*1 Appellant.* Justus, Dillard, Respondent, Elmer Nelson v. D. February City Appeals. Court of Kansas

.363 *2 * 2836, p. 4CJ, Error, section Juris-Cyc. Appeal and Corpus References: 691, 33; 445, 322, p. section Servant, 39CJ, n. 3; section 858, and Master n. 97; 1173, 71; 1354, p. 700, section 54; 902, p. n. section p. 574, n. section n. 535, 30Cyc, p. Partnership, 1315, 81; 1517, p. p. n. section n. 15 45,..n..24. —CJ, 36, p. Acts, 50; section Workmen’s n. ( n respondent. Carr U. Turner J. for

M. I).

John appellant. For Wendor/f injuries caused damages personal 0.—Action for FRANK judgment verdict and a explosion dynamite. an Plaintiff recovered of appealed. $47JO in the sunt of and defendant gen- denies answer against petition. The complaint No is made affirmatively pleads that allegations and then erally petition, of the jurisdiction to hear and county had no court of Jackson the circuit if plaintiff’s injuries, any, cause, determine this the reason where, time, an act of at said Kansas, received in títate of were Compensa- “Workmen’s the, Legislature State, known of said Act,” effect, and whatever tion still in full force was and entitled, might he plaintiff damages compensation, any, if to which Compensation Act governed Workmen’s are controlled provi- pleads of the terms the State of Kansas. answer also The will in course of the Compensation Art, sions of we notice which opinion. ivas owner of conducted

The evidence that defendant was sole City, Missouri, a under the name of plumbing- in Kansas business Company. co-partnership of Jus- Plumbing was a Justus There also en- Schenck, Schenck, & E. A. composed tus of and one Kansas, gaged City, in in Kansas under plumbing- business style and firm of Justus & Schenck. name

Appellant partner- employ in plaintiff contends that was plaintiff ship injured, of Justus & he was while Schenck at the time which employed by Plumbing Company claims that was Justus defendant was are immaterial be- the sole owner. These contentions plaintiff in either situation defendant: would be liable event Oye. made a ease. 535.] [30

On January 13, .1925, installing engaged pi unib- defendant was ing fixtures in street, City, located in Kansas house on 39th Kansas. Plaintiff was in employ of defendant as a common laborer and digging- was a ditch or this to the from house trench water con- pipe order purpose laying a therein

main for tire water main. water plumbing in said house with the nect the fixtures blasting dynamite was used for ground underlaid with was rook job. Olen working on the rock out of the ditch. Four were house to Stout, working 1he second floor of the plumber,- Wonderling being dug. Plaintiff and one Willis which the ditch was purpose ditch, working drilling in the rock for the holes dynamite placing rock out of the ditch. therein in order to blast the charge tylexander One foreman Robinson defendant’s shooting directing digging the work ditch. lie looked after the dynamite. Wonderling anything do of the had Neither nor handling with dynamite. or use of the open burning morning question, On the fire working. near the ditch built for This fire was dyna- purpose warming brought drills. Defendant some mite, caps Robinson, and fuse who to the works and delivered them to charge put dynamite was in him of the work and told not to *3 the fire. placed dynamite

The weather was cold and Robinson the near the fire, said, keep freezing. as he to asked him if it it from Defendant necessary put were replied to it it far there. Robinson that was enough away safe; from fire the the to be that weather wrascold it would quickly. more, freeze nothing Defendant a few away. minutes drove

Defendant experienced dynamite testified that he was of the use endanger that it would safety premises if the of the men the piece a dynamite was'put of fuse a cap put on stick on the of fuse whether it laid was fire close to the or not.

Robinson arranged thawing the fire for dynamite, out the Wonderling, employee defendant, put some thin hoards fire and larger. it made present Robinson was knew these boards placed were objection on the fire but made no to it. was The weather cold and the blowing. wind fire, Robinson sat down the cut pieces the fuse into proper length put caps use, on two or three pieces of the fuse dropped them on the about three or four feet from the fire, dynamite on the east side. The was about four and one-half feet put south of the fire. Robinson had some of the caps in the box with dynamite. the The dynamite exploded evidence jar, shows that is cap, and if a dynamite not attached to explodes, jar the from explosion, if of sufficient volume, explode will dynamite. caps tying The about three and one-half from dynamite. feet Robinson an expert in dynamite. use of sixty He testified that there pounds pressure to cap, eight one and if six caps exploded at a dis- tance of four feet from the the explosion explode would dynamite. eight gave Iiobinson seven testimony Üefendant that There dynamite. testified Robinson also gave him caps at the time it have been heat caps explode and must would cause heat explosion. caused dynamite placed had been that the not know Plaintiff did or six feet working, was five from he was in which ditch The fire. get drilling a hole and started out of just lie finished fire. had explosion occurred. ditch when the testified, Plaintiff you any explosion

“Q. thing knew of about take the first What’s something morning? When up A. I came I saw out there said, out,” and up “Look at that time the spit from fuse and I any know from thing off, didn’t more that time. went you you “Q. anything? when next knew In Where were A. Bell ’’ Hospital. Plaintiff, injured explosion. seriously' point No is made injuries as to the extent of his or the size of verdict. court Appellant’s first contention is that of action is governed by provisions the Workmen's Act of Kansas, reason, the State and for this the trial juris- court had no diction hear and determine it. parts pertinent of said act here are as follows: only shall apply employment

“This act the course em- ployers on, trade or business in or about . . building. .

“. . act, therefore, only This apply shall employers by whom five employed continuously or more workmen been have more than a month at the time the accident.” “Building any work means work in erection, construction, ex-

tension, decorating, altering, repair demolishing any building *4 ” apertinence. or structural proceedings provided “No action or for in this act shall brought be or maintained outside of the State of Kansas.” provides every Said act also employer every employee provisions entitled to come within the of said act shall presumed be to have done so \inless a written declaration to the contrary filed with Secretary the of the State. provisions After the of this act were introduced in by evidence defendant, plaintiff introduced in opinions evidence two of the Su preme Court of the State of construing Kansas act, Hicks v. & Swift Company, 101 760, Kan. and Stover v. al., Davis et 110 Kan. In the Hicks ease, plaintiff supra, was employed by defendant drive a truck for delivery the of meat from the packing house of de- fendant, in Kansas City, Kansas, to its customers in city and in Kansas City, injured Missouri. by He was a box of falling meat on. him while he attempting delivery make a in Kansas City, Mis-

86fí oí Supreme Court The. parking house. miles Hie souri, from severa! by governed not. action vas cause of that the

Kansas held opinion the court Act. course the In Workmen’s the said: proceed- in this plaintiff be had the recovery can “Therefore, no packing factory injured the “on, in about” ing he unless locality one of “about” is That word house the defendant. in a has been determined association or connection and not mere said: it. ease, recent .where was trainmen anomaly distinguishing' between is no “There about, employees working- railroad, a railroad

yardmen building they from working are as secure office a distant railroading of a employees as bank. peculiar hazards incident to employment course his factory drayman when Likewise, a extraordinary exposed is factory at no more than elsewhere work carried on there than from nature of the risk or condition to em- grocer’s Consequently extended, act not drayman. a employer’s generally, or ployment busiuess where- in the course of the designated places conducted, employer’s business at over ‘about,’ applied mine, the word “The concludes that court locality compensation may tiie accident which re fixes he that, the must covered, proximity accident occur such close lo danger necessarily the mine that it. is within the zone created those which peculiar operat hazards to workmen inhere the business of the, zone, If occur accident outside ing mine. distance very very mine, far, whether near or from the immaterial.” Co., pp. 207, 214, ante, Bevard Coal v. 215.] [ Davis, plaintiff in the supra, employ In v. Stover of defendant employees together drilling with other he three working injury While an oil so received an well. from sought to recover died, compensation which his widow under Compensation Act. The court the Workmen’s denied recovery on defendant, did not have five or more workmen em- continuously than a at for more month ployed time of the accidenL disposing court said: In of the case the bring employment seeks to “The within the terms of bo; counting casing may crew of five men: the statute This casing reasons. crew worked but days, -for two throe clone Novem- December and tlie casing November ber crew was no1 .” . employed by defendants Dorado, city were taken from workmen “The defendants’ of El *5 resided, well, of the they to the site

where from the well to trips per who two city, day, a taxicab driver made one at noon midnight. plaintiff insists and one at the taxicab driver of the defendants’ In should counted one workmen. its relation

867 1917, quoted of the statute of application controversy, present to the employer’s busi in course of the employment above, limited to embracing construction of engineering work, on, in about ness or exposed to are workmen the act well. Workmen affected oil Co., 101 locality (Bevard Coal Kan. v. peculiar hazards of the 905), and 760, 168 Pac. Co.,& 101 165 v. 657; Pac. Hicks Swift Kan. bring an em necessary ascertaining the of workmen in number except counted none are to be statute, within the ployer’s business Winfield, locality (Udey City of the v. of exposed to the hazards those El 43). quite It clear the Dorado taxicab Kan. 155 Pac. seems engineer transportation in business, not driver ing well was located.” work on the farm where the only at had bar that defendant four

The evidence the ease shows building ques- work on, in and about where the employed men being tion was done. Compensation provides 44,507

Section Act act shall only employers or apply whom five more workmen been have employed continuously more than one month at the time 44,505 apply only to provides accident. Section the act shall employment employers on, in the of the in or course trade or business . building, about . etc. only applies employers by

If the act whom or more five workmen applies only employment if it employed, are the course of employers on, trade or business or about a building, etc., the irresistible conclusion is that five men employed must be working on, building in or place about the or other where the accident We, therefore, oceurrs. hold that action is governed by Workmen’s Act of the Kan- State of sas five or employed by because more men were not on, in injured. about where

Appellant, however, contends that the court erred rejecting his proof, offer of that defendant for more than prior 'one month plaintiff’s injuries employment had in his more than five' con- tinuously engaged in that trade- business in Kansas City, Kansas. objected

This offer was to on the that it did not limit the employment five or more men in and about the work plain- injured. tiff Avas objection

At the time this made, defendant’s counsel stated that purpose it was not his to so limit the evidence offered. For rea- objection son proof the offer was properly sustained. It is contended that Robinson Avaseither an independent contractor fellow-servant, reasons, and for these defendant was the, not liable negligence, if any, placing his.act caps and fuse the fire.

An independent contractor has been defined as one who renders occupation service in the course of an representing the avüÍ of his *6 308 work, his as means and not to the result only as lo employer tUui 177 Company, Car [Gayle v. Missouri accomplished. it is which and cases 987, 992, cited.] 76 S. W. 427, Mo. men to show the Robinson he instructed that testified Defendant powder to,load holes, put proper the amount drill, the and

where to as properly, and to shoot were covered that the trenches see them, Robinson; that he obey orders of to expert; were that was what to purpose; he to direct the men that for that was there them; plaintiff he that was under told they do what were do do and Robinson; employed by was the hour that Robinson direction drill, drill, men where to how and cío instruct and he shooting'. he charge, plaintiff the dime took that at and testified Robinson there; working that directed them to drill Wonderling he were many deep them; told them to drill that he how and how the holes they drill, followed his instructions. holes to told him testified that the defendant that Robinson was a Plaintiff obey (plaintiff) he was to his foreman, orders. Robinson employed any the trench and excavate left free use it. accomplishing employed saw in Defendant he fit the labor- means ers, material with which do work, employed furnished superintend it, paid the hour to as Robinson instructed him plaintiff that to his duties. Defendant told Robinson was foreman charge obeyed. work and must be his orders law, light facts, the not, In the of these court could as a matter of say independent was an question that Robinson contractor. That jury proper one for the to determine under instructions. conclusively can regarded Neither as a fellow-servant of plaintiff. Where, here, a servant is clothed authority with to direct performance control other servants in the work, of the master’s others, he is not felloAV-servantof the ais vice-principal. [State Ellison, 536, ex Duvall v. 283 223 rel. Mo. S. W. 651.] Wonderling plaintiff. worked the ditch with Contention is made injuries if plaintiff’s Wonderling caused placing too fire, much Wonderling wood then was either the fellow-servant plaintiff acting or was scope outside of his authority putting .the wood fire and neither event is liable. alleges petition negligently carelessly failed to exercise due care furnish reasonably with a safe perform which to his This work. duty defendant’s,primary which delegate. he could not. experienced Defendant was handling dynamite. present use of lie was on the premises, saw dyna- mite, placed caps fuse and near the fire and permitted them to re- main premises there. If the reasonably were not safe on account of presence of fire, defendant was liable with- regard out to whether the unsafe condition arose from the act of

360 a fel- either of them was whether Wonderling, or Robinson or either 283 Mo. Ellison, Duvall rel. v. ex plaintiff. low-servant of [State 38; Co., 303 Planing Mill v. Crescent Mo. Wuellner 651; S. W. Louis 405; St. 276 S. W. House v. Grocery Co., Kroeger v. Bender Co., 270 S. W. 135.] The criticism is erroneous. ,instruction No.

It is claimed that *7 that on the contention against instruction is bottomed this leveled caps close,proxim- in placing dynamite, fuse and Robinson’s act until to remain there ity fire, permitting them open contractor, independent of an exploded, the act dynamite, was either liable. "We plaintiff, which defendant was not fellow-servant conclusively could that. Robinson not be have heretofore determined independent fellow-servant regarded as an contractor either .plaintiff. Appellant says No. 3 is criticized. Plaintiff’s brief instruction may proposition that be correct as abstract of law instruction .this required The but is not warranted the evidence. instruction jury ordinary to find that defendant "knew or the exercise care dangerous and could known of the unsafe condition .have any, if in time removed premises, fuse, dynamite to have said from, any, away fire, if etc. caps, dispute is that there no contention is but that when defendant

gave caps Robinson, fuse .and he told him dynamite away fire, near the knowing and went without placed, it knowing had been so danger without there any an, explosion.

There is no merit this reasons', (1) contention for two because placing dynamite Robinson’s act in fire, near the act of (2) defendant, and there is evidence defendant knew it was so premises. placed disputes before he left the Defendant fact, this -weigh conflicting we cannot evidence. assigned is Error the refusal of requested defendant’s instruc- tion No. 4. This instruction was drawn on theory Work- that the Compensation

men’s Act of the governed plaintiff’s State of Kansas It action. recited that if defendant had in employ his five or more continuously for more than prior one month injury, recover, he could not in determining whether or not five or more men were so employed, it necessary Avasnot that such inen employed at the building digging same trench, the same but it Avas if sufficient employees five or more Avere in the general trade or business carried on the State of Kan- sas prior more than one month plaintiff’s injury. What already we have said about the applicability of the Work- men’s Act case, ruling necessitates this conten- : against tion appellant. predicated

Defendant's evidence con- demurrer to tlie properly tentions heretofore discussed and ivas overruled. find record,

We no error and therefore reversible affirm the judgment. C., Williams, concurs. PER foregoing opinion by hereby CURIAM:—The Frank, G.,

adopted opinion except as the concur, court. All Trimble, J., P. absent. Plating Bishop, Corpora

Len Respondent, v. Musick Works, Appellant.* (2d) 3 S. tion, W. *8 Appeals. Opinion St. Louis Court of filed March