CASE ANNOTATIONS

Cases through 1973

CONSTITUTIONALITY (1-2)

1. Statute is optional and does not infringe constitutional due process provisions. Baker v. St. Louis Smelting & Refining Co., 145 Kan. 273, 281, 65 P.2d 284 (1937).

2. Under act the relation between employer and employee is contractual and optional; act constitutional. Baker v. St. Louis Smelting & Refining Co., 145 Kan. 273, 281, 65 P.2d 284 (1937).

ELECTION TO COME WITHIN ACT (5-8)

5. Employer having made election to come within act is bound thereby regardless of number of employees. McMillen v. Ellis, 107 Kan. 514, 517, 192 P. 744 (1920).

6. Employer doing "engineering works," regardless of number of employees, may elect to be within act. Crawford v. Atchison, Topeka & S. F. Rly. Co., 166 Kan. 163, 165, 199 P.2d 796 (1948).

7. Historical defense re election; rejected. Spottsville v. Cement Co., 94 Kan. 258, 261, 146 P. 356 (1915).

8. No election to come under act filed and no showing of at least five workmen employed by appellant at time of accident; recovery barred. Otta v. Johnson, 204 Kan. 366, 371, 461 P.2d 758 (1969).

"FIVE OR MORE WORKMEN," WHAT CONSTITUTES

—Who is counted (10-13)

10. Number of workmen employed considered; mere clerical employees not to be counted. Udey v. City of Winfield, 97 Kan. 279, 281, 155 P. 43 (1916).

11. Repair shop of taxicab company within act, if more than five employees in the hazardous part of the employment; neither clerical employees, nor administrative employees to be counted. Thorp v. Victory Cab Co., 172 Kan. 384, 390, 240 P.2d 128 (1952).

12. Necessity for continuous employment of five or more workmen prior to amendments eliminating time requirement. Stover v. Davis, 110 Kan. 808, 810, 205 P. 605 (1922).

13. Subcontractor's employees only should be counted to determine subcontractor's liability; employees of principal should not be counted. Southern Surety Co. v. Parsons, 132 Kan. 355, 357, 358, 295 P. 727 (1931).

—Evidence and proof (15-20)

15. Meager but sufficient evidence of five employees. Peoples v. Condie-Bray Glass & Paint Co., 121 Kan. 657, 658, 249 P. 603 (1926).

16. Evidence sufficient to show respondent had five employees as required herein. Walker v. Finney County Water Users Ass'n, 150 Kan. 254, 255, 256, 92 P.2d 11 (1939).

17. Insufficient evidence of five or more employees employed continuously for one month in employer grain elevator business. Johnson v. Voss, 152 Kan. 586, 587, 589, 106 P.2d 648 (1940).

18. Court could not assume independent contractor employed five or more workmen to make compulsory its operation under the act. Bittle v. Shell Petroleum Corp., 147 Kan. 227, 230, 75 P.2d 829 (1938).

19. Discussed; evidence showed insufficient number of employees to place employer under act. Gangel v. Cook Saw Mill, 175 Kan. 673, 674, 675, 265 P.2d 853 (1954).

20. Evidence sufficient to show five employees; objection not raised below. Evans v. Tibbetts, 134 Kan. 131, 134, 4 P.2d 399 (1931).

MANDATORY COVERAGE (last proviso)

—Mines (30-32)

30. Mine owner under act unless he has substitute plan, regardless of number. Gust v. Provident Life & Accident Ins. Co., 136 Kan. 88, 93, 12 P.2d 831 (1932).

31. Driller of zinc and lead prospect holes held working in mine and within act although only two persons employed. Wells v. Eagle-Picher M. & S. Co., 148 Kan. 794, 799, 85 P.2d 22 (1938).

32. Act mandatory upon employer when engaged in mining business or an integral part thereof; subcontractor assayer held engaged in mining. Coble v. Williams, 177 Kan. 743, 744, 747, 748, 749, 282 P.2d 425 (1955).

—Oil and gas (34-37)

34. Business of producing and marketing gas is within act regardless of number of employees. Clark v. Amos, 144 Kan. 115, 118, 58 P.2d 81 (1936).

35. Prior to 1927 amendments oil driller employing less than five workmen not within act. Stover v. Davis, 110 Kan. 808, 810, 205 P. 605 (1922).

36. Prior to 1927 amendment of clause (c) an oil well was not a mine; employer with less than five workmen was not under act. Hollingsworth v. Berry, 107 Kan. 544, 545, 192 P. 763 (1920).

37. Employer of one workman on oil well not within act; section K.S.A. 44-503 disregarded; case is prior to 1927 amendment of clause (c) of K.S.A. 44-508. McIlvain v. Oil and Gas Co., 110 Kan. 266, 268, 203 P. 701 (1922).

—Building work (40-48)

40. Painting of buildings is "building work"; within act irrespective of number of employees. Davis v. Julian, 152 Kan. 749, 758, 107 P.2d 745 (1940).

41. Painting and decorating business within act regardless of number of employees. Palmer v. Julian, 161 Kan. 619, 623, 170 P.2d 813 (1946).

42. "Remodeling work" held to constitute "building work." Shrout v. Lewis, 147 Kan. 592, 594, 77 P.2d 973 (1938).

43. Trimming a tree is not "building work." Thayer v. Bowler, 144 Kan. 136, 137, 58 P.2d 59 (1936).

44. Act applies to building work regardless of number of employees. Setter v. Wilson, 140 Kan. 447, 449, 37 P.2d 50 (1934).

45. Defendant contractors engaged in "building work"; act applicable; building barn on farm. Shuck v. Hendershot, 185 Kan. 673, 347 P.2d 362 (1959).

46. Claimant has burden of proof that employer had "five or more workmen"; total lack of evidence or stipulation on this essential point precludes recovery. Bratcher v. Royse, 185 Kan. 589, 592, 345 P.2d 648 (1959).

47. For purpose of this section no employees are to be counted except those exposed to the hazards of the locality. Mitchener v. Daniels, 187 Kan. 765, 769, 359 P.2d 872 (1961).

48. Who may be counted as employees for purpose of this section; clerical worker employee if exposed to hazards of business. Mitchener v. Daniels, 187 Kan. 765, 768, 359 P.2d 872 (1961).

Cases after 1973

49. Former law (L. 1969, ch. 246) referred to in holding common law action barred; employer's election sufficient; dismissal proper. Stonecipher v. Winn-Rau Corporation, 218 Kan. 617, 620, 545 P.2d 317.