Ward v. City of Norton

86 Kan. 906 | Kan. | 1912

Lead Opinion

The opinion of the court was delivered by ■

Smith, J.:

The appellant brought this action against the city of Norton to recover damages which he had sustained by having his arm caught in the gearing connected with a gasoline engine which hé, as an employee of the city, was using to pump water to the city waterworks. A demurrer was filed to his petition and sustained by the court. To reverse this ruling this appeal is brought.

It is conceded by the appellee that the petition states facts sufficient to constitute a cause of action in all respects but one, viz.: that the petition does not state facts which show that the place or establishment where appellant was working is such as is contemplated by-section 4682 of the General Statutes -of 1-909. On the other hand, the appellant admits that if the appellee was not bound to guard its machinery under the provisions of that section he was not entitled to recover and the demurrer was properly sustained.

Section 4682, supra, defining the establishments or places to which the act applies, reads:

“Manufacturing establishments, as those words are used in this act, shall mean and include all smelters, oil refineries, cement works, mills of every kind, machine and repair shops, and, in addition to the foregoing, any other kind or character of manufacturing establishment, of any nature or description whatsoever, wherein any natural products or other articles or materials of any kind, in a raw or unfinished or incomplete state or condition, are converted into a new or improved or •different form.”

The paragraph of the petition by which it was intended to bring the case within that section reads:

“That in connection with said gasoline engine owned .and used by said defendant to pump said water from said wells, and to force it through pipes to said pumping plant, there is certain machinery consisting of belts, pulleys and cog wheels. That connected therewith are four sets of cog wheels, each consisting of a large cog wheel about three feet in diameter, the cogs of which are geared with a smaller cog wheel about -eight inches in diameter. That the smaller cog wheel receives its power through a belt and shaft, which causes said cog wheel to revolve with great rapidity. That the same is geared with the larger cog wheels and gives unto them motion. The cogs of the small and large cog wheel fit "together closely.”

It is conceded, then, that the only question presented is whether or not the appellant was employed in a manufacturing establishment or in a mill within the meaning of the act. In defining what comes within the provisions of this section (Gen. Stat. 1909, §4682), in Caspar v. Lewin, 82 Kan. 604, 109 Pac. 657, it was •said:

“It first, includes by name a number of establishments, some of which may not be popularly known or regarded as manufactories — smelters, oil refineries, cement works, mills of every kind, machine shops and repair shops. By force of the definition these all become manufacturing establishments. Then all other ■manufacturing establishments were included by the clause, ‘and in addition to the foregoing any other kind.. or character of manufacturing establishment of any nature' or description whatsoever.’ Then, in order that, the full scope of the act might not be mistaken, the-broadest possible definition of a manufactory was. added — ‘[a place] wherein any natural products or other articles or materials of any kind, in a raw or unfinished or incomplete state or condition, are converted into a new or improved or different form.’ . . ., The process of manufacturing may be very complicated or it may be simple in the extreme. There are primary and secondary stages, but the legislature has said that all establishments for the modification of natural objects to adapt them to human needs are embraced in. the act.” (pp. 609, 610.)

It is contended that the water that was pumped was, in a sense, manufactured, for the reason that it was-brought within control for the use of the inhabitants of' the.city. It is not even contended that it was modified in any way to adapt it to human needs. • The water was-in no sense manufactured or changed in any way. It was simply conveyed from one elevation to another or from one place to another, and hence it can not be said' that it was in any way manufactured or that the establishment or machinery which was employed in convéy-ing it was a manufacturing establishment. It is suggested, however, that the machinery and power used in-moving the water may be regarded as a mill within the-meaning of the section. Several definitions of the word' “mill” are given in Webster’s New International Dictionary. The fourth definition is applicable to the use of the word as made in section 4682 of the General Statutes of 1909. It reads:

“A common name for various machines which produce a manufactured product, or change the form of a raw material by the continuous repetition of some-simple actions; as, a sawmill, a stamp mill; etc.”

The machinery and plant in question certainly can not be regarded' as a mill under this definition. It will be observed that this definition would include a mill as-one of the appliances in a factory, or a machine used therein which produces a manufactured product or changes the form of raw material, etc.; neither of which results is caused by the machine in question, as .alleged in the petition. It is true that there is a machine in common use and well known in commerce called a “windmill” which in operation only elevates water. This kind of a mill was formerly used to con-wert grain into flour or meal, which was a manufacturing process, and the machine now used retains the .name “windmill” only because, like the old grinding mill, it is propelled by the wind. We conclude that the place and machinery described in the petition was neither a manufacturing establishment nor a mill within the meaning of the statute.

The judgment is affirmed.

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Dissenting Opinion

Porter, J.

(dissenting) : I find myself unable to ■concur with the majority. A wise and beneficent law, ■enacted for the purpose of safeguarding the lives and limbs of employees whose duties compel them to work in close proximity to dangerous machinery should receive at the hands of the courts the most liberal interpretation possible, instead of a technical one which defeats the evident purpose of the legislature. The place where the plaintiff received his injury is certainly within the spirit of the law. By a quite strict interpretation of the words “mills” and'“manufacturing establishments” it might be said that a waterworks establishment does not come within the letter of the act. Yet it requires but a slight liberality to include within' the term “mill” a place equipped with machinery for the purpose of pumping water and distributing it to consumers. There are, among other kinds of “mills,” such things as water mills. The statute says “mills of every kind.”- No person who has ever visited a waterworks plant in any of the larger cities of the state and has seen the powerful engines, the ponderoüs drive-wheels, the complicated shafting and other dangerous machinery in operation, would for a moment suppose that the legislature, in adopting the act for the protection of all persons employed or laboring in manufacturing establishments, intended to exclude from the protection of the act persons employed in such places. Whether those who own and operate such establishments are private individuals, private corporations, or public corporations, they owe the same duty to safeguard their employees as do those engaged in the manufacture of plows or any commercial produet. In Caspar v. Lewin, 82 Kan. 604, 109 Pac. 657, we held that the words “manufacturing establishment” in this act applied to a place where scrap iron is broken up or cut up into various lengths for convenience in shipping or in handling at mills where the scrap is purchased. It is true that the water which finally reaches the consumer is nothing more than water — the same water that was pumped from the river or the wells. But, as every one knows, something is required to be done with it before it is ready for distribution and consumption. It is first pumped into great réservoirs or settling basins, and usually it is treated chemically for the purpose of causing the precipitation of mud or sand. In most instances it is filtered in order to reduce the percentage of bacteria it contains; and finally, when fit, and sometimes when unfit, for use, it is distributed to the public and to private consumers. All this process seems to require more of a change in the form of a raw material than the mere cutting of scrap iron into shorter lengths for convenience in handling. A bottling works where natural spring water is put into' bottles and casks, without any other change in the water itself, would be a manufacturing establishment within the meaning of the act as construed in Caspar v. Lewin, supra. An establishment for pumping or "storing natural gas and distributing it to consumers, with no other change in the natural state of the gas than to regulate its force, would likewise, in my opinion, fall within the definition given to the term by the legislature. The evident purpose of the 'legislature was to extend protection to employees in every conceivable kind of a manufacturing establishment. In attempting to make its terms broad, they omitted specific mention of such establishments as waterworks and gas plants. I think it should be held that the place where the plaintiff was injured falls within both the legislative definition of a mill and that of a manufacturing establishment, but more clearly within the latter.

Johnston, C. J., and Burch, J., concur in the dissenting opinion.