Duncan v. Perry Packing Co.

Hoch, J.

(dissenting): With much that is said in the court’s opinion, which fell to my lot to write, I am in agreement. But being unable to concur in the most important holding in the case, I will state broadly the reasons which impel me to dissent.

At the outset it is well to repeat that since the sole purpose of this appeal is to test the sufficiency of the petition as against demurrer, the plaintiff’s allegations of fact must, here be treated as true. It is not our function to speculate whether the plaintiff would be able to establish the facts alleged or the defendants would be able to refute them.

To narrow the issue, let me say at once that I agree fully with the proposition that the workmen’s compensation act is complete in itself and that the relief or remedies which it provides are exclusive *90as to all injuries “within the purview” of the act. The question is whether the injury which caused the death of Isabel Duncan was in fact an injury within the purview of the act. In other words, was the act intended to apply to injuries to employees resulting from facts and circumstances such as those here alleged.

Had the injury which caused the employee’s death resulted merely from the negligence of the employer — even though the negligence might be considered gross negligence — the injury would undoubtedly fall within the purview of the compensation act and a common-law action would not lie. But we here go beyond that well-established doctrine. We here for the first time put wanton conduct of an employer in the same class with negligence, as far as the employee’s remedy is concerned. In other words, we say that if an employee’s injury, otherwise under the act, results directly from the wantonness, from wanton acts or conduct on the part of the employer, the employee is in no different position than an employee injured as a result of the employer’s mere negligence, or even where there had been no negligence by the employer. I do not believe the legislature intended such injuries to be “within the purview” of the act.

The ultimate question is this: In using the language “personal injury by accident arising out of and in the course of employment,” did the legislature intend to include anything more than what a person of ordinary prudence should be held reasonably to have contemplated as a hazard incident to the employment? To put it in another way, is it a reasonable interpretation of the statute to say that an injury resulting directly from wanton conduct on the part of the employer, can be classed as one “arising out of” the employment?

The distinction between negligence and wantonness has frequently been stated by this and other courts and it has been repeatedly pointed out that the latter differs from the former not merely in degree but in quality or kind. I shall not burden this statement with extensive quotation from the countless cases which emphasize the distinction. In the recent case of Frazier v. Cities Service Oil Co., 159 Kan. 655,157 P. 2d.822, wherein the distinction was again examined and authorities, including many of our decisions, were cited, it was s,aid:

“To constitute wantonness, the acts complained of must show not simply lack of due care, but that the actor must be deemed to have realized the im*91minence of injury to others from his acts and to have refrained from taking steps to prevent the injury because indifferent to whether it occurred or not ... If the actor has reason to believe his act may injure another, and does it being indifferent to whether it does or not, he is guilty of wanton conduct.” (Italics supplied.) (Syl. It 5.)

Since the court holds that even if the alleged acts and conduct of the employer constituted wantonness and not merely negligence, the allegations need not be recited again in full detail. It is pertinent, however, to expression of my views, to summarize them. Plaintiff alleged that the motor which operated the buffer, and which carried a high and dangerous voltage was installed in disregard and in violation of the ordinance; that it was not grounded; that it was installed in an improper and dangerous manner; that because of this improper, unlawful and dangerous installation, flashes like lightning had frequently been given off by the machine during a period of four years preceding the accident and that a number of employees had been “severely shocked” as a result of this unlawful and dangerous installation; that the wires were not placed in proper conduits; that the steel platform was not covered with a protective rubber pad; that operation of the machine, thus unlawfully and dangerously installed, was a constant menace “to the life and limb” of employees operating it; that the defendants at all times knew of the existence of this hidden danger; that the deceased employee was inexperienced in the operation of electrical machinery; that during the comparatively short period she had been at work, nothing had happened to put her upon notice of any hidden danger and that she had no knowledge of it; that in spite of these facts the defendants refused and neglected to warn her of the existence of this hidden peril “to life and limb,”, or to remove such hidden danger and peril. Clearly these are allegations of complete disregard of the safety of the employee and of indifferences to any injury that might happen to her. If such allegations do not charge wantonness, within the oft-repeated definition, I- do not know how allegations of wantonness could be framed. Certainly in no definition of wantonness that I have been able to find is it made an essential that the person who commits the wanton act, either of commission or omission, deliberately intends to cause injury to a particular person. It is sufficient if he knows of a serious and hidden danger 'of which the other person has neither knowledge nor warning and deliberately permits the other person to subject himself to it, with indifference to whether injury will result. And *92particularly so if this indifference to the other’s safety persists over a considerable period of time.

No case strictly in point on either side of this issue of wanton conduct is cited in ány of the briefs submitted, and our quite extensive research has 'failed to find one. This is to be explained, partly at least, by the divergence of statutes in the various states. For instance, as noted in the court’s opinion, some workmen’s compensation acts provide double compensation where “willful misconduct” on the part of the employer is shown. It is said in the court’s opinion that the fact that our statute has no such provision indicates that the legislature meant to fix the compensation for all injuries, otherwise under the act, regardless of whether they resulted from the employer’s wanton conduct. I think that with at least equal reason it may be aigued that the fact it provided no added compensation in case of wantonness indicates it did not consider injuries so caused to be within the act and did not intend to take from an employee so injured, his common-law remedies.

’ While no cases, decided under like facts and law, have been found, the cases and the textbooks are replete with statements which support the view that only such injuries are within the purview of compensation acts such as ours, which the employee can reasonably be said to have contemplated might happen when he entered the employment. These statements embody what seems to me a sound and fundamental principle. Here are typical statements from among many which might be quoted. In 1 Schneider’s Workmen’s Compensation Law, 2d ed., 736, it is said:

“The accident must result from a risk reasonably incident to the employment, or the injury cannot be said to arise out of U" (Italics supplied.)

In 71 C. J. at page 651:

“In order that an injury may be said to have arisen out of the employment, it must have been the rational'.consequence of, or have had its origin in, a risk inherent in, or connected with or reasonably incident to, the employment, flowing therefrom as a natural consequence.” (Italics supplied.)

In Eifler’s Case, 276 Mass. 1,176 N. E. 529, it was said:

“The purpose of the act is to compensate employees for injuries arising out of and in the course of their employment. But an injury does not arise out of an employment when the risk is one not fairly contemplated by the agreement of employment.” (Italics supplied.) (p. 2.)

Another way of putting the question is to ask whether if the employer through wanton conduct subjects the employee to an “added *93risk” — something not reasonably within the contract of employment —he can hold the injured employee to the limited compensation provided in the compensation act. It has been repeatedly held that if the employee deliberately subjects himself to an “added risk” not reasonably incidental to his employment and thereby suffers injury, he cannot be heard to say that the injury was one “arising out of” the employment. (1 Schneider’s Workmen’s Compensation .Law, 2d ed., 917, cases cited in note 21.) Why should the same sort of rule not apply also as against the employer? ' "

One who enters a hazardous employment, covered by the act, accepts the limitation of compensation fixed by the act as to all injuries reasonably contemplated as incident to the employment. He must assume the possibility of negligent acts by the employer, but at the same time is protected by the act against a defense of contributory negligence. But I see neither reason nor justice in saying that he should also contemplate that the employer may knowingly and wantonly subject him to a serious and hidden danger of which he has no knowledge, of which he is given no warning, and whose existence he has no reason to suspect.

In its bearing upon the immediate question, there is. little if any difference between a case of “assault” made by the employer in connection with the employee’s performance of his work, and a wanton indifference to the safety of the employee in the presence of a great peril known to the employer but unknown to the employee. In neither case can it reasonably or fairly be said that the employee undertakes such a risk when he enters the employment. The employee has as much right to assume that the employer will not endanger his life by wanton acts or conduct as he has to assume that the employer will not physically assault him. Indeed,

• cases may well be envisioned where there would be more extenuation for the striking of an employee in sudden anger because of the employee’s persistent violation of repeated directions as to the proper operation of some machine, than there would be for wantonly subjecting the employee to a hidden peril in operating the machine.

A concluding observation. It is suggested in the court's opinion that if the plaintiff had filed a claim for compensation under the act and had made the same allegations that are made in the instant petition, we would not have denied his right to compensation, and that therefore a common-law action will not lie. This literal*94istic argument ignores realities and is not convincing. In the first place, no employee proceeding under the Compensation Act would have any need or occasion to allege wanton conduct by the employer, being entitled to compensation without any necessity of establishing it. If, in such a proceeding under the act, he should include such unnecessary allegations, I apprehend they would be treated as surplusage and not fatal to prosecution of the claim. Furthermore, it is quite too fanciful to imagine an employer defending or'being permitted to defend upon the ground that he, the employer, was responsible for the injury by his own wanton conduct.

In the separate concurring opinion of Mr. Justice Wedell, the proposition that it is sufficient to hold the employer liable, under the act, “if the injury is incidental to the employment,” is emphasized. I subscribe fully to this well-established rule or principle. But it does not resolve the question here. The issue here presented is whether — assuming the facts to be as alleged — the injury and death of Isabel Duncan were, in fact, “incidental to the employment.” As I see it, they were not incidental to the employment, because they were not such incidents as can justly be said to be contemplated as one of the risks of the employment.

The court now holds that an employee subjects himself, under the act and the remedies it provides, to the hazard of hidden perils to his life of which he has neither knowledge nor warning and to which he would not be subjected except for wanton acts or conduct of the employer, or in other words, for the employer’s wanton indifference to and disregard of his safety. I cannot regard hazards of that sort as “incidental to the employment.” Nor can I believe that any such result is within the purpose or intent of the act or in harmony with the liberal construction to which we are firmly committed.

Smith, J., joins in the foregoing dissenting opinion.