Appellee. Ins (318 991) P. 2d Opinion filed December 1957. Patterson, Scott, argued Walter B. cause, Sylvan Fort Bruner and Rondelli, Pittsburg, Charles both of ap- were with him on J. the briefs for pellant. Wilbert, Pittsburg, argued cause, Keller, Paul L. and A. B. and Ran- Pittsburg, Palmer, dall D. appellees. also of were with him on the briefs for delivered court was opinion *2 The trial case. is a workmen’s Schroeder, J.: thereby of denying compensation, an award judgment entered commissioner, affirming ruling the of the workmen’s the claimant appeals. con- and had been Claimant was employee years. operated for about five tinuously so employed factory respondent’s in in sewing making clothing machine the in 7:15 check between located in Fort She was to required Scott. 24,1956, when and 7:30 in On morning. morning January the the home, and a she from a block respondent’s walked to her factory and the away, half It in the snowing. night was had snowed continued, ice and ground snow the to covered with causing snow. Fort Scott. in on Wall Street faces south
Respondent’s factory work, had to claimant way on her to factory In order enter cross Wall claimant to route for proper cross Wall The Street. crosswalk, but claimant crossed on a at the intersection Street was on her January morning Wall Street on crossing After in direction. northwesterly diagonally work on the abutting had cross sidewalk manner she street this the time of Wall Street crossing At factory. south side of the crossing While employee. of another company claimant was bones fell and suffered broken claimant slipped the sidewalk her fall. of other saw She leg employees in her A number hip. bones were set. After hospital a taxi where her taken in was infection deterioration of the bones devel- about three weeks had hospital has not recovered. She been con- and she oped examiner, February before the hearing date of tinuously 1957. factory building adjacent to respondent’s south wall of
The wide, feet 51 inches the curb of the sidewalk which is 11 the wall through wall. door in which employees The street and is the main entrance factory approximately entered factory building the corner of the is situated 20 feet west of recessed corner of the intersection. door is on the northwest Street feet sidewalk. paved 10 inches from Wall brick. some
There was conflict in the testimony concerning exact fell, spot testified that she she had fallen with her hand entrance on the door handle. All other witnesses who saw claimant fall testified that she fallen near curb. The trial fact findings court’s numbered 5 and 6 state: Claimant, boots, proceeded wearing “5. The with another from a southeasterly direction across tire edge street at the north curb and south of the sidewalk she fell. slipped Evidence is clear whether she as her foot stepped street level or walk, when she was down she edge some 3 north of the feet south sidewalk 6 or feet south doorway. “6. There was an of several accumulation inches of snow on the ice including landscape clearing there sidewalk and or other treatment snowing front of the walk in time continued door. at morning.” thereafter. next some The snow was cleared hours at 27, 1956, Pollock,
On W. February president K. *3 dictated a company, sent to claimant. The perti- nent of letter reads: portion this arrangements your help you “P. S. I think we can make some to problems you get completing recovery you financial while are out of hospital. appears probable tile the accident not be that covered will However, compensation you, pay tlie as I told we will for the insurance. hospital expenses coverage. and shield
medical the blue cross blue above hopes might get able this com- I have some that insurance we be to my get pany, lawyer regarding consult but this more detail when a will I chance.” 29,1956, claimant, to
On sent again March Mr. Pollock of portion which reads: pertinent up Patterson, “I to agreement went see Walter signed he showed anme by you, appointing your attorney him as to make a claim on for workmen’s us compensation you . . . apparently taking since legal are this kind of doubt, action, any I had better other you, cease of to form assistance . . . fairly this matter the insurance compen- man seemed to be confident that certainly appears sation not be due case of this nature would ... nothing pending that do further we should this action which bringing. guaranteed Hospital Mercy
Patterson I also is that I would your benefits, care bill in excess of Blue of the Cross Blue Shield take agreement development, terminating this am of I this in view I them. will, expect compensation you course, any your hospitali- of receive cover to applied against any portion costs and forth to of the so be bill which zation pay.” might have otherwise we represents statement substantial foregoing portion The of from the made trial findings summarized court in facts this us, hesitate to say record before we do Upon the action. find- substantial evidence. Other supported findings
such opinion court will progresses. of the trial be indicated as ings in a workmen s appeal court on jurisdiction supreme The limited to determination of case is specifically reviews the fact this court law. As questions questions evidence substantial determine it contains only record whether all the evidence doing, and in so finding, the trial court’s party below. prevailing is reviewed most favorable to light If such is conclusive and finding substantial evidence will appears Co., Airplane (Fitzwater Boeing disturbed on review. 158, 181 Kan. of the rule P. The latest 681.) application 2d Co., is in Wilbeck v. Belt Transportation found Grain 181 Kan. 725; Co.,
313 P. 2d v. Ludowici-Celadon 181 Kan. Murray 313 P. is whether claimant’s for review principal question
The presented course her employment. out Appel- arose injuries comes “on the argues lant within the rule premises” cites cases occurs to an many holding where premises compensable while on it is (Sedlock Mining act. 9; v. Kansas Public Corpora 159 Pac. Service City Pac. 818.) to this question presented for review into brings direct 44-508k, focus provisions of G. S. which reads: ‘arising employment’ “The out as words in the course used in employee occurring this act shall not be construed to include his or after while he the duties of assume employer’s negli- duties, not the cause *4 gence.” employee an where by this case decided most recent The was and in the premises” “off injured Co., This case supra. is v. Ludowci-Celadon Murray is denied respect decision herein with controls directly Murray In the claim injured. claimant was where place home, his fell on way and was on ant, working ceased after he had on both of which sides covering alley ice snow held court there lot for employees. maintained a parking employment, the course of not arise out of and in that the did to the re- not due of his injuries cause where 190
spondent’s negligence, and the respondent had assumed no respon- sibility over or maintain duty free from alley snow ice. Murray distinction is that between the case and this only his there the was on home from here the way work and Corpora claimant was way on her to work. The distin- case was Murray in the guished case. not yet the claimant place where reached
Other cases held that the his this court did employment accident his employment, out of or in course of compensa not arise denied, Harrison v. & thereof Lozier-Broderick tion reason 129, Gordon, 147; 145 2d 158 Kan. P. v. Lozier-Broderick Jones Gordon, 191, & 160 160 Kan. P. 2d 932. Co., 315, Grain v. Southwest 162 176 Abbott Kan.
In the case of from his home to the elevator 2d P. a workman some instructions from his to close employer employer his doors, after the home open grain bin workman had already gone denied for the for sustained on evening, It highway arriving at the before elevator. was there held that provisions statute (G. clear, of the S. unam- 44-508k) are biguous, themselves and complete permit con- judicial do struction. mean They exactly what say, the words “aris- they out of ing and in the course of shall employment” not be'construed include injuries to an employee while he is assume toway employment, duties of his and there nothing to warrant a holding that there are any exceptions plain unequivocal provision. that the
It been said purpose workmens frequently compensation act is burden industry the economic loss workman, to a or dependents, resulting his accidental workman, sustained by the in the course of his only employment, but which of, by, was caused arose out employment. not the purpose of the act that em- ployer respects should in all be an insurer of the employee. The insurer only for those accidental injuries caused or A produced way by employment. some some showing causal connection between the accident is Co., &Oil (Rush Empire Refining required. 34 Kan. P. 542; 2d Hilyard Drilling Lohmann-Johnson 89; Teague v. Boeing Airplane P. P. 2d 220.) *5 liberally shall be construed
The workmen’s intent the real and of the genuine purpose order effectuate But create would interpretation liability lawmakers. not legislature liability
circumstances where declared should attach, where injury arise out employ- does of hazards ment cause where the of the em- injury is ployer’s negligence, interpretation is not liberal but nullification the plain legislative purpose and intent. last resort in and decisions of the courts of other
Textwriters to this extensively parties have been cited jurisdictions by some have recovery in work appeal, jurisdictions expanded men’s cases include received when an em if, case, “going coming,” in such a does not ployee the premises, occur on but in to the proximity close work place and on a road or other the con way contemplated intended and tract being as exclusive means of access to the of work. place Commission, Pub. Serv. 75 W. Va. 83 S. E. (DeConstantin Blair, 1916A,329; 20, 148 and Hills v. R. 182 Mich. N. W. L. A. however,
Kansas, Mining Sedlock v. has not rule. adopted DeCon 159 Pac. though citing approval stantin case from West facts in the em Virginia, involved miner, of the ployee, actually premises on the down mine in a when he received injury. still at bar where she fell the case argues of the em- integral part premises sidewalk was an on this and was entranceway building, the only at ployer far as em- control and as supervision exclusive contrary, Work were concerned. On the Clothes Key ployees work trial found claimant on her the street level when she her foot slipped that she as was not reason thereof she and that walk public on the stepped finding cannot be dis- respondent. premises on the record evidence in the competent is substantial turbed since there it. 44-508k, were G. S. dealing authorities Kansas Many where the facts Airplane supra, Boeing Teague considered in case the Teague par- that in the herein except those similar to were fell, claimant slipped area where parking spot ticular and under the condition, entirely icy of an because fenced There respondent. supervision exclusive control *6 was awarded instant the compensation. respondent In the had no exclusive control over the the sidewalk to south of its public on Wall Street. building contends that was the duty obligation the
respondent maintain the entranceway and the area pertaining thereto either free of ice or snow or use cinders or some other sub- stance to make the safe. area This relates to the negligence. Is 1949, 44-508k, of G. application S. in the case at the bar avoided last reads, clause thereof “the cause of which in- jury is not the employer’s negligence”?
We have been
decision,
cited to no
nor has our research disclosed
any, in which a decision on
negligence
foregoing
the
section
of the statute has been made. Normally workmen’s compensation
is
on
based
the
theory
taxing
industry
the
for the loss sustained
by accidental injury
ato workman
while
such
employed
indus-
try, and compensation is to be paid regardless of the
negligence
the
the
even
fault of
workman.
the
(Welden
Edgar
Co., 129
Zinc
ant’s trial court injuries. point the incorporated fol- journal entry: in its lowing negligence having “As to the in not snow ice cleared sidewalk, prudent that it we observe would have been to have done morning. being public so and done it was the next But sidewalk and re- spondent having nothing being done to cause the condition and further it storm, big they negligent.” of a the middle snow were not
We construe this to be finding respondent was not negli- gent failing remove snow and ice on the public sidewalk at the time and fell. place where claimant For negligence to exist be a duty there must breach thereof before the conduct be- comes actionable. If no duty exists there can be no negligence. presented by Here evidence again record is sufficient to finding made the trial court. The disclosed evidence it had been claimant sustained snowing before during night that it was the time claimant fell and that injury, snowing at it after she fell. snowing
aAs general duty rule there is no side keep public absolute walks free from ice or at all snow times. Where precipitation continuous, is recent or to remove such obstruction as it duty forms cannot be therefrom are imposed, dangers arising life, viewed as the normal hazards of for which no owner or person in possession al., property held et responsible. (Goodman Aplnts., al., v. Corn & Ex. B. T. etCo. 331 Pa. A. 642.) This disposition of the negligence does not require we venture into the contributory negligence of an employee. Whether this court would recognize contributory negligence as a *7 defense we do not here now decide.
Generally, aside from the workmen’s compensation statute here
point,
owner
abutting
property
not liable for injuries
suffered
aby
pedestrian caused
defect in the
by
sidewalk unless
the defect was such as to constitute a nuisance.
(Dixon v. Railway
Co.,
404,
104
548;
Kan.
179 Pac.
687,
Moore v. Winnig, 145 Kan.
372;
66 P.
Jilka,
232,
2d
330;
Pierce v.
163 Kan.
181 P. 2d
and Smith
Krebs,
586,
166 Kan.
Another line of workmen’s compensation somewhat anal ogous, recognizes the increased hazard of a workman reason by Co., to the exposure elements. v. Tole (Taber Landscape 181 Kan. 290; 313 Co., P. v. I.C.U. Const. Murphy 771; Co., P. 2d and Rush v. Empire Oil In & Refining these supra.) elements, cases there is no for liability injury from the as heat, cold, like, or the lightning, cyclone, unless the employment in some can specific way reasonably be said to have increased hazard to such element. workman’s Unless some causal connection is shown between the conditions under which the is required work to be and the performed resulting injury caused such element by cannot injury This excludes an recovery.
there can be no contributing as a be traced fairly from a hazard to which the workman would cause and which comes The causa employment. been from the exposed apart have equally and not common to danger tive must be work peculiar incidental the character of the busi It must be neighborhood. and employee. and not of the relation of independent employer ness O. S. 72 N. E. 2d Be Fireproofing (Walborn v. throughout condition of ice snow prevailing cause of the her Fort Scott at the time claimant fell and sustained vicinity of traveling all foot were the same exposed injuries, persons dangers. respondent as- is that contention next claimant’s claimant for liability full
sumed 27, 1956. February written 29, 1956, March indi- written on as the letter refers claimant worked. As au- for whom type
cating Oil Shelly contention respondent’s thority for the Johnson rec- 172, is cited. In case the 303 P. 2d hospitali- for medical aid and to the claimant obligation ognized to limit such obligation. as result of chose zation to do privileged court there held suffered personal that whether stated so provisions to be determined .compensable who, medical authorizing necessary respondent, sustained, for privately the injury to care hospitalization aid and and instructed claimant his as not industrial adjudicated *8 cost medical care that the of his compensable, insurance hospital plan. under its processed could the court here was not before Clearly, presented the situation there whether written claim question case. The the Johnson last furnished days been filed within med- ical aid. 27, 1956, February that the letter of argues
The claimant cites moral legal obligation, both its employer recognized Brunhoeber, 304 P. Brunhoeber v. the employer, that letter was sufficient to bind argument
of Brünhoeber existed. The case involved moral obligation a only if situation existing out of a factual between divorce and arose has husband and wife that no similarity before presently the court. Liability the workmen’s act compensation is not moral upon obligations imposed where no legal obligation exists. set forth in It clear from the letters previously opinion did not recognize obligation under workmen’s insurance. In the first it was “It said appears that the accident probable will not be covered by compensa- tion insurance.” The second letter further emphasized respondent did regard as one compensable under workmen’s insurance. are employers
Under the required by accident, alleged accident, law to or claimed or report any to any of his employee occurs the course within days knowledge. (G. seven after the receipt S. 1955 Supp., Even who 44-557.) employers have elected not to come under the act are required to these comply provisions. Obviously, a compliance mere statutory requirement of reporting ac- cidents cannot be regarded an admission ?.r by the carrier compensation commissioner has jurisdiction to make a compensation (Krouse Lowden, award. 109 P. 2d 138.) held in Krouse case that filing a report of accident with the commissioner, Kansas workmen’s compensation and furnishing hospital medical and attention to employee did not estop respondent from denying jurisdiction. commissioner’s It was further held that under presented facts there furnishing medical aid constituted waiver of the plea jurisdiction. there recognized of certain holding cases where furnish- medical
ing aid equivalent the payment of compensation, but said they not in point in determining question jurisdic- itself, where, tion from the very beginning the proceeding, the employer jurisdiction denied the of the compensation commissioner.
Sound policy requires that the public voluntary payment of med- ical other benefits expenses by respondent to an who sustained an injury, should never constitute an admission to the detriment liability Such payor. payments are often the result of made as humane impulse on the part and such policy should be encouraged rather than discouraged. Comm., Scholz v. (See, Industrial 267 Wis. 64 N. W. 2d 204.) placed injured “The Good Samaritan upon unfortunate man his own beast, poured wounds, paid wine and oil into his charges his maintenance *9 196 promised give more, generously necessary, upon to He his at the inn. even if so, ages, yet suggested through he, by return. Even the man impliedly poor the conduct, was liable admitted that he for the .
man sustained. . . “ respect any mercy in hold an which no court should ‘It act tending liability. to If court implied a or circumstance admit admission an encourage, stop, injuring hold, to instead of one tend would should so holding, con- be brutal giving It would aid the sufferer. to another Mills, (Biddix humanity.’ .” Rex . . justice trary sense to all E.S. C.N. P. 2d Taylor, Taylor In that the arose denied carrier insurance admitted held, court there employment. course of in the out extent of and the policy insurance the terms reviewing to for an award willing father was mere fact the coverage, jurisdiction not confer son did him favor of his in made against be to make an award. commissioner such compensation upon court recognized district commissioner and Roth but denied an award of compen- one hardship instant sustained by ground sation on After con- fully act. workmen’s not covered presented facts circumstances record all sidering advanced the claimant considered the contentions having thereto, that the judgment we conclude district respect should be denying hereby an award of affirmed. in I part dissenting my- in find (concurring part):
Robb, J. to concur cor- paragraph syllabus self unable 4 of and the responding portion majority opinion I must dissent there- from in view of the commitment of this court of liberal rule of our construction favor of the To employee. my thinking such a broad rule pronounce definitely which would tend inure employer’s benefit is in the affirmative direction from our step opposite liberal construc- tion theory. admittedly presents very This case close question rule my opinion general of law as that stated para- graph syllabus 4 of is too far-reaching circumstances. Otherwise, I concur the majority opinion.