Whipple v. McLean

The opinion of the court was delivered by Hopkins, J.: A farm laborer employed on a farm, where he was furnished a house in which to live, a cow, a garden spot, his firewood, and paid a salary of $65 a month, sought to recover damages from his employer on account of injuries sustained while helping to saw wood on a neighbor’s farm to which he had been directed by his employer to go. A demurrer to plaintiff’s evidence was sustained and he appeals. The defendant'operates a farm near Wichita. He and a neighboring farmer, Greenwell, exchanged work. On November 8, 1925, the plaintiff under the direction or assent of the defendant, went to the Greenwell farm to assist in sawing wood. An ordinary saw with buck and without guards was furnished by another neighbor, Sandusky. The plaintiff, while in the act of bringing a piece of wood to the saw, tripped over a piece of wire and fell in such manner that 'he threw out his hand, the first three fingers of which were caught in the saw and severed or severely injured. He sued his employer to recover damages on the theory that where a servant is under the control and subject to the orders of his master, and while in obedience to such orders assists a third person in doing some work, he remains the servant of his own master and is entitled to recover damages for injuries suffered in doing such work. He con [207] tends that while in the performance of such duties, his employer failed to furnish him a safe place to work, and that the operation of the saw in question was within the provisions of the factory act, entitling him to recover. He cites and relies on Casper v. Lewin, 82 Kan. 604, 109 Pac. 657, and Pack v. Grimes, 107 Kan. 704, 193 Pac. 330. We are of opinion it would be an unwarranted extension of the factory act to apply it in the instant case. The statute provides: “Manufacturing establishments, as those words are used in this act, shall mean and include all smelters, oil refineries, cement works, mills of every kind, machine and repair shops, and, in addition to the foregoing, any other kind or character of manufacturing establishment, of any nature or description, whatsoever, wherein any natural products or other articles or materials of any kind, in a raw or unfinished or incomplete state or condition, are converted into a new or improved or different form.” (R. S. 44-107.) It cannot reasonably be said that a few farmers assembled in a neighbor’s feed lot to assist in cutting firewood are operating a manufacturing establishment. The legislature did not intend that the operation of various kinds of farm machinery should constitute a manufacturing establishment or a mill within the meaning of the words of the statute. The sawing of firewood on a farm ordinarily is a mere incident of the general farm work such as husking or shelling corn, separating the milk, cutting ensilage or operating a tractor or combine. Farmers who observe friendly helpfulness among their neighbors are not compelled to underwrite all the hazards of modern farm life, which would be included if the factory act could be extended to accidents like the one under consideration. The conclusion at which we arrive, that the provisions of the factory act do not' apply, renders discussion of the other questions raised in the briefs unnecessary. The judgment is affirmed.