Petition for A Writ of Certiorari — Coe v. Helmerich & Payne, Inc.

Supreme Court brief1966

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RIT eg mT ce rz, “siffice-Supreme Court, U.S.

FILED

NOV8 1965

Lf=> eae

Giirm ca,

OF DAYS, CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1965

No. 729.

HELMERICH & PAYNE, INC.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

JosEPH COHEN

CHARLES S. SCHNIDER

JOSEPH P. JENKINS

Epwarp G. CoLLISTER, JR.

GeRaLp T. ELLIOTT

Huron Building

Kansas City, Kansas

Counsel for Petitioner

rae arn

NNER AE RSL EAE CLES

E. L. Mawpewuate, Ire., 1108 Oak Street, Kansas City, Mo. 64106, HArrison 1-3080

BLANK

PAGE

INDEX

Opinions Below

Jurisdiction .....

Question Presented

Statutes Involved 2.2.

Statement

Reasons for Granting the Writ a an

I. The Appellate Court Ignored Its Obligation to

Follow Local Law When It Neglected to Consider

the Effect of a Change of Local Law Occurring

After the Decision of the Trial Court and Before

the Final Decision of the Appellate Court :...... 10

II. The Decision of the Kansas Supreme Court in

. Hataway v. Procter & Gamble, Inc., Changed or

Clarified the Applicable State Law Subsequent

to the Local Court Decision and Prior to the Ap- |

pellate Decision Thereby Requiring Re-Examina-

tion of the Ruling of the Lower Court ....... 12

-& WO DS WH PO

Conclusion 19.

Appendix A, Memorandum of Decision of the United

States District Court, Filed March 1, 1962 Al

Appendix B, Memorandum of Decision of the United

States District Court, Dated. August 30, 1963 _........ A5

Appendix C, Opinion of the United States Court of Ap-

peals for the Tenth Circuit, Filed August 17, 1964 ... A9

Appendix D, Syllabus by the Court Al4

Appendix E, Motion for Rehearing A23

II INDEX

TABLE OF CASES

Coe v. Helmerich & Payne, Inc., 348 F.2d 1 ...................- 6

Commissioner of Internal Revenue v. Stern, 357 U.S. 39,

2 L.ed. 1126, 78 S.Ct. 1047 11

Durnil v. Grant, 187 Kan. 327, 356 P.2d 872 (1960) ........ 15

Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82

L.ed. 1188 ...... 11

Hataway ve Procter & Gamble, Inc., No. 44,047, Odie

Filed August 17, 1965 ....... 7, 8,9, 12, 17, 18, 19

Henderson v. Sutton’s Food City, 191 Kan. 145, 379 P.2d

300 (1962) : 6, 15, 16, 17, 19

Huddleston v. Dwyer, 322 U.S. 232, 64 S.Ct. 1015, 88

L.ed. 1246 ..... ...10, 11, 12

- Lessley v. Kansas Power and Light, 171 Kan. 197, 231

P.2d 239 (1951) 6, 13, 14, 15, 17, 18, 19

Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. ........ , 14

L.ed. 2d 601 \ 11

United States v. Schooner Peggy, 5 U.S. (1 rr 103,

BE FI eiiscaii i tiieanioviisinsnendtbantaiitastoanetite : 11

STATUTES

Kan. Stat. Ann. 44-503 (a) (d) 3, 6, 7, 13, 15

28 U.S.C. § 1652 3,10

“4

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1965

No.

HELMERICH & PAYNE, INC.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To THE UniTep Srates Court or APPEALS FOR THE TENTH

Crrculr:

Harry L. Coe, petitioner, prays that a writ of certiorari

issue to review the judgment entered in this cause on August

17, 1964, by the United States Court of Appeals for the

Tenth Cireuit affirming the granting of summary judgment

for respondent under Rule 56 of the Federal Rules of Civil

Procedure by the United States District Court for the Dis-

trict of Kansas.

OPINIONS BELOW

The Memorandum of Decision of the United States Dis-

trict Court for the District of Kansas, dated March 1, 1962

(Appendix A); the Memorandum of Decision of the United

States District Court for the District of Kansas, dated

August 30, 1963 (Appendix B); the opinion of the United

States Court of Appeals for the Tenth Circuit, 348 F.2d 1

(Appendix C); the opinion of the Supreme Court of the

State of Kansas in Hataway v. Procter & Gamble Manu-

facturing Company, No. 44,047, filed August 17, 1965 (Ap-

pendix D); the Motion for a Rehearing filed by appellee in

the Hataway case (Appendix E).

JURISDICTION

The United States Court of Appeals for the Tenth Cir-

cuit affirmed the granting of summary judgment by the

United States District Court for the District of Kansas on

August 17, 1964. A petition for a rehearing was filed in

the Court of Appeals on September 2, 1964, and was denied

on August 27, 1965. . .

On October 8, 1965, the mandate was stayed for a period

of 30 days as provided by Rule 28(3) of said court.

The jurisdiction of this Court is invoked under 28

U.S.C., Sec. 1254(1).

QUESTION PRESENTED

1. May a federal appellate court sitting in review in a

diversity case rely on the judgment of a local district court

judge as to the interpretation of local law where there is an

intervening decision by the highest state court which

changes the law of the state or clarifies it significantly,

and where the local district judge did not have the bene-

fits of such latest decision?

STATUTES INVOLVED

28 U.S.C. § 1652. State laws as rules of decision.

The laws of the several states, except where the

Constitution or treaties of the United States or Acts of

Congress otherwise’ require or provide, shall be re-

“garded as rules of decision in civil actions in the courts

of the United States, in cases where they apply.

Kan. Stat. Ann. 44-503. Subcontracting.

(a) Where any person (in this section referred to as

principal) undertakes to execute any work which is

a part of his trade or business or which he has con-

tracted to perform and contracts with any other per-

son (in this section referred to as the contractor) for

the execution by or under the contractor of the whole

or any part of the work undertaken by the principal,

the principal shall be liable to pay to any workman

employed in the execution of the work any com-

pensation under this act which he would have been

liable to pay if that workman had been immedi-

ately employed by him; and where compensation

is claimed from or proceedings are taken against

the principal, then in the application of this act

refer€énces to the principal shall be substituted

for references to the employer, except that the amount

of compensation shall be calculated with reference to

the earnings of the workman under the employer by

whom he is immediately employed.

*. «x *

(d) This section shall not apply to any case where

the accident occurred elsewhere than on, in or about

the premises on which the prineipal has undertaken

to execute work or which are otherwise under his con-

trol or managenient, or on, in or about the execution

of such work under his control or management.

STATEMENT

This application for review arises out of a bizarre se-

quence of events following the petitioner’s filing of his com-

plaint in the United States District Court for the District

of Kansas seeking to recover for horribly crippling injuries

suffered as the result of an oil tank explosion. As will some-

times occur in the administration of the law, five years

have elpased since this unfortunate occurrence and not

only has the cause not been heard on its merits, but the

petitioner is confronted with the possibility that it will

never be heard on its merits.

On October 21, 1960, petitioner was employed by one

Donald W. Edwards as a truck driver and laborer. Edwards

was engaged in the business of a common carrier of crude

oil and water, as well as a so-called accessory service of

cleaning oil storage tanks in ‘and about Garden City in

western Kansas. He was licensed to engage in such busi-

ness by the Corporation Commission of the State of Kansas.

The respondent is an Oklahoma corporation engaged in ac-

tivities related to the oil and gas business. One of these

activities, the production of oil and gas, was undertaken

on a lease known as U.S.A. 4 on the Pleasant Prairie Pool,

near Garden City, Kansas. Crude oil is pumped out of the.

ground and collected and stored in oil storage tanks prior

to its sale to a pipe line company. The:oil so stored con-

tains sediment which constantly settles, thus requiring

periodic cleaning of the bottom of the tanks.

Edwards was first engaged to clean tanks by respond-

ent on June 7, 1958. He also contracted to haul water and

oil for drillmg purposes. He did such work under an oral

agreement which provided for.the standard rate of pay

for the labor and equipment. The rate was set by the

Kansas Corporation Commission. He was not engaged to

clean tanks for respondent on a regularly scheduled basis,

but only when called by it. By discovery, it was estab-

lished that none of respondent’s employees ever assisted

Edwards or any other tank cleaning firm in the cleaning

of its tanks either prior, or subsequent, to October 21, 1960,

the date of the explosion. Two other tank cleaning firms

were also used by respondent to clean its tanks.

David Dietz, respondent’s lease pumper at the Pleas-

ant Prairie Pool, testified that he had been on the lease

‘or three years and that during that time respondent had

always hired someone else to do the cleaning. He further

testified that respondent kept no crew for this purpose.

Petitioner testified by deposition that it is customary for

the oil producers in that area to hire somebody else other

than their own employees to clean tanks. That was the

general custom followed in that particular oil field. The

affidavits of Edwards, Virgil Lathem, and A. T. Walker,

aii common carriers of crude oil and fresh water, as well

as tank cleaners operating in the Garden City area, stated

that the type of work involved in petitioner’s case was

normally not performed by employees of the pfoducers.

The trial court found that it was customary for the

respondent to hire out the tank cleaning work. (Appen-

dix B, p. A5)

On October 21, 1960, oil storage tank 246, owned and

operated by respondent, exploded when petitioner, in his

capacity as an employee of Edwards, was preparing to

clean it. As a result, he suffered severe, disabling, and dis-

figuring second and third degree burns over the greater

part of his body resulting in extensive hospitalization, 22

Separate plastic surgery procedures, and total and per-

manent disability.

On February 14, 1961, the petitioner filed his com-

plaint in the United States District Court for the District

of Kansas alleging that as a result of the failure of re-

spondent to use due care in the installation, service, and

maintenance of tank 246, said tank exploded, damaging

the petitioner in the amount of $250,000.00. Jurisdiction

was based on diversity of citizenship. On July 18, 1962,

after discovery had been begun, a motion for summary

judgment was filed by the respondent. While the mo-

tion was pending, the Supreme Court of the State of

Kansas handed down a decision which appeared con-

clusively favorable to petitioner and perhaps even over-

Tuled cases which would have otherwise cast some doubt

on the strength of petitioner’s case. Henderson v. Sutton’s

Food City, 191 Kan. 145, 379 P.2d 300 (1962). The motion

for summary judgment in the federal court was sustained

by the Honorable Arthur J. Stanley, Jr., on August 30,

1963. The court concluded that this petitioner was a

statutory employee within the meaning of Kan. Stat. Ann.

44-503 and therefore precluded from bringing a third party

action. He was thus limited to the recovery provided by

the Kansas workmen’s compensation act.

The opinion distinguished Henderson, finding it in-

applicable on the ground that the accident there occurred

off the premises of the third party, whereas this petitioner

was injured on the premises. Additionally, the court

noted that “The depositions taken and interrogatories an-

swered sufficiently show that the work in which the plain-

tiff was engaged was clearly a necessary incident to the

defendant’s trade” (App. B, p. A7); thus relying on

Lessley v. Kansas Power and Light, 171 Kan. 197, 231 P.

2d 239 (1951). Appeal was taken to the United States

Court of Appeals for the Tenth Circuit, but on August

17, 1964, the judgment of the lower court was affirmed.

Coe v. Helmerich & Payne, Inc., 348 F.2d 1. The Court

of Appeals explained that it could find no consistent pat-

tern in the Kansas decisions and chose to bottom its own

decision on the lower court’s interpretation of local law.

Concurrently, however, a curious set of circumstances

was developing. Counsel for this petitioner was also coun-

sel for another plaintiff in a workmen’s compensation-

third-party suit pending in the state district court of

Wyandotte County, Kansas (Hataway v..Procter & Gam-

ble, Inc., District Court of Wyandotte County, Kansas, No.

15,949-B). Hataway involved an on-the-premises accident

analogous to the accident involved herein. On May 22,

1964, a motion for summary judgment was granted against

the plaintiff in the Hataway case and an appeal taken

to the Kansas Supreme Court. On September 2, 1964, after

the decision of the Tenth Circuit had been announced,

but before the argument to, or the decision of, the Kansas

Supreme Court in Hataway, a petition was filed with the

Court of Appeals asking for a rehearing, or in the alter-

native that the court stay its final decision pending the

decision of the Supreme Court of the State of Kansas in

Hataway. The latter was granted and the Court of Ap-

peals stayed proceedings.

The third party question arose in exactly the same

manner in Hataway as in the case at bar. The statutory

employee defense’ was again raised, that is, that plaintiff

Hataway, a foreman for a construction company erecting

“a building for Procter & Gamble, was by virtue of Kan. Stat.

Ann. 44-503 also the employee of Procter & Gamble, so that

his remedy was restricted to the limited benefits of, the

Kansas workmen’s compensation law. On the appeal to

the Kansas Supreme Court, it became evident that the

state case and the instant federal case had assumed pre-

cisely identical postures on an extremely important point

of local law. The only question before the two courts was

whose work was being done? That answer would resolve

one

the on or off the premises thesis which the lower federal

court had considered conclusive, but which because of

the statute cited, and the case law, was really of no sig-

nificance. It yielded to the “whose work was being done”

question.

If the two defendants were correct, the erection of a

‘ building and the cleaning .of oi] tanks were activities

necessary for them to continue and function in their

respective businesses. Therefore, it was their work which

was being done so that the respective plaintiffs became

their statutory employees under the appropriate Kansas

statutes and thus barred from common law relief against

them. :

The plaintiffs, however, contended that they were en-

gaged in work not regularly done by employees of the

defendant, and therefore, under the latest Kansas decision,

they were not statutory employees and thus free to pursue

their common law actions against the defendants>

Counsel for this respondent obtained leave in the state

case to appear as amicus curiae. They filed an extensive

brief adepting the identical arguments they had urged be-

fore the Court of Appeals. In his brief filed in the state

case, the appellant there pointed out the confusion ex-

pressed by the Court of Appeals and urged that the situa-

tion be clarified. This case then pended in the Court of

Appeals awaiting the outcome of Hataway before the state

court. Oral argument was had, and Hataway was decided

on August 17, 1965. ‘The Kansas Supreme Court reversed

the ruling of the state trial court which had granted sum-

mary judgment to the third party and concluded that Hata-

way was not restricted to the benefits of the Kansas work-

men’s compensation act but could bring an action in tort

against the third partv. . ’

Since it appeared clear that the Kansas Supreme Court

had finally clarified the earlier decisions, and that the

Hataway case was directly in point with the case ai ‘ar,

counsel then apprised the Circuit Court of Appeals of the

decision. The surprising result was, however, that on

August 27, 1965, without argument or other presentation

of views as to the applicability of Hataway, the petition for

rehearing was denied without opinion. The Court of Ap-

peals thus apparently relied on its opinion prepared one

year earlier which in turn had relied on the judgment of

the local federal judge in 1963. And this was done ith-

standing the fact that the Hataway decision which was

not available to the trial judge did materially change and

clarify the Kansas case law interpretation with regard to the

right to recover against the third party of an on-the-prem-

ises accident, and with regard to the “whose work is being

done” doctrine. All this, even though the Circuit Court

of Appeals had withheld its ruling on petitioner’s motion

for a rehearing for more than a year waiting the outcome

of the Kansas case.

In Hataway a petition for rehearing was filed on Sep-

tember 1, 1965, and denied on’ September 10, 1965. A copy

of this petition for rehearing which reiterated all the ar-

guments of the respondent herein which apparently had

persuaded the Court of Appeals, but not the Kansas Supreme

Court, is appended hereto.

It is clear that the Court of Appeals has ignored the ef-

forts of the Kansas Supreme Court to clarify earlier de-

cisions and to inject consistency in this field of Kansas law.

REASONS FOR GRANTING THE WRIT

The Appellate Court Ignored Its Obligation to Follow

Local Law When It Neglected to Consider the Effect of

a Change of Local Law Occurring After the Decision

of the Trial Court and Before the Final Decision of the

' Appellate Court.

The manner in which the appellate court disposed of

this petitioner’s appeal was squarely contrary to the rul-

ings of this Court as well as the Rules of Decision statute,

28 U.S.C, § 1652. In Huddleston v. Dwyer, 322 U.S. 232, 64

S.Ct. 1015, 88 L.ed. 1246, this Court said:

“State law is the controlling rule of decision in this

case as to both substantive and procedural rights of —

the parties. Erie R. Co. v. Tompkins, 304 U.S. 54, 82

L.ed. 1188, 58 S.Ct. 817, 114 A.L.R. 1487, Federal Rules

of Civil Procedure, Rules 69(a), 81(b), 28 U.S.C.A. fol-

lowing § 723(c), 8 F.C.A. 1937 ed. title 28, Appx. 3, pp.

741, 747. It is the duty of the federal appellate courts,

as well as the trial court, to ascertain and apply the

state law where, as in this case, it controls decision.

Meredith v. Winter Haven, 320 U.S. 288, 88 L.ed. 9, 64

S.Ct. 7. And a judgment of a federal court ruled by —

state law and correctly applying that law as authori-

tatively declared by the state courts when the judg-

ment was rendered, must be reversed on appellate re-

view if in the meantime the state courts have disap-

proved of their former rulings and adopted different

ones. ‘Until such time as the case is no longer sub

judice, the duty rests upon federal courts to apply state

law under the Rules of Decision statute in accordance

with the then controlling decision of the highest state

court. Vanderbark v. Owens-Illinois Glass Co., 311

U.S. 538, 543, 85 L.ed. 327, 330, 61 S.Ct. 347.

The second opinion of the. Oklahoma Supreme

Court in the Wilson case has at least raised such doubt

as to the applicable‘Oklahoma law as to require its re-

examination in the light of that opinion and of later de-

cisions of the Supreme Court of Oklahoma on which re-

spondents rely, before pronouncement of a final judg-

ment in the case by the federal courts.” Lc. 236-237,

88 L.ed. at 1249.

The case at bar is a diversity case, brought in the

United States District Court for the District of Kansas, by a

Kansas resident against an Oklahoma citizen to recover

for a tort committed in Kansas on the former by the latter.

As such it is controlléd by Erie R. Co. vs Tompkins, 304 U.S.

64, 58 S.Ct. 817, 82 L.ed. 1188, and those principles sub-

sequently developed therefrom by this Court. Those rele-

vant and controlling principles, so developed, which are

applicable to this petitioner’s cause are succinctly set out

jn the quotation above from Huddleston v. Dwyer, .supra.

It would serve no useful purpose to once again demon-

strate that the rules there delineated are sound in theory

and just in result. It-is sufficient for present’ purposes to *

notice that this Court continues to adhere to them. Erie

still obtains. Commissioner of Internal Revenue v. Stern,

357 U.S. .39,°2 L.ed. 1126, 78 S.Ct. 1047. As recently as

Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. -....... , 14 L.ed.

2d 601, this Court explained again, quoting Chief Justice

Marshall in United States v. Schooner Peggy, 5 U.S. (1

Cranch) 103, 2 L.ed. 49:

“ ‘Tt is in the general true that the province of an ap-

pellate court is only to enquire whether a‘ jud t

when rendered was erroneous or not. But if s&bse-

quent to the judgment and before the judgment of the

appellate court, a law intervenes and positively changes

the rule which governs, the law must be obeyed, or

its obligation denied.’ ”

* * ¢ |

“This same approach was subsequently applied in

instances where a statutory change intervened, Car-

penter v. Wabash R. Co» 309 U.S. 23, 84 L.ed. 558, 60

S.Ct. 416 (1940); where’a constitutional amendment

was adopted, United States v. Chambers, 291 U.S. 217,

78 L.ed. 763, 54 S.Ct. 434, 89 A.L.R. 1510 (1934); and

where judicial decision altered or overruled earlier case

law, Vandenbark v. Owens-Illinois Glass Co., 311 U.S.

538, 85 L.ed. 327, 61 S.Ct. 347 (1941).” 14 L.ed. at 606-

607. .

It remains now, to show that the opinion of the Kansas

Supreme Court in Hataway at least raised such doubt as to

the applicable Kansas law as to require its examination be-

fore pronouncement of a final judgment in ‘this case by

the federal courts. When this has been done, the Circuit

Court’s disregard of the Huddleston mandate, through its

failure to consider the applicability of the Hataway decision,

will be clear.

The Decision of the Kansas Supreme Court in Hataway

v. Procter & Gamble, Inc., Changed or Clarified the

Applicable State Law Subsequent to the Local Court

Decision and Prior to the Appellate Decision Thereby

Requiring Re-Examination of the Ruling of the Lower

Court.

The attitude with which a federal appellate court must

approach an intervening change in local law was described

’ in ‘the earlier quotation from Huddleston:

~—

“The second opinion of the Oklahoma Supreme Court in

the Wilson has at least raised such doubt as to

the applicable Oklahome law as to require its re-ex-

amination in light of that opinion * * *, before pro-

nouncement of ‘—"s judgment in the case by the

federal courts.” (le. 322 U.S. at 236-237) (Emphasis

supplied). » ae

Your petitioner respectfully submits that the change

introduced into Kansas case law by Hataway, at the mini-

mum, raised such doubt as to the applicable Kansas law

as to require re-examination of the trial court’s decision

in light of it.

As is generally true, in Kansas,

“* * * If a workman can recover compensation under

the workmen’s compensation act (G.S. 1935, Ch. 44,

Art. 5) for an injury the remedy is exclusive and he

cannot maintain a common law action for damages

founded on negligence against a party from whom he

could have recovered compensation under the act.” -

Lessley v. Kansas Power & Light, 171 Kan. 197, 203, 231

P.2d 239, 244 (1951).

Those workmen entitled to recover compensation under

the Kansas act are described in Kan. Stat. Ann. 44-503.

Whether or not the petitioner has a cause of action against

the respondent for the latter’s alleged negligence depends

on the meaning of that statute’s crucial language:

“* * * undertakes to execute any work which is a part

of his trade or business * * *.”

There is no statutory definition of this language, and con-

sequently recourse must be haff'to case law. The Kansas

case law definition of this statutory language has recently

undergone change; and it is the substance and timing of the

change which is the very heart of petitioner’s position.

The earlier Kansas view was laid out in Lessley v.

Kansas Power & Light Company, supra. In that case plain-

tiff was employed by a subcontractor of the general con-

tractor to assist in the building of a power plant for the

defendant. While on the job plaintiff was injured by an

explosion in the building in which he was working. He

thereupon brought a common law action against the de-

fendant power company to recover damages for the per-

sonal injuries suffered by him. The trial court sustained

defendant’s motion for judgment on the pleadings on the

ground that the plaintiff was entitled to workmen’s com-

. pensation benefits from the defendant and therefore not

entitled also to pursue his common law remedy for dam-

ages. The plaintiff appealed, but the decision of the trial

court was affirmed. The Kansas Supreme Court noted:

“At the time defendant entered into the contract just

mentioned, and at all times pertinent to the issues in-

volved, it did not have in its regular employ persons

skilled and expérienced and regularly engaged in the

construction of large buildings and the installation of

large and heavy equipment therein.” (l.c. 200, 231

P.2d at 242).

Defining the issue which was raised on appeal, the

court said:

“In the final analysis the acid test to be applied is

whether the work contracted to be done was a part of

the appellee’s trade or business.” (l.c. 206, 231 P.2d at

246-247).

One of the issues raised by the plaintiff on appeal was

that appellant and appellee were not subject to the work-

men’s compensation act if the work undertaken by appel-

lee and so contracted was not usually and ordinarily per-

formed in the operation of its trade or business. To this,

the court responded:

ee ee eens bee asad been

_ indicated. Shortly stated, it is that liability under

“Section 44-503 is not limited to work usually or nor-

mally performed by the principal but extends to all

work which is a part of its trade or business.” ae.

209, 231 P.2d at 248).

The court had earlier concluded that new buildings

and new equipment were incidents essential to the proper

maintenance of such a business, and thus denied recovery.

But the Lessley case is not Kansas’ latest interpreta-

tion of the crucial language. From this point on it is nec-

essary to keep in mind this question: Whether the cases

since Lessley raise such a doubt as to the applicable Kansas

law as to require its examination in light of them.

.Twelve years after Lessley came Henderson v. Sut-

ton’s Food City, Inc., 191 Kan. 145, 379 P.2d 300 41963).

Henderson was an employee of a trash hauler who had

contracted with defendant, a grocery store; to remove trash

from its premises. While en route to defendant’s place of

business, Henderson had an accident, and, » attempting com-

pliance with the ruling of the Lessley case, brought a claim

for workmen’s compensation benefits against the respond-

ent Sutton. But benefits were denied on the ground that —

Henderson was not a statutory employee of the respondent

as coritemplated by the provisions of G.S. 1949, 44-503 (a),

and the district court’s decision was affirmed én appeal.

Whether or not Henderson was such an er: was the

question raised. ;' ; ;

The opinion does not mention Lessley but relies largely

on Durnil v. Grant, 187 Kan. 327, 356 P.2d 872 (1960), say-

ing: .

“In Durnil v. Grant, supra, it was said: ‘The applica-

bility of the statutory employee section, 44-503 (a),

supra, in this jurisdiction has been determined in many

decisions by-,inquiring whether the work involved

would ordinarily have been done through employees

of the principal. Thus, in arson on Workmen’s Com-

pensation, Vol. 1, § 49. 12, it is stated:

eter with a surprising degree of harmony, the

cases . . agree upon the general rule-of-thumb that

the statute covers all,situations in which work is

accomplished which this employer, or employers in

a similar business, would ordinarily do through em-

ployees’.” (p. 725) (p. 334).

“Insofar as the record discloses hauling trash is not

work which the manager of a grocery super market

would ordinarily have done through employees of the

business.

“Here Sutton exercised no direction, supervision or con-

trol over the claimant or his employer, or over the man-

ner in which Miller carried on his trash hauling busi-

ness. * * *

“We think it is immaterial to a decision herein that on

the day of the accident here in question claimant’s only

trash haul was to be from the Sutton Store. The busi-

ness of Miller was that of hauling trash. There were

- approximately twenty or more business establishments

under trash hauling contracts with Miller, who was

claimant’s employer. * * *

“The claimant was not actually performing the work of

Sutton, but was performing the work of Miller, an in-

dependent businessman with twenty or more different.

trash hauling stops. * * *” (l.c. 148-49, 379 P.2d at 303).

The apparently controlling Lessley case was never dis-

cussed, even though it would seem patent that for a super

market the hauling away of trash would come within the

limits of Lessley’s “all work which is a part of its trade or

business”, and surely is an incident essential to the proper

maintenance of such a business.

Henderson was brought to the attention of the local

court dnd the Court of Appeals, but the lower court dis-

tinguished the decision on the ground that the accident

there occurred off the premises while the accident in the

case at bar had otcurred on the premises. That distinc-

tion was shortly destroyed in Hataway v. Procter & Gamble,

Inc., No. 44,047, opinion filed August 17, 1965.

Factually, Hataway distinctly resembles Lessley.

Hataway was employed by a subcontractor of the defend-

ant who was in the process of building, on the defendant’s

premises, an addition to the defendant’s plant. While

carrying out the duties of such employment, he was in-

jured as a result of the negligence of the defendant. The

plaintiff relied on the apparent meaning of the Hender-

son decision, and brought a common law action for dam-

ages, rather than a workmen’s compensation claim, against

Procter and Gamble. The trial court decided to rely on

Lessley, rather than Henderson, and granted summary

judgment against the plaintiff. On appeal, this decision

was reversed.

Asa tiside for the reversal, the Kansas Supreme Court,

just as the plaintiff, relied on Hendegson, and repeated

the following language from that case:

“Insofar as the record discloses hauling trash is not

work which the manager of a grocery super market

would ordinarily have done through employees of the

business. (p. 148)

“In the Henderson case we found that the classifica-

tion of a trash hauler was a separate and independent

business operation.”

The Hataway opinion, at page 10, concluded:

. “We are convinced that in view of what has been

stated and discussed, that the Henderson case was con-

trolling here. Insofar as the record discloses, the con-

struction of the Tide Building was not work which

the manager of Procter and Gamble Soap Campany

would ordinarily have done through employees of the

business of manufacturing soaps and detergents. It

was Fruin-Colnon Contracting Company’s business to

construct the building for the Tide addition on the

‘Procter and Gamble plant and it was the latter’s busi-

ness to operate the Tide addition after its erection.”

Certainly the addition to a soap plant (Hataway) is

just as much a part of the “work which is a part of its

trade or business” for that soap plant as is an addition to

a power plant (Lessley). And clearly the addition to a

soap plant is an incident just as essential to the proper

maintenance of such a business as is the addition to a

power plant. But the Hataway decision did. not rely on

these applications of the crucial language, even though

they were squarely applicable. The Hataway decision, in-

stead, pointed out that the record disclosed that construc-

tion work was not the work which Procter and Gamble’s

manager would ordinarily have done through employees

under his control. And the record in the present case

discloses, at a minimum, that there is a clear question of

fact whether the cleaning of sediment from the bottom

of storage tanks was work that the defendants or others

in the same business, would ordinarily’ a done through

employees under their control.

The affidavits and depositions clearly established in

this case that the involved work was not performed by

employees of respondent. «

Referring specifically to Lessley, the Kansas court

said:

“It should be noted that in the admitted facts in the

pleadings of the Lessley case, we find in regard to the

Kansas Power & Light Company that, ‘It was author-

ized to do business as a public utility and . . . by virtue

of the articles of incorporation issued it by the State

of Kansas it was authorized . . . to do all things neces-

sary for the conduct of a general electric . . . business,

also to build, construct . . . power plants, power houses.

...” (Emphasis by court) (p. 199, 251 P.2d at 242).

a ae

eee voeTmny sr yeR ee

While neither Henderson nor Hataway expressly

overrule Lessley, their repudiation of it is clear. At the

very minimum, they raise such a doubt as to its applicabil-

ity to the present case as to require the appellate court

- to re-examine its application of Lessley before the pro-

nouncement of a final judgment by the federal court. To

deny this re-examination is to deny the obligation of local

law.

CONCLUSION

This Court is not called upon to find that Henderson and

Hataway have overruled Lessley, but only that they have

raised such doubt as to its applicability in the present case

as to require a re-examination of its application in light of

those two cases before the federal courts pronounce final

judgment. The petitioner believes such doubt is clearly

shown, and that re-examination is required. When the

Circuit Court failed to re-examine, it acted in conflict with

all other circuits, potentially.in conflict with state law, and

clearly in conflict with the decisions of this Court.

It is respectfully urged that for the reasons given, this

petition for certiorari should be granted.

Respectfully submitted,

JOSEPH COHEN

CHARLES S. SCHNIDER

JOSEPH P. JENKINS

ad Epwarp G. CoLLisTEr, JR.

GeraLp T. ELLIOTT

~ Huron Building _

Kansas City, Kansas

Counsel for Petitioner

PAGE

vor

es —

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

HARRY L. COE, ‘

Plaintiff, | -

vs. > No. KC-1511

HELMERICH & PAYNE, INC.,

Defendant. |

Memorandum of Decision

(Filed March 1,,1962)

This is an action seeking recovery for common law

negligence. The defendant is engaged in the business of —

developing oil and gas leases, conducting drilling and pump-

ing operations, and storing and selling crude oil. Plain-

tiff is a truck driver and laborer employed by Donald W.

Edwards. Edwards operates trucks to haul water to drill-

ing sites and also cleans crude oil storage tanks. Defend-

ant contracted with Edwards to clean a tank. Plaintiff

was injured while attempting to remove an “access plate”

on the tank. Defendant’s motion to dismiss for failure

to state a claim upon which relief can be granted, is now

before this court.

Defendant contends that plaintiff is restricted to re-

covery of workmen’s compensation as an exclusive rem-

edy. Defendant. would bring plaintiff within the Kansas

Workmen’s Compensation Act under § 44-503 (a):

“Where any person (in this section referred to

as principal) undertakes to execute any work which

is a part of his trade or business or which he has con-

tracted to perform and contracts with any other per-

_ A2

son (in this section referred to as the contractor) for

the execution by or under the contractor of the whole

or any part of the work undertaken by the principal,

the principal shall be liable to pay to any workman

employed in the execution of the work any compen-

sation under this act which he would have been liable

to pay if that workman had been immediately em-

ployed by him. * * *”

The action should not be dismissed for failure to state

a claim unless the complaint shows conclusively that plain-

tiff is entitled to no relief under any state of facts which

could be proved in support of the claim. 2 Moore, Federal

Practice 2245 (2d ed. 1948). Before resolving that ques-

tion, the rule which will govern the answer must be as-

certained.

The Kansas rule is “that if a workman can recover

* compensation under the workmen’s compensation act for

an injury the remedy is exclusive and he cannot maintain

a common law action for damages founded on negligence

against a party from whom he could have recovered com-

pensation under the act.” Lessley v. Kansas Power &

Light Co., 171 Kan. 197, 231 P.2d 239 (1951).

The earlier Kansas cases excluded employees of in-

dependent contractors from coverage under G.S. 44-503.

The case of Bittle v. Shell Petroleum Corp., 147 Kan. 227,

75 P.2d 829 (1938), reannounced the rule. As a “typical”

case in support of the ryle, the court in Bittle cited

Farmer v. Purcell, 109 Kan. 612, 201 Pac. 66 (1921). On

page 616 of the Farmer case, however, the court said:

“We are not called upon to determine whether

the defendant might be liable notwithstanding the

plaintiff was the employee of an independent con-

. tractor, under the portion of the compensation act

which reads: [§ 44-503(a) was then quoted].”

SE PS NE Ber LI

Ml API Me PIE en I GE IE FORELEG

Six years after the»Farmer decision, the Kansas Su-

preme Court in Purkable v. Greenland Oil Co., 122 Kan.

720, 253 Pac. 219 (1927), held that an employee of an

independent contractor was within the coverage of § 44-

503 when the work undertaken was necessarily incidental.

to the principal’s trade or business.

The Bittle and Purkable decisions each spawned a

separate line of cases. See Truhlicka v. Beach Aircraft

Corp., 162 Kan. 535, 178 P.2d 252 (1947) and Waterbury

v. Riss & Co., 169 Kan. 271, 219 P.2d 673 (1950) (follow-

ing Bittle); and Lehman v. Grace Oil Co., 151, Kan. 145,

98 P.2d 430 (1940) and Bailey v. Mosby Hotel Co., 160

Kan. 258, 160 P.2d 701 (1945), (following Purkable).

A more recent Kansas pronouncement on the rule ap-

plicable to § 44-503 is found in Lessley v. Kansas Power

& Light Co., supra. This case reiterates the Purkable

rule. The Bittle, Truhlicka, and Waterbury cases were not

overruled although four Justices, while concurring, felt

that they should have been. Lessley must be accepted as

the present rule in Kansas even though it, does not elimi-

nate all unéertainty.

Plaintiff also argues that if an employee of an in-

dependent contractor is not absolutely barred from cover-

age under § 44-503, the test for coverage is not only

whether the work was necessarily incidental to the prin-

cipal’s trade or business as laid down in Purkable, but

also whether the principal had the right to control the

work.

The cases cited by plaintiff in support of the control

test are not in point. Bright v. Bragg, 175 Kan. 404, 264

P.2d 494 (1953); Evans v. Board of Educ., 178 Kan. 276,

284 P.2d 1068 (1955); Judd v. City of Emporia, 183 Kan.

689, 331 P.2d 316 (1958). The question in these cases was

whether there existed an employer-employee relationship

which brought the plaintiff under the act in general. The

provisions of § 44-503 were not relied upon.

The motion to dismiss must, therefore, be governed

by what I believe to be the Kansas rule—that a principal

is liable for injury to an employee of an independent con-

tractor when the work in which he was engaged is part

of, the principal’s business as a necessary incident to

prosecution of the principal’s primary business. Tested

by this rule, I cannot say that the complaint shows on its

face that no state of facts could be proved under its al-

legations which would entitle the plaintiff to relief. The

motion to dismiss will be denied.

Counsel will submit an appropriate order. =

Dated at Kansas City, this 28th day of February, 1962.

(signed) Arthur J. Stanley, Jr.

Judge

- f

APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR

» THE DISTRICT OF KANSAS

HARRY L. COE, :

Plaintiff,

vs. } No. KC-1511

HELMERICH & PAYNE, INC., |

Defendant. |

Memorandum of Decision and Order

(Filed August 30, 1963)

This matter is now before the court on defendant’s mo-

tion for summary judgment. On March 16, 1962, this court

» entered its order denying a motion to dismiss filed by the

defendant. The facts and matters of law as more com-

pletely set out in the court’s memorandum of decision filed

March 1, 1962, are incorporated herein by reference.

The issue presented by the defendant’s motion for sum-

mary judgment is whether an issue of material fact exists

and whether the defendant is entitled to judgment as a

matter of law.

These facts are established: Plaintiff's employer con-

tracted with the defendant to clean an oil storage tank;

they were customarily so employed; the plaintiff went upon

property which was under the defendant’s control to do the

job assigned pursuant to the contract; and he was injured

there in the performance of those duties.

In its earlier memorandum, this court held, inter alia,

“* * * if a workman can recover compensation under the

workman’s comperisation act for an injury the remedy is

exclusive and he cannot maintain a common law’ action

for damages founded on negligence against a party from

whom he could have recovered compensation under the

act.” Lessley v. Kansas Power & Light Co., 171 Kan. 197,

231 P.2d 239 (1951). Further, it was held that an employee

of an independent contractor is within the coverage of Kan.

G.S. 1949, 44-503, whereby the principal is directly liable

to the contractor’s employee in workman’s compensation,

when the work undertaken is necessarily incidental to pros-

ecution of the principal’s trade or business. Purkable v.

Greenland Oil Co., 122 Kan. 720, 253 Pac. 219 (1927).

The critical question, therefore, is whether the work

undertaken by the plaintiff was an integral part of the de-

fendant’s business. The plaintiff relies upon Henderson

v. Sutton’s Food City, 191 Kan. 145, 379 P.2d 300 (1963),

where a trash hauler who had contracts with 20 or more

business establishments in Topeka was held to be an “inde-

pendent contractor.” His employee, injured en route to one

of the businesses for purposes of picking up trash, was held

not to have been a “statutory employee” of the operator of

such business, and therefore not entitled to workmen’s com-

pensation. In that case, the court said the test to determine

the applicability of the statutory employee section is

whether the work ‘involved would ordinarily have been

done through employees rather than independent con-

tractors. (Citing Durnil v. Grant, 187 Kan. 327, 356 P.2d

872 (1960) ). Affidavits filed by the plaintiff and the de-

position of one of the defendant’s employees establish that

it was customary for the producing company to hire-out

the tank cleaning work. David Dietz deposition, pp. 32, 33

(May 25, 1962).

The defendant urges that Henderson is distinguishable

since the injury in that case did not occur on premises

under the claimed principal’s control. Subsection (d) of

AT ,

44-503 states that the section shall not apply where the

accident occurs elsewhere than on, in or about premises

which are under the principal’s control, or on or about

premises on which the principal has undertaken to execute

work. The purpose of such a clause is to limit the princi-

pal employer’s liability to those situations where conditions

may be assumed to be largely within his control or under

his observation. 99 C.J.S. Workmen’s Compensation §

107(d).

In his reply brief, the plaintiff asserts that the court

in Henderson did not hinge its ultimate conclusion on the

fact that the injury occurred elsewhere than on the re-

spondent’s premises. However, the court did observe,

“(t)he claimant was not on the premises of Sutton when

the accident occurred or even near the premises. He was

many blocks away and had not been on the premises the

day of the accident.” Henderson v. Sutton’s Food City,

supra, at 149. This sufficiently distinguishes the Henderson

case so that the rule announced there should not govern

the disposal of the case at bar.

The defendant contends that the depositions, answers

to interrogatories, and uncontroverted affidavits, filed

after the denial of his motion to dismiss, disclose that the

plaintiff’s action is barred by the Kansas Workmen’s Com-

pensation Act. I agree. The depositions taken and inter-

rogatories answered sufficiently show that the work in

which the plaintiff was engaged was clearly a necessary

incident to the defendant’s trade.

The plaintiff's answer to the defendant’s interrogatory

number three was to the effect that the defendant, in prop-

erly conducting its business, had to have its storage tanks

cleaned of sediment. It is also shown that the crude oil

is not saleable until the sediment is removed. And an

oil producer cannot continue operations without having the

sediment removed from its tanks periodically. David Dietz

deposition, pp. 69, 70, 74 (May 25, 1962). ?

For the sake of judicial consistency, the workman’s

compensation provisions are to be construed liberally

whether invoked by the workman or the statutory em-

ployer. Bright v. Bragg, 175 Kan. 404, 264 P.2d 494 (1953).

For the reasons hereinbefore stated, the defendant’s

motion for summary judgment is granted.

Dated at Kansas City, this 29th day of August, 1963. a

(Signed) Arthur J. Stanley, Jr.

Chief Judge

APPENDIX C

Opinion _

(Filed August 17, 1964)

, Appeal from the United States District Court

. for the District of Kansas

Before PHILLIPS, LEWIS and BREITENSTEIN, Circuit

Judges. ’

LEWIS, Circuit Judge. Y

Appellant-plaintiff was injured in an explosion of an

oil storage tank and sought recovery of resultant dam-

ages in a common law action of negligence filed in the

District of Kansas, naming appellee as defendant. Hold-

ing that plaintiff's exclusive remedy was limited to that

provided by the Kansas Workmen’s Compensation Act,

Kan. Gen. Stat., sections 44-501 et seq., the trial court

granted defendant’s motion for summary judgment. Upon

appeal the pivotal question remains whether under all the

undisputed facts and circumstances of plaintiff's employ-

ment he was a statutory employee of defendant under

section 44-503’ of the Kansas Act and consequently suf-

1. This section reads:

“(a) Where any person (in this section referred to as

principal) undertakes to execute any work which is a part

of his trade or business or which he has contracted to per-

form and contracts with any other person (in this section

referred to as the contractor) for the execution by or under

the contractor of the whole or any part of the work under-

taken by the principal, the principal shall be liable to pay

to any workman employed in the execution of the work any

compensation under this act which he would have been

liable to pay if ‘that workman had been immediately em-

ployed by him; and where compensation is claimed from

or proceedings are taken against the principal, then in the

application of this act, references to the principal shall be

substituted for references to the employer, except that the

amount of compensation shall be calculated with reference

Al0

fered compensable injuries. If recovery under the Act

is proper, such remedy is exclusive, Lessley v. Kansas

Power & Light Co., 171 Kan. 197, 231 P.2d 239, and the

judgment of the trial court is correct.

The facts are not in dispute. Defendant is engaged

in the business of operating oil leases, developing oil and

gas leases, drilling and pumping operations, and the stor-

ing of oil in tanks pending sale of the oil. The company.

had several such storage tanks near Garden City, Kan-

sas, where it stored oil prior to delivery to a pipeline com-

pany. When oil is so stored, sediment gradually accumu-

lates upon the tank floor, and when it reaches a depth

of approximately eight inches the purchaser requires

the tank to be cleaned as a condition to further acceptance

of oil from the particular tank. Defendant (and others

in the industry) did not use its own employees to clean

its storage tanks but contracted the work out to various

contractors iamiliar with and equipped to do the job.

During October, 1960, defendant’s tank number 246

required cleaning and defendant engaged one Donald

W. Edwards to perform the work. Edwards was a con-

tractor authorized to do such work at rates approved by the

Kansas Corporation Commission. On October 21, Edwards

sent a crew-of his employees to the site of tank 246, one

of whom was plaintiff. When plaintiff attempted to re-

move the tank’s access plate, a violent explosion occurred

and plaintiff was severely injured. Both plaintiff’s im-

to the earnings of the workman under the employer by

whom he is immediately employed. ... (c) Nothing in

this section shall be construed as preventing a workman;

from recovering compensation under this act from the con-

tractor instead of the principal. (d) This section shall not

apply to any case where the accident occurred elsewhere

than on, in or about the premises on which the principal

has undertaken to execute work or which are otherwise

under his control or management, or on, in or about the

execution of such work under hjs control or management.”

All

mediate employer,,Edwards, and the defendant were oper-

ating under the Kansas compensation act.

Whether under these circumstances plaintiff was a

statutory employee of appellee within the mandate of

section 44-503 of the Kansas compensation act should find

determination in the case’law of that state. However, our

examination of the many cases decided by the Kansas

Supreme Court which involve interpretation of the stat-

utory section lends little comfort for we are unable to find

a consistent and continuing emphasis upon those factors

deemed decisive in particular cases. In Purltable v. Green-

land Oil Co., 122 Kan. 720, 253 Pac. 219, an oil company

had contracted for the erection of a derrick on leased oil

land. During the construction of the derrick one of the

contractor’s workmen was fatally injured, and the work-

.. man’s widow brought a claim for workmen’s compensa-

“tion against the oil company. The court held that, although

the’ contractor was an independent contractor, since build-

ing the derrick was a part of the oil company’s business,

or necessarily incidental thereto, under section 44-503 the

workman was a statutory employee of the oil company

and covered by the workmen’s compensation statutes. The

reasoning in Purkable seems generally applicable to some

later cases: See Wells v. Eagle-Picher M. & S. Co., 148

Kan. 794, 85 P.2d 22; Bailey v. Mosby Hotel Co., 160 Kan.

258, 160 P.2d 701; but inapplicable to others: See Bittle v.

Shell Petroleum Corp., 147 Kan.’ 227, 75 P.2d 829; Truh-

licka v. Beech Aircraft Corp., 162 Kan. 535, 178 P.2d 252;

Waterbury v. Riss & Co., 169 Kan. 271, 219 P.2d 673.

In Lessley v. Kansas Power & Light Co., 171 Kan.

197, 231 P.2d 239, the- Kansas Supreme Court recognized

the contention that its decisions were not in complete har-

mony, but the court refused to “labor those decisions” and.

did not specifically overrule any of them. However, the

Al2

court held that an employee of an independent contractor

who was injured in an explosion while constructing addi-

tional electrical production facilities upon the premises

of the Kansas Power & Light Co. was a statutory em-

ployee of that utility. The court there stated: -

“A careful examination of the foregoing deci-

sions makes it crystal clear that under the facts of

the instant case, in determining the rights of the

parties under the provisions of section 44-503 at the

time appellant sustained his injuries, questions re-

lating to whether (1) the original contract under

which appellant was working was general in nature,

(2) his immediate employer or the original contractor

were independent contractors engaged in specialized

work, (3) the appellee possessed adequate facilities

to carry on the work covered by terms of the con-

tract, (4) the extent of control retained over the work

or workmen required for performance of its require-

ments or (5) other matters similar in character are

of little consequence. In the final analysis the acid

test to be applied is whether the work contracted to

be done was a part of appellee’s trade or business.

If it were, and the rule announced in such decision

is still the law, the parties were subject to the com-

pensation act.”

And see Durnil’v. Grant, 187 Kan. 327, 356 P.2d 872.

But a still later case, Henderson v. Sutton’s Food City,

Inc., 191 Kan. 145, 379 P.2d 300, denies statutory employee

compensation to a direct employee of an independent

contractor injured while en route to the appellee’s gro-

cery store for the exclusive purpose of picking up the

store’s trash. The Kansas court here placed emphasis

upon the fact that the injured person was not perform-

ing work ordinarily done by the appellee’s direct employ-

ees and was injured off the premises.

Al3

In the case at bar it is admitted that the cleaning of

the storage tanks was a necessary and continuing function

of defendant’s business but one not performed by de-

fendant’s direct employees. The injury occurred on de-

fendant’s premises. Since the proper application of these

facts finds no completely convincing solution in the ad-

judicated Kansas cases, we accept the trial judge’s inter-

pretation upon a matter of purely local law. Bartch v.

United States, 10 Cir., 330 P.2d 466, Cliborn v. Lincoln Nat'l

Life Ins. Co., 10 Cir., -....... | + , decided June 1964.

Such judgment is in accord with numerous pronounce-

ments of the Kansas Supreme Court and furthers that

state’s general policy of liberally construing the compen-

sation act to allow coverage whether invoked by the work-

man or the statutory employer. Bright v. Bragg, 175

Kan. 404, 264 P.2d 494.

The judgment is affirmed. ;

Al4

APPENDIX D

No. 44,047

TROY HATAWAY, Appellant,

PROCTOR & GAMBLE MANUFACTURING

COMPANY, a Corporation,

Appellee.

Syllabus by the Court

In an appeal by an employee of a construction com-

pany the record is examined of a tort action for damages

for personal injuries by reason of negligence of a soap

manufacturer, from the trial court’s order sustaining de-

fendant’s motion for summary judgment on the basis that

plaintiff's sole remedy is under the Workmen’s Compensa-

tion Act G. S. 1949, 44-505 (a) and (d), all as more fully

shown in the opinion and it is held; that the trial court

erred in sustaining defendant’s motion for oumanars judg-

ment.

_ Appeal from Wyandotte district court, division No.

4. WILLIAM H. McHALE, judge Opinion filed August

17, 1965.

Reversed.

The following opinion was prepared by Mr. Justice

Robb and approved by the court during his lifetime:

Al5

This appeal by the plaintiff in a tort action for dam-

ages for personal injuries by reason of negligence of the

defendant was taken from the judgment and order of the

trial court sustaining defendant’s motion for summary

judgment on the basis that plaintiff’s sole remedy is under

the workmen’s compensation act.

Plaintiff's counsel admits that if plaintiff is a statu-

tory employee as defined in G. S. 1949, 44-503 (a) and

(d), now K. S. A. 44-503 (a) and (d), then plaintiff cannot

bring this action for damages as an ordinary third party

tortfeasor.

, ~

The facts are not in dispute or argued. Plaintiff was

employed by Fruin-Colnon Contracting Company as a

labor foreman in defendant’s plant in Kansas City, Kan-

sas, during construction of an extension and addition to

its Tide Department. To expedite plaintiff's travel from

one location to another on defendant’s premises he was

furnished with a bicycle by Fruin-Colnon. Defendant

used a four-wheel fork lift on its premises which had a

front end fork with a wooden pallet and on July 9, 1962,

the day of the accident, a heavy two-wheel truck was

being transported thereon. It was alleged that through

the negligence of defendant’s operator of the fork lift, the

two-wheel truck was dislodged from the pallet and fell

upon and against plaintiff while he was passing by on

the bicycle, causing him to sustain severe injuries. His

injuries are not presently in dispute and will not be de-

tailed herein.

The trial court held that plaintiff, was a statutory

employee of defendant under the workmen’s compensa-

tion act and sustained defendant’s motion for summary

judgment. Plaintiff appeals from that finding and order.

Al6

The sole question presented for appellate review is

whether at the time of his injury plaintiff was an employee

of defendant and would be subject to and limited by the

following provisions of 44-503 (subcontracting) :

“(a) Where any person (in this section referred

to as principal) undertakes to execute any work which

.is a part of his trade or business or which he has

contracted to perform and contracts with any other

person (in this section referred to as the contractor)

for the execution by or under the contractor of the

whole or any part of the work undertaken by the

principal, the principal shall be liable to pay to any

workmah employed in the execution of the work any

compensation under this act which he would have been

liable to pay if that workman had been immediately

employed by him; and where compensation is claimed

from or proceedings are taken against the principal,

then in the application of this act, references to the

principal shall be substituted for references to. the

employer, except that the amount of compensation

shall be calculated with reference to the earnings of

the workman under the employer by whom he is im-

mediately employed. * * * (d) This section shall

not apply to any case where the accident occurred

elsewhere than on, in or about the premises on which

the principal has undertaken to execute work or

which are otherwise under his control or management,

or on, in or about the execution of such work under

his control or management.”

Plaintiff in support of his contention he was not such

a statutory employee, as above defined, cites Durnil v.

Grant, 187 Kan. 327, 356 P. 2d 872; Henderson v. Sutton’s

Food City, 191 Kan. 145, 379 P. 2d 300.

Defendant relies on Lessley v. Kansas Power & Light

Co., 171 Kan. 197, 231 P. 2d 239.

Al7

A number of arguments and authorities are sub-

mitted by counsel but the most pertinent and controlling

appear to be the three above-cited cases.

The statute in question which would make plaintiff

a statutory employee has been heretofore set out.

In the Lessley case, determined by motion for judg-

ment on pleadings ordered sustained, cited and relied on

by defendant, it was stated:

“In construing such statute we have held, so re-

peatedly that there can no longer be any question

regarding the rule, that a principal is liable for in-

_ jury sustained by workmen of an independent con-

tractor when the accident arises out of and in the

course of the principal’s trade or business. Indeed

~ ‘we have said the very purpose of such section is to

give the employees of such contractor a remedy

against the principal and to give its provisions any

other construction would simply mean an employer

subject to the compensation act could escape liability

for injuries received by persons in carrying on his

trade or business by the simple expedient of hiring

an independent contractor to do the work and let-

- ting him employ and direct the workmen. [Citations]

It is, of course, elementary that the statute is equally

applicable to employees of subcontractors. [Citation]

Appellant recognizes this rule and admits that the

principal cannot be held liable. under the common

law for the negligent injury of an employee of an

independent contractor where the work being per-

_. formed under the contract is part of the trade or busi-

ness of the principal. However, in fairness, it should

be here noted he insists the principal is not relieved

from liability under the common law simply by rea-

son of the fact the work of such a contractor may

- « bé required to equip the principal’s trade or business

- for white ” (p. 204.)

Al8 /

It should be noted that in the admitted facts in the

pleadings of the Lessley case, we find in regard to the

Kansas Power and Light Company that, 7

“It was authorized to do business as a public

utility and . . . by virtue of the articles of incorpora-

tion issued it by the State of Kansas it was author-

ized .. . to do all things necessary for the conduct of a

general electric . . . business, also to build, construct

. power plants, power houses... .” (Our emphasis.)

(p. 199.)

In the Durnil case the claimant’s immediate em-

ployer, Smith, delivered fruit and produce to retailers and

restaurants. On March 31, 1958, claimant was injured and

totally disabled while riding in Smith’s delivery truck due

to Smith’s “blacking out” during deliveries to Smith’s

customers.

Respondent, Grant, was a wholesale fruit and vege-

table distributor selling to retailers, sub-jobbers, other

wholesalers and the general public and had his own sales-

men who only solicited orders. Grant also had his own

delivery trucks and drivers. Smith received orders for

produce at his home or by a telephone to which he had

access at Grant’s place of business. Smith was also fur-

nished a desk by Grant to write up orders and to trans-

act busihess. Each morning Smith would go to Grant’s

with his truck, where he was furnished special dock space,

and he and claimant would go into the warehouse and

obtain fruit, etc., to fill the orders. The items were wrapped

by Smith and claimant with Grant’s paper and twine.

No assistance or supervision were given by Grant’s em-

ployees. House tickets were furnished Smith by Grant.

The wrapping process was done alongside Grant’s em-

ployees. Grant furnished Smith with the same price list

his employees used and Smith did not pay Grant for

the items when they were received by Smith.

A19

Sometimes Smith would have to obtain items from

other produce houses but their facilities were available to

Smith. Employees even loaded the items into the truck

at the other houses. When Smith could not make his de-

liveries, Grant’s employees would make them.

In the Durnil case (p. 337) the trial court found that

claimant was entitled to recover compensation under 44-

503 (a), and in a well-reasoned opinion, this court affirmed

that finding. The same statute was also involved in the

Henderson case, where on appeal to this court claimant in

a workmen’s compensation case sought to reverse the trial

court’s judgment denying compensation. :

The facts in the Henderson case were not in dispute.

In 1949 George Irving orally contracted with Sutton to re-

move trash and rubbish from the latter’s grocery store.

Payment was by the month and Sutton, without notice,

could terminate the agreement at any time, Sutton never

exercised direct supervision or control over Irving’s busi-

ness operation. Irving was required to pick up trash as

eften as necessary which was normally every day. Irving

was an independent businessman engaged in picking up

trash from numerous businesses in Topeka. In 1959 Irving

sold his trash route to William Miller who continued Irv-

ing’s style of operation. Miller was never subject to direc-

tion, supervision or control by Sutton. Prior to July or

August, 1961, Sutton had no knowledge of the sale by Irv-

ing to Miller. On May 27, 1961, Henderson, who had been

helping Miller out “quite a bit” was engaged by Miller to

pick up trash on Sunday morning, May 28, at Sutton’s

which was his only pick up on that day. En route to Sut-

ton’s Henderson “blacked out” and was injured in a single

vehicle accident. Henderson’s use of the Miller truck was —

unlimited, and he was free to do as he desired with it.

A20

In another well-reasoned opinion in the Henderson

case, we said:

“Insofar as the record discloses hauling trash is

. not work which the manager of a grocery super mar-

ket would ordinarily have done through — of

the business.” (p. 148.)

For this, and many other reasons, it was held that

Henderson’s immediate employer was an independent con-

tractor and the claimant was not a statutory employee of

Sutton under 44-503 (a).

In the Henderson case we found that the classifica-

tion of a trash hauler was.a separate and independent

~—— business operation.

Defendant’s Ohio charter stated that it was formed

for the purpose of,

. . - Manufacturing, refining or otherwise treating,

buying, selling and dealing in soaps, candles, oils,

greases, fats, glycerine and other kindred substances

and. products, including all by-products and other ma-

terials and products arising from or accompanying the

manufacture or refining of any or all of such articles,

and of acquiring, holding and disposing of all property,

real, personal and mixed, necessary or convenient for

carrying on said business in said State of Ohio, and

also in any or all of the other states and territories

and possessions of the United. States and in foreign

countries.”

Definitions for trade or business:

1. Webster’s New International Dictionary (2nd Edi-

tion)—of the 13 definitions, the seventh is most ap-

propriate: (7) “Act or business of exchanging com-

modities by barter, or by buying and selling for

money, commerce; traffic; as, international trade;

adverse influences on trade; a slump in the cotton

trade. Trade, in this sense, comprehends every spe-

pa Prameaneannnivenss

A21

cies of exchange or dealing, either in the produce of

land, in manufactures, in bills, or in money; but

it is chiefly used to denote the barter or purchase

and sale of goods, wares, and merchandise, either

by wholesale or retail.”

«)

2. Black’s Law Dictionary:

“The act or business of exchanging commodities by

barter; or the business of buying and selling for

money; traffic; barter.”

3% Kansas authority:

a. Gray v. Sedgwick Co., 101 Kan. 195, 165 F 867

(1917). “Business” is synonymous with “call-

ing,” “occupation” or “trade” and means any partic-

ular occupation or employment engaged in for a

livelihood or gain.

b. Lehman v. Grace Oil Co., 151 Kan. 145, 154,

98 P. 2d 430 (1940). The court cited with approval

Horrell, et al v. Gulf & Valley Cotton Oil Co., 15

La. A. 603, 131 So. 709, 712 (1931).

. A manufacturing concern upon organization,

may contract with an jiadependent contractor for

the erection of its factory building without retain-

ing liability under the Compensation Act to employ-

ees of the independent contractor who undertakés

the construction. It is no part of the trade, busi-

ness, or occupation of the manufacturing concern

to erect its factory building. Its business is to

operate it after its erection.” |

b. Massolini v. Driscoll; 114 Conn. 546, 552, 159 At.

480 (1932).

“*Trade’ commonly connotes the buying, selling or

exchanging of commodities. ‘Business’, however,

is a much broader term. In Easterbrook v. Hebrew

~ Ladies Orphan Society, 85 Conn. 289, 294, 82 Atl.

561, Justice Prentice stated: ‘The word “business”

A22

is one which is used with widely variant miean-

ings. It is used broadly to signify “that which...

engages or [occupies] time, attention, or labor, as

a principal serious concern or interest’’’ .”

c. King v. Palmer, 129 Conn. 636, 641, 30 A. 2nd

549 (1943).

“If the work is of such a character that it ordinarily

or appropriately would be performed by the princi-

pal employer’s own employees in the prosecution

of its business, or as an essential part in the main-

tenance thereof, it is a part or process of his work.”

We are convinced that in view of what has been

stated and discussed, that the Henderson case was con-

trolling here. Insofar as the record discloses the construc-

tion of the Tide Building was not work which the manager

of the Procter and Gamble soap company would ordinarily

have done through employees of the business of manufac-

turing soaps and detergents. It was Fruin-Colnon Con-

tracting Company’s business to construct the building for

the Tide addition on the Procter Gamble plant and it was

the latter’s business to operate the Tide addition after its

erection.

The judgment is reversed with the directions to the

trial court to overrule defendant’s motion for summary

judgment and proceed with the tort action for damages for

personal injuries by reason of negligence of the defendant

in accordance with the views expressed herein.

Parker, C.J. and Price, J. Dissenting.

A23 ‘

APPENDIX E

IN THE SUPREME COURT OF THE STATE OF KANSAS

TROY HATAWAY, ,

Appellant,

ae . No. 44,047

PROCTER & GAMBLE MANUFAC-

TURING COMPANY, a corporation,

Appellee. |

Motion for Rehearing

After forty years of handling workmen’s compensa-

tion cases, we now find an entirely new rule and concep-

tion in determining such cases, particularly when applied

to corporations. Apparently, the philosophy that Kansas

holdings directly in point are to be regarded by the court

has been abandoned, and now holdings from foreign juris-

dictions are to be favored. Also, resort to the dictionary

appears to be a requirement to establish what constitutes

trade and business or work incidental to or an integral

part thereof; and that one rule is to be applied where

the workman sues under the common law and another

where he seeks workmen’s compensation, arising out of

the same accident. In other words, stare decisis has ap-

parently lost its appeal.

The principal issue here involved was the question

of whether the construction of an addition to one of ap-

pellee’s soap company buildings came within what con-

stitutes engaging in trade and business or was work inci-

dental to or an integral part of the business.

Former decisions of this court had settled this ques-

tion, holding that the construction of an addition to a

company plant comes within the scope of the trade or

A24

business of such company, but these holdings have been

completely ignored by the writer of the present opinion

in this case.

As the court presently holds, the employee of the con-

tractor, while constructing an addition to the appellee’s

plant, is not to be considered a statutory employee of the

appellee company; in other words, he can maintain a com-

mon law action against the appellee company, not with-

standing that heretofore this court has held that only one

such action can be brought and that under the Workmen’s

Compensation Act.

As stated in the cited Lessley case:

“In this jurisdiction it is well settled that if a workman

can recover compensation under the workmen’s com-

pensation act.(G.S. 1935, Ch. 44, Art. 5) for an injury

the remedy is exclusive and he cannot maintain a

common law action for damages founded on negligence

against a party from whom he could have recovered

compensation under the act.” (Emphasis supplied).

(Crawford v. A. T. & S. F. Ry. Co., 166 Kan. 163, 165;

Duncan v. Perry Packing Co., 162 Kan. 79; Hoffman v.

Cudahy Pkg. Co., 161 Kan. 345; Bailey v. Mosby Hotel

Co., 160 Kan. 258; Jennings v. Kans. Pow. & Light Co.,

152 Kan. 469; Echord v. Rush, 124 Kan. 521; Lessley v.

Kans. Pow. & Light Co., 171 Kan. 203.)

Has this court thereby overruled the Lessley case? If

_ so, this court should so state and not leave these matters

in the air.

It is said in the Lessley case:

“Under decisions to which we have just referred we

have little difficulty in concluding, in fact it is a com-

mon knowledge, that steam boilers, turbines, genera-

tors and other equipment, as well as a building in

A25

wv which to house them, are a part of the integral equip-

ment necessary to the operation of a business of a

public utility which is engaged in the production

transmission and sale of electricity.” (P. 207) (Emphasis

supplied).

In two earlier decisions, one cited in the very Hen-

derson case that the court now states is controlling of the

case at bar, is Johnson ¥. Voss, 152 Kan. 586. There the

court held that although there were not sufficient em-

ployees to come under the Act, in passing on the similar

issue involved here said: %

“The construction of an addition to respondent’s grain

elevator for the purpose of increasing its storage

capacity was incidental to respondent’s grain elevator

business. ...” a

citing Raynes v. Riss & Co., 152 Kan. 383. There it was

held:

“The remodeling of respondent’s building was inct-

dental to their truck line business.” !

Thus, it isseen instead of relying upon the established

law in this state, as set out in the Lessley case, the writer

of the opinion has resorted to a number of holdings from

foreign jurisdictions, citing a Louisiana case (and leaving

out a portion pertinent here), although in the cited Hen-

derson case held controlling here, p. 10, the court said:

“We do not view workmen’s compensation cases from

foreign jurisdictions as too persuasive.”

In the Lessley case, evidence crept in showing that

the charter df the power and light company contained a

provision that it could construct new buildings or plants

in the operation of its business; and here appellee, by

way of explanation, noted the appellee’s charter permitted

A26

it to acquire property, either real, personal, and mixed.

“Acquired” means, according to the dictionary, by one’s

own efforts; thus we said appellee’s charter was broad

enough in scope to permit the construction of an addition

to its plant by its own efforts (or by contract). Certainly

this should not be a pertinent issue in future workmen’s

compensation cases.

The real issue is whether the work im question was

a reasonable incident of the employer’s trade in business.

However, if in future cases, charter provisions of a cor-

poration are to be held pertinent, then if~a corporation

should be performing work incident to its business not

permitted by its charter, this court would have to deny

compensation to an injured employee performing work

not covered by the charter. This presents a ridiculous

situation. The court should not have considered this item,

that is,

“. . courts do not regard a single fact as conclusive

but will look to all the facts and circumstances.”

(Durnil v. Grant, 187 Kan. 327, p. 335).

This court, in two recent compensation cases, written |

since the opinion here, did not inquire concerning the

charters or applicable provision of law, i.e., Jones v. City

of Dodge, 194 Kan. 772 (where this court held that an

addition or repair work to a stairway of a house, in which

airport manager of the city lived, was work incident of

the city’s work, nor in a similar holding, McCarty v. Great

Bend Bd. of Ed. and Great Bend Recreation Comm., 195,

Kan. 310 (where an independent plasterer was hired to

do some plastering in the building owned or leased by

the Commission). In the cited Lessley case it was said:

“Indeed we have said the very purpose of such sec-

.tion (where principal contractor uses another person

A27

to do work that is part of the principal’s trade or

business) is to give the employees of such contractor

a remedy against the principal and to give its pro-

visions any other construction would simply mean an

employer subject to the compensation act could escape

liability for injuries received by persons in carryt

on his trade or business by the simple expedient

hiring an independent contractor to do the work and

letting him employ and direct the workmen.” (p.

204) (between parenthesis, ours). |

Assume the contractor engaged in constructing this ina

tion to appellee’s plant became insolvent and had this

plaintiff, as one of the contractor’s employees sought com-

pensation under the Act (which he no doubt has already

done) and if the construction company was insolvent, there

is no doubt in-our minds, but what this court under the

liberal interpretation the court adheres to in compensa-

tion matters, would have allowed a recovery against the

Proctor and Gamble Company.

The real basis of the holding in the Henderson case,

which again the court states is controlling*of this case,

was that the accident did- not occur on the premises of

-the Sutton Food Company but had occurred before Hender-

son had arrived at the food store, premises; that his

boss had contracts with several different companies to

haul trash at the same time; that he could have gone

anywhere before going to the Sutton premises, thus he

had never become a statutory employee of the Sutton

Food City. (regardless of whether hauling trash was an

integral part of the food company’s business.) This, to

our notion, is the first time the court has passed on whether

hauling trash was an incident of a food store, but here

the court on three occasions has spoken, saying an addi-

tion to a building is an integral part of the work being

carried on the premises of the respondent.)

A28

Again in the cited Henderson case, Lehman v. Grace

Oil Company was cited, with the writer of this opinion

quoting from that decision, a Louisiana case, although

disregarding that in the Lessley case the court did not re-

gard the contention made in Lehman as sound authority

(p. 209).

So, here, we have a situatiole where the writer of the

opinion completely disregards the settled law of this state

and by inference brings in a new issue in workmen’s

compensation cases—that the charter of a corporation be

examined to determine whether the work is an incident

thereof and relies on foreign jurisdictions for authority to

support the holding that the building work in question

was not an integral part of appellee’s business, when at

the time the Kansas reports were replete with decisions

interpreting, defining and describing what is meant by

trade or business and what is incidental thereto, without

reference to the dictionary, i.e., an addition to a plant

is incidental to the business.

Here, Proctor and Gamble is a company that has been

engaged in the manufacture of soap and its derivatives

at this one location for more than sixty years to the

knowledge of this writer. A photo attached at the rear

of the appellee’s brief filed herein discloses the immensity

of this plant and shows numerous buildings, sheds, tanks

and equipment which have been accumulated on this com-

pany’s premises over the years, and shows the addition

being made to the Tide Dept. commencing above the third

floor of the existing Tide building. Naturally, the work of

repairing, replacing, reconstructing and making these ad-

ditions to this plant over all these years are surely in-

cidents of its business, for without equipment, sheds, tanks

and buildings, the company could not process their soap

and derivatives. Without a covering over the equipment

A29

the product of the company would not be protected from

the sun, dust, rain and snow. All go hand in hand and

form a part of the business.

We respectfully submit, as Cole Porter said in his

familiar ballad, we are, “bewitched, bothered and bewil-

dered” by the holdings in this opinion and believe in the

interest of clarification and sound legal principals, a re-

hearing should be allowed.

Respectfully submitted,

Williamson, Cubbison, Hardy & Cooke

By /s/ James K. Cubbison

- Attorneys for Appellee

727 Ann Avenue

Kansas City, Kansas

Drexel 1 1930

BLANK

PAGE

[ Omice Supreme Court, US.

LIBRARY... FILED

BSVyPHctes COURT, U. &, 3 0 1965

JOHN F. DAVIS, CLERK

SUPREME COURT OF THE UNITED

OCTOBER TERM, 1965

No. 729

HARRY L. COE,

Rig

VS.

HELMERICH & PAYNE, INC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

Lee E. WEEKS.

LEonARD O. THOMAS

J. D. Lysaucur

RICHARD MILLSAP

Rosert H. BINGHAM .

Ervin G. JOHNSTON

Mies D. MusTAIN

\ Home State Bank Building

Minnesota Avenue at Fifth Street

Kansas City, Kansas "es

Counsel for Respondent

E. L. Mupewnutt, Inc., 1108 Oak Street, Kansas City, Mo. 64106, HArrison 1-3080

PAGE

INDEX

ARGUMENT—

I. There Is No Federal Question Involved and the

Decision Based Upon the Kansas Law Is Not

One of General Interest, but Resolves Only the

Question of the Petitioner’s Right to Maintain a

Common Law Action for Damages under the

Undisputed Facts Disclosed by the Record Herein 1

/II. The Appellate Court Considered All Applicable

Local Law Before Rendering Its Final Decision 2

».. III. The Decision of the Kansas Supreme Court in

Hataway v. Procter & Gamble Manufacturing

Company Did Not Change the Kansas Law Ap-

plicable to This Case .............. 3

CONCLUSION oe

Authorities

CASES

Bailey v. Mosby Hotel Co., 160 Kan. 258, 160 P. 2d 701

(1945) $ 7

Bright v. Bragg, 175 Kan. 404, 264 P. 2d 494 (1953) .. 4,7

Coble v. Williams, 177 Kan. 743, 282 P. 2d 425 (1955) .. 4,7

Durnit v. Grant, 187 Kan. 327, 356 P. 2d 872 (1960) ... 7

Hataway v. Procter & Gamble, 195 Kan. ........ , No. 44,-

047, opinion filed August 17, 1965 2, 3, 4, 5,6

Henderson v. Sutton’s Food City, 191 Kan. 145, 379

a Ri pmluenan an ONT DMRREN ERNE UC aR OF Ian Ob. 6

Hoffman v. Cudahy Packing Co., 161 Kan. 345, 167 P.2d

613 (1946) ...... 7

Horrell et al. v. Gulf & Valley, etc., Inc., 15 La. “App.

603, 103 So. 709 (1930) re 5

Johnson v. Voss, 152 Kan. 586, 106 P. 2d 648 (1940) .. 7

Lehman v. Grace Oil Co., 151 Kan. 145, 154, 98 P. od

430 (1940) .............. 5

m INDEX

Lessley v. Kansas*Power & Light Co., 171 Kan. 197,

231 P. 2d 239 (1951)

McCarty v. Great Bend Board of Education, 195 Kan.

310, 403 P. 2d 956 (1965)

Primm v. Kansas Power & Light Co., 173 Kan. 443, 249

P. 2d 647 (1952)

Purkable v. Greenland Oil Co., 122 Kan. 720, 253 Pac.

219 (1927)

Raynes v. Riss & Co., 152 Kan. 383, 103 P. 2d 818 (1940)

Schroeder v. American Nat’l Bank, 154 Kan. 721, 121

P. 2d 186 (1942)

Sheahan v. Kansas Power & Light Co., 172 Kan. 399,

241 P. 2d 515 (1952) ..

Swift v. Kelso Feed Co., 161 Kan. 383, 168 P. 2d 512

(1946)

Wells v. Eagle-Picher M. & S. Co., 148 Kan. 794, 85

P. 2d 22 (1938) a

Whitaker v. Douglas, 179 Kan. 64, 292 P.2d 688 (1956) 4,7

Williams v. Cities Service Gas Co., 139 Kan. 166, 30

P. 2d 97 (1934) :

STATUTES

3 Kansas Statutes Annotated 803, Section 44-503 -...........

K.S.A. 44-503 (a)

K.S.A. 44-503 (d)

K.S.A. 508 (k) ”

a |

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1965

No. ¢29

HARRY L. COE,

Petitioner,

vs.

HELMERICH & PAYNE, INC.,

Respondent.

Ls]

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

ARGUMENT

I. cn

There Is No Federal Question Involved and the Decision

Based upon the Kansas Law Is Not One of General Interest,

but Resolves Only the Question of the Petitioner’s Right to

Maintain a Common Law Action for Damages under the

Undisputed Facts Disclosed by the Record Herein.

Petitioner does not conterid that any question of fed-

eral law was raised or decided herein. The jurisdiction of

the federal district court was based on diversity of citizen-

ship (Pet. 6) and the sole question presented to the trial

court and to the United States Court of Appeals for the

Tenth Circuit, was whether, under all the undisputed facts

and circumstances of Petitioner’s employment, he was a

statutory employee of Respondent under the Kansas Work-

men’s Compensation Act, 3 Kansas Statutes Annotated 803,

Section 44-503. Petitioner concedes that. if he was such a

statutory employee, his exclusive remedy was under the

Kansas Workmen’s Compensation Act and was thus barred

from maintaining this common law action for damages for

personal injuries against Respondent (Pet. 13). |

Il.

The Appeilate Court Considered All Applicable Local Law

Before Rendering Its Final Decision.

Petitioner states that the appellate court neglected to

consider the effect of a change i in local law occurring after

the decision of the trial court and before the final decision

of the appellate court (Pet. 10). This is not in accordance

with the facts disclosed by the record and is not fair to the

appellate court which, out of an overabundance of caution

and at Petitioner’s request, withheld its ruling on Peti-

tioner’s petition for rehearing for almost a year awaiting a

decision of the Supreme Court of Kansas. It was not until

after the Supreme Court of Kansas had ruled on the case

pending before it and Petitioner’s counsel had furnished the

Court of Appeals for the Tenth Circuit with copies of that

opinion, that the appellate court proceeded to rule upon the

petition for rehearing pending before it (Pet. 9). Thus,

the appellate court -hhad examined and considered the opin-

-_, No.

44, 047, opinion filed ‘August 17, 1965, ‘linia the eines of

its order denying the petition for rehearing. ° Subsequently,

Petitioner’s counsel filed a motion to convene the court

in banc pursuant to 28 U.S.C. § 46(c), and set out at length

therein his views on the opinion in Hataway. The record

shows that all active circuit judges of the circuit plus

one senior circuit judge considered and denied this motion.

Thus, both the three judge division and the court in banc

considered the opinion Petitioner contends was a change

in local law before the final decision of the appellate

court in this case. Petitioner’s allegation that the federal

courts should have examined the opinion before pro-

nouncing final judgment (Pet. 12) should properly under

the facts admitted in the petition (Pet. 9) have stated that

the appellate court, having examined the opinion of the

Kansas Supreme Court, should have Construed it the way

Petitioner desires it construed rather than the way an

impartial tribunal construed it. Respondent does not

quarrel with the cases cited in support of Petitioner’s Point -

I, but does state they do not involve the factual situation

presented here.

Il.

The Deci§ion of the Kansas Supreme Court ‘in Hataway v.

Procter & Gamble Manufacturing Company Did Not

Change the Kansas Law Applicable to This Case.

The pertinent provision of the Kansas law is Kansas

Statutes Annotated 44-503, Subcontracting:

“(a) Where any person (in this section referred

to as principal) undertakes to execute any work which

is a part of his trade or business or which he has con-

tracted to perform and contracts with any other per-

son (in this section referred to as the contractor) for

the execution by or under the contractor of the whole

or any part of the work undertaken by the principal,

the principal shall be liable to pay to’ any workman

employed in the execution of the work any compensa-

tion under’ this act which he would have been liable

to pay if that workman had been immediately em-

ployed by him; * * *.” (Emphasis supplied). —

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.