Mosely v. Empire Gas & Fuel Company

Citation281 S.W. 762,313 Mo. 225
PartiesROBERT H. MOSELY, Appellant, v. EMPIRE GAS & FUEL COMPANY
Decision Date12 March 1926
CourtUnited States State Supreme Court of Missouri

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Affirmed.

C W. Prince, E. A. Harris and James N. Berry for appellant.

(1) Plaintiff's action for compensation for injuries arising under the Workmen's Compensation Act of Kansas, can be maintained in the courts of Missouri, notwithstanding the provision of the Workmen's Compensation Act limiting the bringing of actions under it to the courts of Kansas; for the reason that "venue is no part of the right, and a state cannot create a transitory cause of action and at the same time destroy the right to sue on that transitory cause of action in any court having jurisdiction. Tenn. Coal Co v. George, 11 Ga.App. 221, 233 U.S. 354; A. T. & S. F. Ry. Co. v. Sowers, 213 U.S. 55; Kenney v. Supreme Lodge, 252 U.S. 411. (2) The Compensation Law of Kansas can have no extra-territorial effect; the provision therein, which goes to the place of filing suit applies merely to the manner in which the right shall be exercised, and is binding upon the courts of that state, yet because it affects the remedy only, it has no force beyond the boundaries of the State of Kansas, matters pertaining to the remedy being controlled by the lex fori. Ry. v. Sowers, 233 U.S. 70; Tenn. Coal Co. v. George, 233 U.S. 354; Pennoyer v. Neff, 95 U.S. 714. (3) The State has no power to create a right and limit its enforcement to the courts of that state. Tenn. Coal Co. v. George, 233 U.S. 354; Kinney v. Supreme Lodge, 252 U.S. 411. (4) Whenever by either common law or the statute law of a state, a right of action has been conferred by law and a legal remedy provided, the liability may be enforced and the right of action pursued in the courts of a sister state, which has jurisdiction of the subject-matter, and also jurisdiction of the parties, provided the enforcement of the right sought is not opposed by the settled policy of the state wherein it is sought to be enforced. Spokane Inland Ry. Co. v. Whitley, 237 U.S. 494; Tenn. Coal Co. v. George, 233 U.S. 354; Ry. Co. v. Sowers, 213 U.S. 55; Stewart v. Railroad, 168 U.S. 445; Dennick v. Railroad Co., 103 U.S. 11. (5) The restriction of said Kansas statute that "no action or proceeding provided for in this act shall be brought or maintained outside of the State of Kansas" is a violation of Section 1 of the Fourteenth Amendment to the Constitution of the United States, for the following reasons: (a) It attempts to abridge the privileges and immunities of the plaintiff in the enforcement of a fixed right, namely, the right to prosecute his cause of action in a court of Missouri having jurisdiction of the parties and the subject-matter. (b) It deprives plaintiff of his property without due process of law, in that it denies to him the right to the usual remedies for the collection and enforcement of his personal right for compensation for injuries received, after service of process has been had upon the defendant in the State of Missouri. (c) It denies to plaintiff the equal protection of the law; in that plaintiff is entitled to enforce the substantive right conferred by the Compensation law of the State of Kansas, but is frustrated by the unconstitutional provision in said law which undertakes to limit or restrict the place of bringing suit. (6) The Kansas Legislature in enacting the Workmen's Compensation Law of Kansas conferred upon any person sustaining injuries within the purview of said statute a right to compensation therefor. In denying to plaintiff process of court for the enforcement of said right, the safeguards of Sections 1 and 2 of Article 4 of the Constitution of the United States are violated and disregarded, in that a refusal to enforce the rights established by the Act is tantamount to a failure to give full faith and credit to all those substantial provisions of the statute which inhere in the cause of action. The presence in said law of the restrictive provision that "no action or proceeding provided for in this Act shall be brought or maintained outside of the State of Kansas," which is an invalid territorial restriction affecting the remedy only, furnishes no adequate reason for failure to give full faith and credit to all those substantial provisions in the statute which inhere in the cause of action. Kenney v. Supreme Lodge, 252 U.S. 411; Tenn. Coal Co. v. George, 233 U.S. 354; A. T. & S. F. Ry. Co. v. Sowers, 213 U.S. 55.

Guy M. Cowgill and Arthur C. Popham for respondent.

(1) The court did not err in overruling plaintiff's demurrer to defendant's plea in abatement. Harbis v. Cudahy Packing Co., 241 S.W. 960. (2) The court did not err in sustaining defendant's plea in abatement. Harbis v. Cudahy Packing Co., 241 S.W. 960; Shade v. Lime & Cement Co., 93 Kan. 260; Daley v. Peoples Building Assn., 178 Mass. 13; Mittenthal v. Mascagni, 183 Mass. 19, 97 Am. St. 404; Greve v. Aetna Live Stock Ins. Co., 81 Hun, 28, 30 N.Y.S. 668; Lessenden v. Railroad Co., 238 Mo. 247; Lehmann v. Ramo Film, Inc., 155 N.Y.S. 1032; McCarthy v. McAllister, 158 N.Y.S. 563, L. R. A. 1917D, 84. (3) The act is unenforcible in Missouri because: (a) Said act is inconsistent with local policy and Missouri practice. Genl. Stats. Kan. 1915, secs. 5896-5942, (as Amd. 1917, ch. 226); Railroad v. Sowers, 213 U.S. 67. (b) It requires intricate court machinery, rules, subsequent reviews, and other procedure non existing in Missouri. (c) It specifically confers statutory direction to district courts of Kansas and district clerks to make necessary rules and provisions legislatively decreed to be necessary, and said legislative authority is inoperative in Missouri. Rules must have statutory authority and are binding like statutes. Robinson v. Slussman, 253 S.W. 86; Bank v. Kropp, 181 S.W. 86. (d) Said act being and having been construed in Kansas as exclusively contractual, such construction is binding on this court, and the contract embracing local venue is likewise binding. Eighme v. Railroad, 249 S.W. 719; Shade v. Cement Co., 93 Kan. 260; Harbis v. Cudahy Packing Co., 241 S.W. 960. (e) Right and remedy are inseparably united. In such event, or where foreign act is not consistent with local policy as here, cited cases of appellant are authority for respondent on this point. Railroad v. Sowers, 213 U.S. 54; T. C. I. & Railroad Co. v. George, 233 U.S. 353; Dennick v. Railroad, 103 U.S. 11. (f) Kansas having judicially determined that claimant contracted to accept all the terms of the act, such contractual acceptance included venue and conclusively settles the question of venue. Wenzler v. Robinline S. S. Co., 277 F. 812; Shade v. Cement Co., 93 Kan. 260.

Lindsay, C. Seddon, C., concurs.

OPINION
LINDSAY

This is a suit in which plaintiff asks for judgment for damages under the Workmen's Compensation Law of the State of Kansas, for personal injuries alleged to have been sustained by him, in Kansas, while in the course of his employment by defendant company, in the State of Kansas, in the business of drilling for oil and gas. The defendant is alleged to be a corporation engaged in the business of drilling for oil and gas in Kansas and other states, but the state of its incorporation is not alleged, nor the place of plaintiff's residence.

The petition alleges that plaintiff was assisting in the removal of an iron casing from a well; that in said work a long cable was used, which was caused to wrap around a revolving drum; that defendant provided a drum without a flange fastened upon the end thereof; that by reason of the absence of such flange, the cable, while being drawn around the drum, was caused to slip off and strike the plaintiff, whereby the bones of his right arm were broken, and "that the use of plaintiff's right arm has been permanently disabled," and he alleges expenditure of money on account of his injury, pain suffered and the like. There is no allegation of negligence on the part of defendant.

Plaintiff pleaded and set forth certain provisions of the law then in force, found in Chapter 61, Article VI, of the General Statutes of Kansas, 1915, and as amended, Laws of Kansas 1917, Chap. 226.

The defendant filed a plea in abatement, alleging that plaintiff ought not to have or maintain his action in the Missouri court, and set forth the provisions of Sections 20, 23, and 24 of Chapter 226, Laws of Kansas 1917.

The sections pleaded by plaintiff were those concerning the liability of the employer for injuries sustained by his employees, operating under the terms of the law, and the rights of such employees thereunder. The sections pleaded by defendant were those which provided that no action or proceeding under the law could be brought outside of the State of Kansas, and defining the conditions under which the employer and the employee would be deemed to have accepted the provisions of the law. The trial court overruled plaintiff's demurrer to the plea in abatement, and plaintiff filed a reply. The reply pleaded that the Kansas law, insofar as it was an attempt to confine to the State of Kansas the trial of causes arising under the compensation law of that state, was in contravention of Article V and Article XIV of the Amendments to the Constitution of the United States and violative of the provisions of Section 2 of Article IV and Section 10 of Article I, as an attempt to abridge the privileges and immunities of the plaintiff, to deprive him of his property without due process of law, deny to him the equal protection of the laws, and deny him a fixed right in that it undertook to deny the plaintiff the right to litigate his cause of action, he having obtained service on defendant, in the State of Missouri. It was admitted that...

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