to get to the well, which had been drilled men were regularly employed, 2 drillers and to the oil sand. When he came on duty about 2 tool dressers to each well. The number of 1 p. m., he operated the bailer for a time, outfits continuously in use depended on the and then, together with the defendant Davis, | number of drilling contracts the defendants washed some of the sand. They were drill- were able to obtain. Sometimes their entire ing in, and had reached the point where the equipment was busy, sometimes 2 or 3 strings character of the well would soon be revealed. were in use, and sometimes none at all. Stover was very much interested, and exhib- Whenever a string of tools was shut down, ited some excitement. A witness testified as the men who had been operating it were refollows: leased. For a period of four or five days previous to the casing pole incident, and for a week or more previous to the sand-washing incident, the defendants had no men em-ployed except the four, including Stover, who were drilling the petroleum company's well. Other work in progress when this well was commenced had been completed, and the workmen had been discharged. The pertinent statutes read as follows: "I saw him leave the rig with Davis to wash some sand. They went back of the engine house; Stover was stirring the sand; he was stooped over; and when he raised up he just went around and sat down on the tool rack. He said, 'My God, my head hurts me,' and put his hand up there. Somebody asked him if he got hurt, and he said 'No,' but he complained of his head hurting. Four or five asked him if he got hurt, and he told them all 'No.' Duff and Davis and I brought him to town in my car. He kept complaining of his head, and telling Davis he was going to die. Mrs. Stover came out, as we were taking him out of the car, and said 'John, how did you get hurt?' and he said 'Mama, I didn't get hurt'; and then we took him out of the car. We got the doctors as soon as possible." Soon after the doctors arrived, Stover died of apoplexy. "This act shall apply only to employment in the course of the employer's trade or business on, in or about a railway, factory, mine or quarry, electric, building or engineering work. "Engineering work' means any work in the construction, alteration, extension, repair, or demolition of a railway (as hereinbefore defined), bridge, jetty, dyke, dam, reservoir, underground conduit, pole lines constructed or used for carrying conductors, sewer, oil or gas well. " Laws 1917, c. 226, § 1, 2. for this law and the reason for its enactment, "It is hereby determined that the necessity exist only with regard to employers who employ a considerable number of persons. This act, therefore, shall only apply to employers by whom five or more workmen have been (employed) continuously for more than one month at the time of the accident: Provided, however, that employers having less than five workmen may elect to come within the provisions of this act in which case his employees shall be included herein, as hereinafter provided: And provided further, that this act shall apply to mines without regard to number of workmen employed." Gen. Stat. 1915, § 5902. While apoplexy may occur when the subject is at rest or asleep, severe exertion, such as lifting a heavy object, is a direct cause and, without doubt, the strain incident to Stover's pulling on the casing pole caused a cerebral hemorrhage. The effect of a cerebral hemorrhage depends on the portion of the brain in which it occurs, the amount of blood which escapes, and the rate of extravasation. Death may come quickly. In case of slight lesion and slow hemorrhage, the first symptoms may be of minor severity, and the attack may progress slowly to culmination, occurring some days later. During this period the person affected may be able to perform his usual work. Sometimes the blood clot is absorbed, and the patient apparently recovers. Generally the attack is a blow to When applied to the facts disclosed by the health, with marked residual physical effect. evidence, the meaning of the section last The patient should be put to bed and kept quoted is too plain to require interpretation. quiet, physical strain should be avoided, A definite minimum number of workmen blood pressure should be reduced, and emo- must have been employed, not intermittently, tional stress should be avoided. In this in- or part of the time, but continuously for a stance, Stover not only kept at work, but definite minimum period, computed from the worked under the excitement attending bring-time of the accident. Possibly, under some ing in the well, in which he was financially circumstances, fortuitous interruption affectinterested, and the result was inevitable. ing number of workmen or continuity of The district court found that Stover's death resulted from personal injury, by accident arising out of his employment. Approval of the finding would not benefit the plaintiff. Her action must fail, because the Workmen's Compensation Act (Gen. St. 1915, §§ 5896-5942), did not apply to her husband's employment. The defendants owned five "strings of tools." When all of them were in use, 20 employment may be taken into consideration. Upon that subject the court expresses no opinion. There is no room, however, for interpolating, by process of average, a mean number of workmen or mean time of employment; there is no way of bridging over a clear gap in number of men or continuity of employment; and the statute may not be restated in terms which would make it apply to some usual number of men, ordinarily em (205 P.) ployed most of the time during considerable | ing work on the farm where the well was periods when business was fairly good. In located. this instance there is no suggestion of pur The judgment of the district court is re pose to evade the statute. The accident was versed, and the cause is remanded, with dinot anticipated; and workmen were dis-rection to enter judgment for the defendants. charged because the defendants had no work All the Justices concurring. for them to do. Whatever the status of the defendants with reference to the compensation act earlier in November, the public interest and public policy, which prompted the statute, ceased to be concerned with their business when the number of employees fell below the statutory minimum. (110 Kan. 799) VANN v. MISSOURI, K. & T. RY. CO.* (No. 23339.) The plaintiff seeks to bring the employ (Supreme Court of Kansas. March 11, 1922.) ment within the terms of the statute by counting the casing crew of five men. This may not be done for two reasons. The casing crew worked but three days, November 29, November 30, and December 1, and the casing crew was not employed by the defendants. When drilling an oil well, the contractor puts in the casing, but it is no part of his business to remove casing when the well approaches completion. For that purpose casing crews are employed and paid by the owner of the well. The drillers supervise the work of pulling casing, the drillers and tool dressers work with the casing crew, and the contractor is paid by the owner for use of his tools and men while drilling operations are suspended. In this instance the defendants were paid $60 per day while the casing crew was at work. In practice, the owner of the well tells the contractor what casing he desires pulled. The contractor speaks to the manager or foreman of some casing crew, who brings his men, keeps accounts of their time, renders his bill to the owner, collects the sum due, and pays his men. (Syllabus by the Court.) J. Limitation of actions 119(2)—Filing of petition and issuance of summons not served upon defendant not "commencement" of the action. The filing of a petition and the issuance of a summons which was not served upon the defendant cannot be regarded as the commencement of an action within the meaning of the statute of limitations, and, where a judgment was given for plaintiff in such a proceeding on the service made, which was reversed on appeal and a dismissal ordered on the ground that the service made was void, a new action brought by plaintiff within one year after the reversal is not within the saving provision of section 22 of the Civil Code (Gen. St. 1915, § 6912). [Ed. Note.--For other definitions, see Words and Phrases, Second Series, Commencement.] 2. Limitation of actions 119(2) Running of statute not interrupted by service on one not authorized by defendant to receive it. The filing of a petition and the issuance of a summons, which was served upon another than the defendant or upon one not authorized to receive service, does not interrupt the running of the statute of limitations. Appeal from District Court, Labette County. Action by Hannah Vann gainst the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff and defendant appeals. Reversed and remanded, with directions. W. W. Brown, O. T. Atherton, and E. L. The defendants' workmen were taken from the city of El Dorado, where they resided, to the site of the well, and from the well to the city, by a taxicab driver who made two trips per day, one at noon and one at midnight. The plaintiff insists that the taxicab driver should be counted as one of the defendants' workmen. In its relation to the present controversy, application of the statute of 1917, quoted above, is limited to employment in the course of the employer's business on, in, or about engineering work, embracing construction of an oil well. Workmen affected by the act are workmen exposed to the pecul- JOHNSTON, C. J. This action was iar hazards of the locality (Bevard v. Coal brought by Hannah Vann against the M., K. Co., 101 Kan. 207, 165 Pac. 657; Hicks v. & T. Ry. Co., to recover damages for injuries Swift & Co., 101 Kan. 760, 168 Pac. 905), and alleged to have been sustained by her while in ascertaining the number of workmen she was a passenger on defendant's train necessary to bring an employer's business that was derailed through the alleged negli within the statute, none are to be counted ex- gence of the defendant. She recovered a cept those exposed to the hazards of the lo- judgment for $3,000, and defendant appeals. cality. Udey v. City of Winfield, 97 Kan. One of defendant's contentions is that 279, 155 Pac. 43. It seems quite clear the El plaintiff's action was barred by the statute of Dorado taxicab driver was engaged in the limitations. The injuries to plaintiff were transportation business, and not in engineer- sustained on September 12, 1915. She brought For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Rehearing denied April 14, 1922. an action to recover damages for the injuries on June 3, 1916. Service of the summons then issued was made, not upon an officer or agent of the defendant, but upon the agent of a receiver, who had obtained possession of the railroad and was operating it. The legality of that service was challenged and held to be invalid upon a former appeal, with the result that the action was dismissed. Vann v. Railway Co., 103 Kan. 857, 176 Pac. 652. On January 31, 1919, the present action was begun and service obtained upon the defendant. It is contended by plaintiff that the action was brought within time, under the provisions of the Civil Code, § 22 (Gen. St. 1915, § 6912), which provides that, if an action is commenced in due time and the judgment therein is reversed or if the plaintiff fail in the action otherwise upon the merits, a new action may be cominenced within one year after the reversal or failure. and that this action was brought in less than one year after the disposition of the earlier case in which there was no service upon defendant. [1] The plaintiff's action is manifestly barred, unless the former attempt to commence an action brings it within the saving provision of section 22. She insists that, under section 58 of the Code (section 6949), which provides that: "A civil action may be commenced in a court of record by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued thereon," We think the proper construction to be given to section 57 of the Code [section 58 of the present Code] is that, when a petition is filed and a summons served, or the first pubfirst publication relates back to the time of the lication is made within 60 days, such service or filing of the petition and præcipe and other necessary papers, and by such relation the suit is to be deemed to have been commenced at the date of their filing." 43 Kan. 69, 22 Pac. 1014. The time of filing a petition may be controlling where there is a question as to which of two courts acquires first and paramount jurisdiction in actions brought relating to the same subject-matter. The one in which a petition is first filed and a summons issued, upon which service is afterwards duly made, will gain paramount jurisdiction as against the other, in which the petition is filed at a later time, but its summons was first served. However the earlier filing of the petition and issuance of the summons will be without effect, if the summons is not served within the prescribed time. That is illustrated by the case of Chicago, K. & W. R. Co. v. Board of Com'rs of Chase County, 42 Kan. 223, 21 Pac. 1071, where the petition was filed in, and process issued by, the Supreme Court one day earlier than the filing of a petition in, and issuance of a summons from, the district court of Chase county, but the process from the latter court was first served. On the question of which had gained paramount jurisdiction it was held to be in the Supreme Court because of the earlier filing of the petition and issuance of the summons. but this precedence can only be given where timely service of the summons is afterwards made. If service is made upon the earlier petition, then, by the doctrine of relation, the action is deemed to have been commenc mons issued. If no service is made, and there is no appearance by the defendant, these preliminary steps will be nullities and cannot be regarded as the commencement of the action. In the case just cited it was said: --the action must be deemed to have been commenced when the petition was filed and summons issued in June, 1916, and that, as there was a reversal and the case first brought failed otherwise than upon the merits, she is within the provisions of sectioned when the petition was first filed and sum22, and that, as the new action was brought within one year after the reversal and failure, she is not barred by the statute of limitations. The filing of a petition and the issuance of a summons are the preliminary steps by which an action may be commenced and the defendant brought into court. When these steps are taken, the plaintiff may obtain an order of attachment or of arrest, and, for these purposes, the action may then be treated as commenced. Bannister v. Carroll, 43 Kan. 64, 22 Pac. 1012; Jones v. Warnick, 49 Kan. 63, 30 Pac. 115. These steps are effectual or nugatory, depending upon the fact that service of summons is subsequently made within the prescribed time and the court actually acquires jurisdiction of the defendant. By the doctrine of relation, the filing of the petition and the issuance of the summons may mark the commencement of the action. In the Bannister Case, where this section was considered in connection with other sections of the Code, it was said: "Although actual jurisdiction of a defendant cannot be obtained without service of summons or original process upon him, nor until the service is actually made, yet, when the service is actually made, the case must then be considered as having been commenced at the [citing authorities], and. by relation, the date date of the process served upon the defendant of such process will determine the time from which the right of the court to take jurisdiction to hear and determine the case, must be computed." The same rule of relation governs in applying the doctrine of lis pendens. When the petition is filed, the action is deemed to have been commenced and is pending so as to charge third parties with notice of its pendency, with the result that they cannot ac (205 P.) quire an interest as against the plaintiff in the subject-matter of the suit, but such notice will be without effect unless a summons is served or a publication made within 60 days after the petition is filed. If due service is made, the action is deemed to be begun and be pending from the filing of the petition, but, if no service is made, no action is pending, and the constructive notice arising from the filing of the petition is unavailing. Civ. Code, § 86 (section 6977). There is another provision to the effect that an injunction may be granted at the time an action is commenced, and it has been held that such an action is commenced at the date of the summons which is served upon the defendant. In re Sharp, 87 Kan. 504, 124 Pac. 532, Ann. Cas. 1913E, 460. While section 58 of the Code prescribes the initiative steps for commencing an action, other provisions of the Code are to be considered in its interpretation, and one that is directly applicable where the statute of limitations is involved is section 19 (section 6909). It provides that: "An action shall be deemed commenced within the meaning of this article, as to each defendant, at the date of the summons which is served on him, or on a codefendant who is a joint contractor, or otherwise united in interest with him," etc. section 22. In passing upon that question it was said: "That section has no application here, because it appears that no action by Eppler was commenced until long after the limitation period was complete. It is true he filed a bill of particulars, but, as no service was obtained, no jurisdiction was acquired and, as the trial court held, the attempted action was a mere nullity, which did not interrupt the running of the statute of limitations. The filing of a pleading and præcipe is not the commencement of an action. and it cannot be regarded as commenced until valid service has been obtained upon the defendant. * * It is contended that the provision applies because the action brought by Eppler before the justice of the peace failed otherwise than on the merits, but the difficulty with the contention is that an action was never in fact commenced." 99 Kan. 495, 162 Pac. 312. See cases there cited, and also Brock v. Francis, 89 Kan. 463, 131 Pac. 1179, 45 L. R. A. (N. S.) 756. Under the authorities it must be held that the action taken by plaintiff in the first proceeding was not the commencement of an action within the meaning of the statute of limitations, and that the new action brought by plaintiff was not wthin the saving provision of section 22 of the Civil Code. This determination renders it unnecessary to consider the trial errors assigned. The judgment is reversed, and the cause remanded, with the direction to enter judgment for defendant. All the Justices concurring. [2] This provision is specially applicable where a question arises as to whether an action has been commenced within the meaning of the statute of limitations, and that is the question presented in this case. Here no service of the summons was made, no jurisdiction of the defendant was acquired, and, within the meaning of the Code, no action was in fact commenced. There was nothing BRADLEY & VROOMAN CO. v. SUMMER. of any validity before the court but the petition and præcipe, and these, without service A (No. 22320.) (110 Kan. 662) (Syllabus by the Court.) 1. Appeal and error 119-No appeal lies where only matter involved is costs adjudged against appellant. No appeal lies from a decision where the only matter involved is the costs adjudged against the appellant. 2. Appeal and error 23-Court required to raise question of jurisdiction. of summons, did not operate to interrupt the (Supreme Court of Kansas. March 11, 1922.) running of the statute of limitations. service upon one not authorized to receive it does not interrupt the statute. The saving provision of section 22 proceeds on the theory that an action has been actually commenced which has resulted in a judgment that has been reversed or in which plaintiff has failed otherwise than on the merits. Where the steps first taken do not initiate an action, there is nothing to save under section 22, and here the statute continued to run until the bar had fallen. A case very closely in point is O'Neil v. Eppler, 99 Kan. 493, 162 Pac. 311. There an action had been brought in good time which went to a judgment, but, upon appeal, it was determined that, as there was no service, the judgment was absolutely void. Another action was brought when it was too late, unless it should Action by the Bradley & Vrooman Combe held that the first proceeding brought the pany against W. A. Summer. Judgment for new action within the saving provision of plaintiff on only a part of its claim. From Although the appellee does not raise the question of jurisdiction, it is the duty of the court, where the record discloses the lack of jurisdiction, to raise the question itself and dismiss the appeal. Appeal from District Court, Montgomery County. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes judgment awarding defendant costs, plaintiff appeals. Appeal dismissed. [2] Although the question of jurisdiction is not raised by the defendant, the lack of C. J. Bryant, of Independence, and E. H. power in the court to review the decision Koehl, of Caney, for appellant. Hal R. Clark, of Independence, for ap pellee. JOHNSTON, C. J. The only question raised by this appeal is the validity of an award of costs in favor of defendant when the court had given judgment in favor of plaintiff upon a part of its claim. Plaintiff sued the defendant for $427.41, alleged to be due upon an account for paint sold by it to the defendant. The defense was that the paints were represented to be of a certain quality, and that an agreement had been made that, if they were not up to that standard, the defendant had the right to return the same. Defendant claimed that, when the paints were received, and a part of the same had been disposed of, complaints of quality came in from customers, and upon investigation he found the paints were inferior in quality, and not up to the agreed standard. He then returned that part of the goods which had not been sold, and also sent plaintiff a check for $144.81, which he said was the balance due for the goods which had been sold. Plaintiff refused to accept the tender made, and brought suit for the amount for which the goods were sold. When the defendant answered setting up his defense, he renewed his tender of $144.81, and alleged that he was ready to pay the same to the clerk upon the order of the court. On a trial before a jury they found the amount due to plaintiff to be $144.81, and thereupon the court awarded the plaintiff that amount, but adjudged that the defendant recover the costs of the action taxed at $106.71. The contention of the plaintiff which appeals is that the tender as made was insufficient, in that it did not include an offer to pay the accrued costs, and that the verdict of the jury in its favor legally entitled it to a judgment for costs. is apparent, and it is the duty of the court to raise the question itself and dismiss the appeal. Depositor's 2. Banks and banking 15 the certificate and the plaintiff to the effect that Burch, J., dissenting. Original proceeding in mandamus by the Farm Mortgage Trust Company against Walter E. Wilson, Bank Com'r, and others. Judgment for plaintiff. Clad Hamilton and Clay Hamilton, both of Topeka, for plaintiff. Stone, Gamble, McDermott & Webb, of Topeka, Richard J. Hopkins, Atty. Gen., and J. K. Rankin, John G. Egan, J. B. Larimer, and Godard & Myers, all of Topeka, for de fendants. [1] The defendant plausibly argues that his tender of the full amount due upon the debt before the action was brought, and which he renewed and kept good in his answer, precludes a recovery of costs by plaintiff, but it must be held that the court is without jurisdiction to determine the question. The only matter in controversy is the decision as to the recovery of costs. In plaintiff's notice of appeal it expressly stated that this question is the only part of the judgment brought up for review. LimiJOHNSTON. C. J. The Farm Mortgage tations have been placed upon appeals, and Trust Company, which makes deposits in under the Code no appeal lies from a deci- other banking and trust institutions, brought sion where only costs are involved. Civ. this action to compel the bank commissioner Code, 566 (Gen. Stat. 1915, § 7470); Os- to issue to it a certificate payable out of the wald v. Railway Co., 104 Kan. 281, 178 Pac.bank guaranty fund of $10,000, the amount 621, and cases there cited. which it had placed in the Kansas State For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Rehearing denied April 14, 1922. |