Source or prior law:

L. 1911, ch. 218, § 44; L. 1913, ch. 216, § 7; L. 1917, ch. 226, § 23; R.S. 1923, 44-542.

CASE ANNOTATIONS

Cases through 1973

STATUTE IS OPTIONAL (1-6)

1. Statute is optional and does not infringe constitutional due process provisions. Baker v. St. Louis Smelting & Refining Co., 145 Kan. 273, 280, 65 P.2d 284 (1937).

2. Election to operate under act optional not compulsory; never presumed. Thorp v. Victory Cab Co., 172 Kan. 384, 386, 387, 240 P.2d 128 (1952).

3. Employer presumed within act until contrary is made to appear by affirmative defense. Gorrell v. Battelle, 93 Kan. 370, 373, 144 P. 244 (1914).

4. Discussed in reviewing history of election provisions under act. Vick v. Morton, 172 Kan. 87, 90, 91, 92, 238 P.2d 467 (1951).

5. Subcontractor with less than five employees privileged to elect, and he is not within act unless he does so elect. Southern Surety Co. v. Parsons, 132 Kan. 355, 357, 358, 295 P. 727 (1931).

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

ELECTION

—In General (8-12)

8. Corporation's election not to come under act, when filed, is presumed regular; presumption is rebuttable. Rickel v. Railway Co., 104 Kan. 453, 179 P. 550 (1919).

9. Nonhazardous class not required to post notice they are under act; constitutional. Schmeling v. F. W. Woolworth Co., 137 Kan. 573, 574, 576, 577, 578, 21 P.2d 337 (1933); rehearing denied 138 Kan. 281, 282, 26 P.2d 265 (1933).

10. Election by employer before 1917 act, not effective afterwards. Railway Co. v. Fuller, 105 Kan. 608, 609, 611, 613, 186 P. 127 (1919).

11. Negative election by railroad not annulled by government control as to the railroad. (Pre-1939 amendment to federal employers' liability act). McFarland v. Railway Co., 112 Kan. 620, 621, 211 P. 635 (1923).

12. Every employer of railroad workmen and each succeeding employer for himself independently is within act unless a new election to reject is filed. (Pre-1939 amendment of federal act). Gimple v. Railroad Co., 108 Kan. 118, 121, 193 P. 1072 (1920).

—Effect of election (14-15)

14. Contributory negligence and other defenses listed in K.S.A. 44-544 are unavailable to an employer who elects not to come under act. Railway Co. v. Fuller, 105 Kan. 608, 611, 186 P. 127 (1919).

15. Employer who is entitled to elect and does elect not to come within act, forfeits defenses under K.S.A. 44-544. Palmer v. Julian, 161 Kan. 619, Syl. 4, 170 P.2d 813 (1946).

EXCLUSIVE REMEDY, WHEN (17-20)

17. Remedy under act is not exclusive if injury complained of is not within its provisions. Echord v. Rush, 124 Kan. 521, 523, 261 P. 820 (1927).

18. Employer not coming under act, employee entitled to other remedies. Smith v. Cement Co., 94 Kan. 501, 146 P. 1026 (1915).

19. Parties within compensation law; trial under other act; on appeal it is too late to first invoke provisions of act. Frere v. Railway Co., 94 Kan. 57, 58, 145 P. 864 (1915).

20. Remedies under workmen's compensation act exclusive where parties within act. Shade v. Cement Co., 92 Kan. 146, 147, 139 P. 1193 (1914).

Cases after 1973

21. History of act discussed in construing provisions of K.S.A. 44-510f (L. 1974, ch. 203, sec. 16). Boyd v. Barton Transfer and Storage, 2 Kan. App. 2d 425, 429, 580 P.2d 1366.